Bermuda Consolidated Legislation

 

BERMUDA STATUTORY INSTRUMENT

RULES OF THE COURT OF APPEAL FOR BERMUDA

[made under section 9 of the Court of Appeal Act 1964 and brought into operation on 2 August 1965]

CONTENTS

ORDER 1
GENERAL RULE

1 Citation and commence ment

2 Interpretation

3 Service

4 Procedure and Practice

5 Enlargement of time and departure from Rules

6 Copy of trial Judge's notes

7 Registry

8 Hours of opening to public

9 Sessions

10 Notification of Sittings

11 Adjournment

12 Registrar

13 Other officers

14 Seal of the Court

15 Powers of Registrar

16 Books to be kept by Reg istrar

17 Covers

18 Setting aside or vary ing order of Registrar

19 Forms

ORDER 2
CIVIL APPEALS

1 Application

2 Notice and grounds of ap peal

3 Application for leave to appeal

4 Time

5 Notice of appeal, on whom served

6 Addresses for ser vice

7 Registrar's sum mons

8 Record of Appeal

9 Cost of Record

10 Security for costs

11 Additional security for costs

12 Transmission of record

13 Cross-appeal. No tice by respondent of con tention that judgment should be varied

14 Notice of prelimi nary ob jection to be filed

15 Withdrawal of ap peal

16 Appeal by respon dent where appeal with drawn

17 Non-compliance with con ditions of appeal

18 Exhibits

19 Control of pro ceedings during pendency of appeal

20 Submission by party not appear ing

21 Non-appearance of appel lant

22 Non-appearance of re spondent

23 Application so set aside ex parte judg ment

24 Interlocutory judg ment not to prejudice appeal

25 Power of Court to give any judgment and make any or der

26 Judgment

27 Order

28 Review of judg ment

29 Enforcement of judg ments

30 Execution of judg ment by Supreme Court

31 Costs

32 Fees

33 Proceedings by poor per sons

34 Costs in proceed ings by poor per sons

35 Matters not ex pressly pro vided for

36 Court to which applica tions should be made

37 Stay of execution

38 Interlocutory ap plications. Power of single Judge

ORDER 3
CRIMINAL APPEALS

Appeals from the Supreme Court in its original juris diction or in its Appellate jurisdiction in Criminal Cases

1 Application

2 Applications not spe cially provided for

3 Obligation on ap pellant to fill up forms of appeal no tices and an swer ques tions thereon

4(1) Notices of Appeal

4(2) How notices, etc., may be given or sent

4(3) Where appellant un able to write

4(4) Where question of sanity involved

4(5) Notice, etc., on be half of Corpora tions

5 Application for exten sion of time

6 Notice of applica tion for leave to appeal

7 Dealing with appli-
cations for leave to appeal and other pre liminary applica tions

8 Forwarding of pro ceedings of Supreme Court to Reg istrar

9 Fees

10 Record in Criminal ap peals from Supreme Court in its original juris diction

11 Appeals in crimi nal mat ters from Supreme Court in its appellate jurisdic tion

12 Records of sum ming up

13 Report of Judge of Court of Trial

14 Furnishing Judge of Court of Trial with materials for report.

15 Bail

16 Fines

17 Varying order for restitu tion of property

18 Non-suspension of Orders of Restitu tion

19 Restrictions on is sue of certificate of con viction

20 Abandonment of ap peal

21 Notice of aban donment of appeal may be withdrawn

22(1) Attendance of wit ness before the Court

22(2) Application to Court to hear wit nesses

22(3) Order appointing ex aminer

22(4) Furnishing exam iner with exhibits, etc., neces sary for exami nation

22(5) Notification of date of examination

22(6) Evidence to be taken on oath

22(7) Deposition of wit ness how to take

22(8) Expenses of wit nesses before ex aminer

22(9) Presence of parties at examination of wit nesses

23 Proceedings on refer ence

24(1) Notification of final determination of ap peals

24(2) Notification of ap peal in capital cases

25 Notification of re sult of appeal

26 Return of original deposi tions, etc.

27 Enforcement of or ders

28 Costs

29 Fees to assigned barris ters

30 Judgment of the Court

ORDER 4
COSTS IN CIVIL AND CRIMI NAL AP PEALS

1 Solicitor and client costs

2 Notice of taxation to be given by Registrar

3 Reference by con sent

4 Bills not to be al tered after being lodged

5 Default of appear ance at taxation

6 Discretion of Reg istrar

7 Basis of taxation

8 Order for costs

9 Excessive claims

10 Legal representa tive act ing as counsel

11 Costs improperly in curred by legal repre sentative

12 Notice of taxation

13 Party entitled to costs re fusing to lodge bill for tax ation

14 Manner of preparing bills for taxation

15 Endorsement of bills

16 Vouchers to be pro duced on taxa tion

17 Endorsement of length of docu ments

18 Costs where legal repre sentative is em ployed by two or more parties

19 Costs where trustees de fend separately

20 Appearance of party not inter ested

21 Instructions for af fidavits

22 Time and ad journment

23 Witnesses

24 Allowance of wit nesses' expenses

25 Allowances to cer tain per sons

26 Meaning of "folio"

27 Overriding discre tion

28 Improper agree ments

ORDER 5
MISCELLANEOUS

1 Waiver of non-compli ance with rules

2 Transitional provi sions

3 Appeals in disci plinary cases un der the Bermuda Bar Act 1974

FIRST SCHEDULE
Civil Forms

1 Notice of appeal

2 Notice of motion for leave to appeal

3 Summons to par ties by Registrar to settle record

4 Bond for costs on ap peal

5 Certificate of ser vice of notice of appeal

6 Certificate of Reg istrar that condi tions of ap peal have been fulfilled

7 Notice to parties of dis patch of record

8 Notice by respon dent of intention to contend that deci sion of the Supreme Court should be varied

9 Notice of intention to contend that judgment should be upheld on grounds other than those relied on by the Supreme Court

10 Notice of intention to rely upon a pre liminary objec tion

11 Notice of with drawal of
appeal

12 Notice of with drawal of appeal by agreement

13 Certificate of non-compli ance with con ditions of ap peal

14 Form of declara tion that a party does not wish to be present or repre sented at the hearing

15 Certificate of the Order of the Court

SECOND SCHEDULE
Criminal Forms

Rule

1 Notice of appeal from de cision of the Supreme Court sitting as a Court of first in stance

2 Notice of applica tion for leave to appeal from deci sion of the Supreme Court sitting as a Court of first in stance

3 Notice of appeal from de cision of the Supreme Court sitting in its appel late juris diction

4 Notice of applica tion for leave to appeal from deci sion of the Supreme Court sitting in its ap pellate ju risdiction

5 Notice of appeal by prose cutor

6 Notification by Regis trar of Supreme Court of result of applica tion for leave to appeal

7 Notice of applica tion for extension of time within which to appeal

8 Notification to ap pellant of a single Judge's decision

9 Notice of appeal by ap pellant from re fusal or a single Judge

10 Recognizance of bail of appellant

11 Recognizance of appel lant's sureties

12 Warrant for arrest of ap pellant on bail

13 Notice of aban donment of appeal

14 Notification of abandon ment of ap peal

15 Notice of applica tion for leave to withdraw an abandonment of appeal

16 Order to witness to attend Court for ex amination

17 Appellant's appli cation for further witnesses

18 Notice to witness to attend before an ex aminer

19 Caption for depo sition of witness examined before an examiner

20 Notification to ap pellant of result of ap plication

21 Notice to authori ties of re sult of ap plication

22 Notification to ap pellant of the re sult of his appeal

23 Notice to authori ties of re sult of ap peal

THIRD SCHEDULE
Fees

FOURTH SCHEDULE
Scales of Fees payable to bar risters and attorneys

FIFTH SCHEDULE
Fees payable to barristers and attorneys assigned to rep resent an appellant

ORDER 1

General

1/1 Citation and commencement

1 These Rules may be cited as the Rules of the Court of Appeal for Bermuda and shall come into operation on the second day of August, 1965.

1/2 Interpretation

2 In these Rules, unless it is otherwise expressly provided or re quired by the context:

"appeal" includes an application for leave to appeal;

"appellant" means a party appealing from a judgment or applying for leave in that behalf and includes his legal representative;

"Registrar" means Registrar of the Court;

"the Court" means the Court of Appeal for Bermuda;

"Judge" means the President or a Justice of Appeal;

"Supreme Court" means the Supreme Court of Bermuda;

"legal representative" means a person who has been admitted to practise in the Court or in the Supreme Court and who has been retained by or assigned to a party to represent him in the proceedings before the Court;

"record" means the aggregate of papers relating to an appeal (including the pleadings, proceedings, evidence and judg ments) proper to be laid before the Court on the hearing of the appeal;

"President" means the President of the Court or such other Judge of the Court who shall for the time being be presiding in the Court;

"Registrar of the Supreme Court" includes the Assistant Regis trar of the Supreme Court, and any officer of the Supreme Court exercising functions analogous to those of the Registrar of the Supreme Court;

"respondent" in a civil appeal means any party (other than the appellant) directly affected by the appeal, and in a criminal appeal means the person who undertakes the defence of the judgment appealed against.

"Rules" means these Rules or any amendment thereof or addition thereto made under the powers conferred by the Act, and in cludes the Forms appended to these Rules.

"the Act" means the Court of Appeal Act, 1964 [title 8 item 4] .

1/3 Service

3 (1) Any reference in these Rules to an address for service means an address within the jurisdiction where notices, pleadings, or ders, summonses, warrants and other documents, proceedings, and written communications, if not required to be served personally, may be left, or to which they may be sent.

(2) Where under these Rules any person has given an address for service, any notice or other written communication which is not re quired to be served personally shall be sufficiently served upon him if it is left at that address or sent by registered post to that address, and in any case where the date of service by post is material, service shall, until the contrary is proved, be deemed to have been effected at the hour of five o'clock in the afternoon of the seventh day after the day of posting: provided that if any period within which service is, by the Act or these Rules, required to be effected shall expire between the said date of post ing and the said seventh day, such period shall be deemed to be ex tended up to and so as to include such seventh day, but no longer.

(3) Where under these Rules any notice or other application to the Court, or to the Supreme Court, is required to have an address for service endorsed on it, it shall not be deemed to have been properly filed unless such an address is endorsed on it.

(4) Any person desiring to change his address for service shall notify the Registrar, who shall thereupon communicate the new address for service to anyone to whom he may have communicated the former address.

(5) Where any person has given the address of a legal practi tioner as his address for service and the legal practitioner is not, or has ceased to be, instructed by him for the purpose of the proceedings con cerned, it shall be the duty of the legal practitioner to inform the Regis trar as soon as may be that he is not authorised to accept service on be half of the client, and if he omits to do so he may be ordered to pay any costs occasioned thereby.

(6) Except as may be otherwise provided in these Rules or in any other written law, no notice or other written communication in pro ceedings in the Court, need be served personally except the notice of ap peal:

Provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the respondent, no objection to the hear ing of the appeal shall lie on the ground that the notice of appeal was not served personally.

(7) Where the Attorney General or any other public officer is a party ex officio or as representing the Crown in any proceedings in the Court, whether civil or criminal, any notice or other document may be served on him by leaving it at or by sending it by registered post to his chambers or office and service in this manner shall be as effective as if it were personal service.

(8) Where any document is required by these Rules to be served personally, it shall be sufficiently served if it is served in the manner prescribed by law for the personal service of a writ of summons issued by the Supreme Court, and if it appears to the Court that for any reason personal service cannot be conveniently effected, the Court shall have the same power as the Supreme Court to direct that service be ef fected in some other way.

(9) Where any person out of the jurisdiction is a necessary or proper party to an appeal, the Court may allow service out of the juris diction of any document required by the Act or these Rules to be served upon such party.

(10) Every application for an order for leave to serve any such document on a party out of the jurisdiction shall be supported by evi dence on affidavit or otherwise showing in what place or country such party is or probably may be found, and the grounds upon which the ap plication is made.

(11) An order giving leave to effect service out of the jurisdiction shall prescribe the mode of service, and shall limit a time after such ser vice within which such party shall comply, in the case of a document re-
quiring compliance with any terms thereof, with such terms, such time to depend on the place or country where or within which the summons is to be served, and the Court may receive an affidavit or statutory declara tion of such service having been effected as prima facie evidence thereon.

1/4 Procedure and Practice

4 The procedure and practice of the Court shall be prescribed by these Rules.

1/5 Enlargement of time and departure from Rules

5 The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interests of justice.

1/6 Copy of trial Judge's notes

6 Every person desiring to appeal to the Court from a judgment of the Supreme Court given in its original jurisdiction shall be entitled, on making, either by himself or by his legal representative, written applica tion to the Registrar of the Supreme Court, and on payment of the pre scribed fees, to a copy of the notes of evidence taken by the trial Judge.

1/7 Registry

7 (1) The Registry of the Court is situate at the Sessions House, Hamilton, and, except when otherwise expressly provided, all documents and proceedings shall be filed in this Registry.

(2) A document may be filed in the Registry of the Court either by being delivered there by the party or his legal representative or agent in person or by being sent there by registered post and in either case shall be accompanied by a remittance for the appropriate fee.

1/8 Hours of opening to public

8 The Registry of the Court shall, subject to the directions of the President, be open to the public on every day in the year from nine o'clock in the forenoon to five o'clock in the afternoon, except:

(a) on Sundays or on any public holidays; or

(b) on Thursdays and during vacations of the Supreme Court when the Registry shall be open to the public from nine o'clock in the forenoon to twelve o'clock noon.

1/9 Sessions

9 Sessions of the Court for the hearing of all such applications as may be dealt with by a Judge under the powers conferred by section 19 of the Act shall be held at such times as a Judge may direct.

1/10 Notification of Sittings

10 (1) The sittings of the Court and the matters to be disposed of at such sittings shall be advertised and notified in such manner as a Judge may direct:

Provided that the Court may in its discretion hear any appeal an deal with any other matter whether or not the same has been advertised.

(2) This Rule shall not apply to the hearing of any matter by single Judge.

1/11 Adjournment

11 The Court may at any time on application or of its own accord adjourn any proceedings pending before it from time to time.

1/12 Registrar

12 The Registrar shall have the custody of the records of the Court an shall exercise such other functions as are assigned to him by these Rules.

1/13 Other officers

13 The President may assign, and the Registrar may, with the ap proval of the President, delegate to any officer of the Supreme Court Registry an functions required by these Rules to be exercised by the Registrar.

1/14 Seal of the Court

14 Subject to the provisions of this Rule, the Seal of the Court and any duplicate thereof shall be kept in custody of the Registrar, and except as the President may otherwise direct shall not be affixed to any writ, rule, order or other process or to any document without the express au thority of the Registrar.

1/15 Powers of Registrar

15 The Registrar shall have the same jurisdiction, powers and du ties as the Masters of the Supreme Court, Clerks of Criminal Courts, Registrars and the like officers of the Supreme Court of Judicature and
the Court of Criminal Appeal in England, in addition to such other jurisdic tion, powers and duties as are given him by these Rules or such further powers and duties as the President may direct.

1/16 Books to be kept by Registrar

16 (1) The Registrar shall keep:—

(a) a Criminal Appeal Book; and

(b) a Civil Appeal Book;

each of which shall contain an in dex in alphabetical order.

(2) The following particulars shall be entered in the Crimi nal Appeal Book, and the Civil Appeal Book:

(a) the number of the appeal;

(b) the names of the appellant and respondent;

(c) the Court from which the appeal is brought;

(d) the date and place of hearing of the appeal;

(f) the subject matter of the appeal;

(g) the judgment of the Court;

(h) any subsequent proceedings and remarks.

1/17 Covers

17 As soon as notice of appeal is delivered the Registrar shall pre pare a cover in which pleadings or documents relating to the appeal or case shall be filed and on the front page thereof shall be recorded partic ulars of such pleadings or documents and the dates on which they are received.

1/18 Setting aside or varying order of Registrar

18 Any person aggrieved by anything done or ordered to be done by the Registrar other than anything ordered or done by the direction of the President, may apply to a Judge to have the act, order or ruling com plained of set aside or varied and the Judge may give such directions or make such order thereon as he thinks fit. Such application shall be made by notice of motion supported by affidavits setting out the com plaint and the relief sought.

1/19 Forms

19 The forms set out in the First and Second Schedules to these Rules, or forms as near thereto as circumstances permit, shall be used in all cases to which such forms are applicable.

ORDER 2

CIVIL APPEALS

2/1 Application

1 This order shall apply to appeals to the Court from the Supreme Court acting either in its original or its appellate jurisdiction in civil cases, and to matters related thereto.

2/2 Notice and grounds of appeal

2 (1) Without prejudice to the provisions of rule 3(1)(e) of this Or der, all appeals shall be brought by notice (hereinafter called "the notice of appeal") to be filed in the Registry of the Supreme Court within the following periods, that is to say—

(a) in the case of an appeal from an interlocutory order, seven days from the date on which leave to appeal is granted; and

(b) in any other case, six weeks calculated from the date on which the judgment or order appealed against was signed, entered or otherwise perfected.

(2) The notice of appeal shall be signed by the appellant and shall—

(a) set forth the grounds of appeal;

(b) state whether the whole or part only of the decision of the Supreme Court is complained of (in the latter case specifying such part);

(c) state the exact nature of the relief sought;

(d) state the names and addresses of all parties directly af fected by the appeal;

(e) be accompanied by a sufficient number of copies for ser vice on all such parties;

(f) be endorsed with the address for service of the person or persons filing the notice of appeal.

(3) If the grounds of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated.

(4) The notice of appeal shall set forth concisely and under dis tinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

(5) No ground which is vague or general in terms or which dis closes no reasonable ground of appeal shall be permitted, save the gen eral ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on appli cation by the respondent.

(6) The appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the no tice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.

(7) Notwithstanding the foregoing provisions the Court in de ciding the appeal shall not be confined to the grounds set forth by the appellant:

Provided that the Court shall not if it allows the appeal rest its decision on any ground not set forth by the appellant unless the respon dent has had sufficient opportunity of contesting the case on that ground.

(8) A notice of appeal or a respondent's notice (as provided in rule 13 of this Order) may be amended—

(a) by or with the leave of the court, at any time;

(b) without such leave, by supplementary notice served upon each of the parties upon whom the notice to be amended was served, not later than seven days before the first day of the sitting of the Court at which the ap peal is set down for hearing.

2/3 Application for leave to appeal

3 (1) Where an appeal lies only by leave of the Court or of the Supreme Court, any application to either Court shall be made by notice of motion ex parte in the first instance and the following provisions shall apply:

(a) where the application is made to the Supreme Court, the notice of motion shall be filed with the Registrar of that Court not late than fourteen days after the date of the decision of the Supreme Court;

(b) if the application is refused by the Supreme Court and the intending appellant desires to apply to the Court for leave to appeal, he shall file his notice of motion with the Registrar not later than seven days after such refusal;

(c) unless the application (whether to the Court or to the Supreme Court) is dismissed or it appears to the Court to which the application is made that undue hardship would be caused by an adjournment, that Court shall adjourn the application and give directions for the ser vice of notice thereof upon the party or parties affected;

(d) if leave to appeal is granted by the Supreme Court, the appellant shall file a notice of appeal;

(e) where leave to appeal is granted by the Court, the time, prescribed by Rule 2 of this Order, within which notice of appeal must be filed shall run from the date when such leave is granted.

(2) Every notice of motion filed in pursuance of paragraph (1) of this Rule shall set out the grounds of the application and shall be accompanied by an affidavit in support thereof and by a statement of the grounds of the intended appeal formulated in accor dance with Rule 2 of this Order.

2/4 Time

4 (1) An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the Supreme Court.

(2) Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and sub stantial reasons for the failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.

(3) An application for enlargement of time within which to ap peal may be heard and determined by a single Judge; but, if the Judge refuses an application made under this provision, the party aggrieved by such refusal shall be entitled to have the application heard and deter mined by the Court.

2/5 Notice of appeal, on whom served

5 (1) The Registrar of the Supreme Court shall, after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal. It shall not be necessary to serve any party not directly affected:

Provided that the Court may, of its own motion, or on the appli cation of any person claiming to be affected, direct notice to be served on all or any parties to the action or other proceeding or upon any person not a party and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just and make such order as might have been made if the persons served with such notice had been originally parties to the appeal.

(2) Notwithstanding anything in Rule 3(6) of Order 1, where in any proceeding in the Supreme Court a party has given an address for service, notice of appeal from any decision given in such proceeding may be served on such party at such address for service, notwithstanding that the address may be that of a legal representative who has not been retained for the purpose of an appeal, and notice of any application preparatory or incidental to any such appeal may be served in like man ner at any time before the date on which the respondent gives notice of his address for service in accordance with the immediately following rule.

2/6 Addresses for service

6 (1) Every person who by virtue of service on him of a notice of appeal becomes a respondent to any appeal or intended appeal shall within fourteen days after service on him of the notice of appeal file in duplicate with the Registrar of the Supreme Court notice of a full and sufficient address for service in such number of copies as the said Reg istrar shall require. The Registrar of the Supreme Court shall forthwith send a copy of the notice of address to the Registrar and shall cause a copy thereof to be served on the appellant.

(2) Such notice may be signed by the respondent or his legal representative.

(3) If any respondent fails or omits to file such notice of ad dress for service it shall not be necessary to serve on him any other pro ceedings in the appeal or any notice of hearing thereof

(4) Any party to an appeal or intended appeal may change his address for service at any time by filing and serving on all other parties to the appeal or intended appeal notice of such change.

(5) An address for service given for the purpose of any appeal shall be effective for the purposes of any application for leave to appeal to Her Majesty in Council from any decision given in that appeal and of any application or matter in connection with such application for leave to ap peal as aforesaid.

2/7 Registrar's summons

7 (1) The Registrar of the Supreme Court shall after the expira tion of the time prescribed for filing notice of address for service summon [Civil Form 3] the parties before him to—

(a) settle the documents to be included in the record of ap peal;

(b) fix the amount to be deposited by the appellant to cover the estimated cost of making up and forwarding the record of appeal;

(c) fix the amount to be deposited by the appellant or se cured by bond for the due prosecution of the appeal and the payment of any costs.

(2) The Registrar of the Supreme Court shall, whether any of the parties attend or not provided that notice has been duly served on those parties who filed an address for service, proceed to settle and de termine those matters in accordance with Rules 8, 9 and 10 of this Order.

2/8 Record of Appeal

8 (1) The Record of appeal shall contain the following documents in the order set out—

(a) the index;

(b) a statement by the Registrar of the Supreme Court giving brief particulars of the case and including a schedule of the fees paid;

(c) copies of the documents settled by the Registrar of the Supreme Court for inclusion in the Record of Appeal in accordance with Rule 7 of this Order;

(d) a copy of the notice of appeal and other relevant docu ments filed in connection with the appeal.

(2) The Registrar of the Supreme Court, as well as the parties shall endeavour to exclude from the record all documents (more partic ularly such as are merely formal) that are not relevant to the subject
matter of the appeal and generally to reduce the bulk of the record as far as practicable taking special care to avoid duplication of documents and unnecessary repetition of headings and other merely formal parts of doc uments; but the documents omitted to be copied shall be enumerated in a list at the end of the Record. Where part or parts only of any lengthy document are directly relevant to the subject matter of the appeal, it shall be permissible to omit to copy such parts of the document as are neither directly relevant to the subject matter of the appeal nor neces sary for the proper understanding of the part or parts that are so rele vant.

(3) If the Registrar of the Supreme Court or any party objects to the inclusion of a document on the ground that it is unnecessary or ir relevant and the other party nevertheless insists upon its being included, the document shall be included and the record shall, with a view to the subsequent adjustment of the costs of and incidental to the inclusion of such document, indicate in the index of papers or otherwise the fact that, and the party by whom the inclusion of the document was objected to.

(4) It shall not be necessary for copies of individual documents to be separately certified but the Registrar of the Supreme Court shall certify as correct each copy of the Record transmitted by him in accor dance with these Rules.

2/9 Cost of Record

9 The appellant shall within such times as the Registrar of the Supreme Court directs deposit with him a sum fixed to cover the esti mated expense of making up and forwarding the record of appeal calcu lated at the full cost of one copy for the appellant and one-fifth cost for each of the five copies for the use of the Court.

2/10 Security for costs

10 The appellant shall within such time as the Registrar of the Supreme Court directs deposit [Civil form 4] such sum as shall be determined by such Registrar or give security therefor by bond with one or more sureties to his satisfaction as such Registrar may direct for the due prosecution of the appeal and for the payment of any costs which may be ordered to be paid by the appellant:

Provided that no deposit or security shall be re quired where the deposit would be payable by the Crown or a Govern ment department.

2/11 Additional security for costs

11 The Court may, where necessary, require security for costs or for performance of the orders to be made on appeal, in addition to the sum determined under Rule 10 of this Order.

2/12 Transmission of record

12 (1) The Registrar of the Supreme Court shall [Civil forms 5 and 6] transmit the record when ready together with—

(a) a certificate of service of the notice of appeal;

(b) a certificate that the conditions imposed under Rules 9 and 10 of this Order have been fulfilled;

(c) five copies of the record for the use of the Judges;

(d) the docket or file of the case in the Supreme Court con taining all papers or documents filed by the parties in connection therewith;

to the Registrar of the Court.

(2) The Registrar of the Supreme Court shall [Civil form 7] also cause to be served on all parties mentioned in the notice of appeal who have filed an address for service a notice that the record has been forwarded to the Registrar of the Court who shall in due course enter the appeal in the cause list.

2/13 Cross-appeal. Notice by respondent of contention that judgment should be varied

13 (1) It shall not be necessary for the respondent to give notice of motion by way of cross-appeal; but if a respondent intends upon the hearing of the appeal to contend that the decision of the Supreme Court should be varied, or that it should be affirmed on grounds other than those relied on by that Court he shall within one month after service upon him of the notice of appeal cause written notice of such intention [Civil forms 8 and 9] to be given to every party who may be affected by such contention, whether or not such party has filed an address for service. In such notice the re spondent shall clearly state the grounds on which he intends to rely and within the same period he shall file with the Registrar of the Supreme Court six copies of such notice of which one shall be included in the record, and the other five copies provided for the use of the Judges.

(2) Omission to give such notice shall not diminish any powers of the Court but may in the discretion of the Court be a ground for post-ponement or adjournment of the appeal upon such terms as to costs or otherwise as may be just.

2/14 Notice of preliminary objection to be filed

14 (1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days no tice thereof before the hearing, setting out the grounds of objection, and shall file such notice [Civil form 10] together with six copies thereof with the Registrar within the same time.

(2) No objection shall be taken to the hearing of an appeal on the ground that the amounts fixed by the Registrar of the Supreme Court under Rule 7 (1) of this Order were incorrectly assessed.

(3) If the respondent fails to comply with paragraph (1) of this rule the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit.

2/15 Withdrawal of appeal

15 (1) An appellant may at any time before the appeal is called on for hearing serve on the parties to the appeal and file a notice [Civil form 11] with the Registrar to the effect that he does not intend further to prosecute the appeal.

(2) If all parties to the appeal consent [Civil form 12] to the withdrawal of the appeal without order of the Court the appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their legal representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeals by the Registrar. In such event any sum lodged in Court as se curity for the costs of the appeal shall be paid out to the appellant.

(3) The withdrawal of an appeal with the consent of the parties under paragraph (2) of this Rule shall be a bar to further proceedings on any application made by the respondent under Rule 13 of this Order.

(4) If all the parties do not consent to the withdrawal of the ap peal as aforesaid, the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining out standing between the parties, including any application made by the re spondent under Rule 13 of this Order, and for the making of an order as to the disposal of any sum lodged in Court as security for the costs of appeal.

(5) An appeal which has been withdrawn under this Rule, whether with or without an order of the Court, shall be deemed to have been dismissed.

2/16 Appeal by respondent where appeal withdrawn

16 Where an appeal is withdrawn under the preceding rule any re spondent who has not given a notice under Rule 13 of this Order may give notice of appeal and proceed therewith in the manner prescribed by the foregoing rules; and in such case the times limited for giving notice of appeal, for depositing the sum estimated to cover the costs of the record and for furnishing the security for costs may, on application to the Court, be extended so far as is reasonably necessary in all the circum stances of the case.

2/17 Non-compliance with conditions of appeal

17 (1) If the appellant has complied with none of the requirements of Rules 9 and 10 of this Order the Registrar of the Supreme Court shall certify such fact to a Judge who shall thereupon order that the appeal be dismissed either with or without costs, and shall cause the appellant and the respondent to be notified of the terms of his order.

(2) Where an appeal has been dismissed under paragraph (1) of this Rule, a respondent who has given notice under Rule 13 of this Order may [Civil form 13] give notice of appeal and the provisions of Rule 16 of this Order shall apply as if the appeal were brought under that Rule.

(3) If the respondent alleges that the appellant has failed to comply with a part of the requirements of Rules 2, 9 or 10, of this Order, a Judge, if satisfied that the appellant has so failed, may dismiss the ap peal for want of due prosecution or make such other order as the justice of the case may require.

(4) An appellant whose appeal has been dismissed under this rule may apply by notice of motion that his appeal be restored. Any such application may be made to the Court and the Court may in its discre tion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.

2/18 Exhibits

18 (1) Subject as hereinafter provided, each party shall, immedi ately after an appeal becomes pending before the Court, deliver to the Supreme Court all documents (being exhibits in the case or which were tendered as exhibits and rejected) which are in his custody or were pro duced or put in by him at the trial.

(2) Subject as hereinafter provided, each party to an appeal shall be prepared to produce at the hearing of the appeal all exhibits, other than documents, which are in his custody or were produced or
put in by him at the trial.

(3) In case any party finds it difficult to comply with the previ ous provisions of this rule owing to the nature of the documents or other exhibit or owing to its being in possession of a third party or for any other reason, he may apply to the Registrar of the Supreme Court for di rections.

(4) The Registrar of the Supreme Court may, either of his own motion or upon application, give any directions he sees fit, whether dis pensing with the provisions of this rule or modifying its application in any way or for securing compliance with it.

(5) All original documents delivered to the Supreme Court un der this rule shall remain in the custody of the Supreme Court until the record of appeal has been prepared, and shall then be forwarded with the record to the Registrar and shall remain in the custody of the Court until the determination of the appeal:

Provided that the Court or Registrar may allow the return of any document to any party pending the hearing of the appeal and subject to such conditions as it or he may impose.

2/19 Control of proceedings during pendency of appeal

19 After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole or the proceedings as between the parties thereto, and except as may be otherwise provided in this Order, every application therein shall be made to the Court and not to the Supreme Court.

2/20 Submission by party not appearing

20 At any time before the hearing of the appeal any party to the ap peal may file [Civil form 14] a declaration in writing that he does not wish to be present in person or by a legal representative on the hearing of the appeal, to gether with four copies of such arguments as he desires to submit to the Court and serve a copy of such declaration and arguments upon every other party who has filed an address for service and thereupon the ap peal shall be dealt with as if the party had appeared.

2/21 Non-appearance of appellant

21 (1) If the appellant fails to appear when his appeal is called on for hearing and has not taken action under Rule 20 of this Order, the appeal may be struck out or dismissed with or without costs.

(2) When an appeal has been struck out owing to the non-ap pearance of the appellant the Court may, if it thinks fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing,

2/22 Non-appearance of respondent

22 If the respondent fails to appear when the appeal is called on for hearing and has not taken action under Rule 20 of this Order, the Court may proceed to hear the appeal ex parte.

2/23 Application to set aside ex parte judgment

23 (1) Where an appeal has been heard ex parte under Rule 22 and any judgment has been given therein adverse to the respondent, he may apply to the Court to set aside such judgment and to re-hear the appeal.

(2) No application to set aside and re-hear under this Rule shall be made after the expiration of twenty-one days from the date of the judgment sought to be set aside:

Provided that a respondent who has failed within the period of twenty-one days to make application under this rule may nevertheless at any time within a further period of three months thereafter apply to the Court on notice to the appellant to set aside such judgment, and the Court if satisfied that good and sufficient cause has been shown for the application being out of time, may grant the application and make such order in relation thereto or as to costs as it may deem fit in the circumstances.

(3) Any such application shall be by motion accompanied by an affidavit setting forth the reasons and grounds for the application and the Court may thereupon in its discretion set aside the judgment and or der that the appeal be re-heard at such time and upon such conditions as to costs or otherwise as it may think fit.

2/24 Interlocutory judgment not to prejudice appeal

24 No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just.

2/25 Power of Court to give any judgment and make any order

25 The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appel lant may have asked that part only of a decision may be reversed or
varied, and may also be exercised in favour of all or any of the respon dents or parties, although such respondents or parties may not have ap pealed from or complained of the decision.

2/26 Judgment

26 (1) The judgment of the Court shall be pronounced in open Court, either on the hearing of the appeal or at any subsequent time of which notice shall be given by the Registrar to the parties to the appeal.

(2) A judgment of the Court may be read by any Judge whether or not he sat as a Judge of the Court at the hearing of the appeal.

(3) A certified copy of the judgment shall be sent by the Regis trar to the Supreme Court.

2/27 Order

27 (1) Every judgment of the Court shall be embodied in an order.

(2) A sealed or certified copy of the order shall be sent by the Registrar to the Supreme Court.

(3) Interlocutory orders shall be prepared in like manner.

2/28 Review of judgment

The Court shall not review any judgment once given and deliv ered by it save and except in accordance with the practice of the Court of Appeal in England.

2/29 Enforcement of judgments

29 Any judgment given by the Court may be enforced by the Court or by the Supreme Court or by any other Court which has been seized of the matter, as the Court may direct.

2/30 Execution of judgment by Supreme Court

30 When the Court directs any judgment to be enforced by another Court, a certificate [Civil form 15] under the seal of the Court and the hand of the pre siding Judge setting forth the judgment shall be transmitted by the Reg istrar to such other Court, and the latter shall enforce such judgment in terms of the certificate.

2/31 Costs

31 Where the costs of an appeal are allowed they may either be or dered to be taxed (in which event the provisions of Order 4 shall apply) or be fixed at the time when the judgment is given.

2/32 Fees

32 (1) Save as hereinafter provided, the fees prescribed in the Third Schedule shall be charged in respect of the matters to which they are respectively assigned, and shall be paid to the Registrar or to the Registrar of the Supreme Court as the case may be,

(2) No fee shall be payable in respect of any matter where such fee would be payable by the Crown or any Government Department:

Pro vided that when any person is ordered to pay the costs of the Crown or any Government Department in any case, all fees which would have been payable but for the provisions of this paragraph shall be taken as having been paid and shall be recoverable from such person.

(3) The Supreme Court or the Court may, on account of the poverty of any party or for other sufficient reason dispense, if it sees fit, with payment of any fees, if the circumstances of the case require:

Pro vided that if such party succeeds in any appeal which results in an order for payment to him of any costs the Court may order that such fees shall be a first charge on any moneys recovered or to be recovered under such order.

2/33 Proceedings by poor persons

33 (1) Any party may apply to the Court for leave to prosecute or defend an appeal as a poor person. Such application shall be by notice of motion, supported by affidavit, and shall be served on the other parties to the proceedings. No fee shall be payable on filing any such applica tion.

(2) No party shall be permitted to proceed as a poor person unless he satisfies the Court that he has a reasonable probability of suc cess.

(3) A person permitted to proceed as a poor person shall not be liable to pay any of the Court fees prescribed by these Rules nor shall he be required to make the deposit or to give the security prescribed by Rules 9 and 10 of this Order.

(4) The Court may for good cause shown review, rescind or vary an order permitting any person to proceed as a poor person.

(5) The Court may assign a barrister or attorney to represent a party prosecuting or defending an appeal as a poor person.

2/34 Costs in proceedings by poor persons

34 (1) Leave to proceed as a poor person shall not exempt such person from liability to an order for costs in favour of his opponent.

(2) If a poor person is not awarded costs in the proceedings, no fees shall be taken from him by a legal representative assigned to him.

(3) If a poor person is awarded costs against his opponent he shall be entitled to include and receive in such costs the fees of any legal representative assigned to him and all other fees and costs remitted by his admission to proceed as a poor person.

2/35 Matters not expressly provided for

35 Where no other provision is made by these Rules the procedure and practice for the time being in force in the Court of Appeal in England shall apply in so far as it is not inconsistent with these Rules, and the forms in use therein may be used with such adaptations as are neces sary.

2/36 Court to which applications should be made

36 Whenever an application may be made either to the Supreme Court or to the Court, it shall be made in the first instance to the Supreme Court but, if the Supreme Court refuses the application, the applicant shall be entitled to have the application determined by the Court.

2/37 Stay of execution

37 Upon the application of an intending appellant, the Court or a Judge may stay the execution of any judgment of the Supreme Court un til the determination or other disposal of the appeal:

Provided that no application under this Rule shall be entertained until it is shown to the satisfaction of the Court or a Judge that application for a stay of execu tion has been made to the Supreme Court and has been refused.

2/38 Interlocutory applications. Power of single Judge

38 (1) In any cause or matter pending before the Court, a single Judge may hear, determine and make orders on any interlocutory appli cation.

(2) Any order made by a single Judge in pursuance of this rule may be discharged or varied by the Court on the application of any per son aggrieved by such order.

ORDER 3

CRIMINAL APPEALS

Appeals from the Supreme Court in its Original jurisdiction or in its Ap pellate jurisdiction in Criminal Cases

3/1 Application

1 This order shall apply to appeals to the Court from the Supreme Court acting either in its original or in its appellate jurisdiction in crimi nal cases, and to matters related thereto.

3/2 Applications not specially provided for

2 Except where otherwise provided in these Rules any application to the Court may be made by the appellant or respondent or by a legal representative on his behalf orally or in writing, but in regard to such applications if the appellant is unrepresented and in custody and is not entitled or has not obtained leave to be present before the Court, he shall make any such application by forwarding the same in writing to the Registrar who shall take the appropriate steps to obtain the decision of the Court thereon.

3/3 Obligation on appellant to fill up forms of appeal notices and answer questions thereon

3 (1) A person desiring to appeal to the Court against any judg ment, sentence or order of the Supreme Court, whether in the exercise of its original or of its appellate jurisdiction, shall commence his appeal by filing in the Registry of the Supreme Court a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, in the form of such notices respectively set forth as Forms 1, 2, 3, 4, 5 or 7 in the Second Schedule.

(2) A person sending any notice or notices under this Rule shall answer the questions and comply with the requirements set forth thereon.

(3) Every notice of appeal or notice of application for leave to appeal from any judgment, sentence or order of the Supreme Court shall be filed in the Registry of the Supreme Court not later than twenty-one days after the date of such judgment, sentence or order.

3/4 Notices of Appeal

4 (1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given shall be signed by the appellant, except under the provision of paragraphs (4) and (5) of this Rule.

Any other notice required or authorized to be given shall be in writing and signed by the person giving the same or by his legal representative. All notices required or authorized to be given shall be addressed to the Registrar of the Supreme Court to be forwarded by him to the Registrar.

3/4 How notices, etc. may be given or sent

4 (2) Any notice or other document which is required or autho rized to be given or sent shall be deemed to be duly given or sent if for warded by registered post addressed to the person to whom such notice or other document is so required or authorized to be given or sent.

3/4 Where appellant unable to write

4 (3) Where an appellant or any other person authorized or re quired to give or send any notice of appeal or notice of any application is unable to write, he may affix his mark thereto in the presence of a wit ness who shall attest the same, and thereupon such notice shall be deemed to be duly signed by such appellant.

3/4 Where question of sanity involved

4 (4) Where, on the trial of a person entitled to appeal it has been contended that he was not responsible according to law for his actions on the ground that he was insane at the time the act was done or the omission made by him, or that at the time of the trial he was of unsound mind and consequently incapable of making his defence, any notice re quired to be given and signed by the appellant himself may be given and signed by his legal representative.

3/4 Notice, etc., on behalf of Corporations

4 (5) In the case of a body corporate where any notice or other document is required to be signed by the appellant himself it shall be sufficient compliance therewith if such notice or other document is signed by the secretary, clerk, manager or legal representative of such body corporate.

3/5 Application for extension of time

5 (1) An application to the Court for an extension of time within which notices may be given shall be in Form 7 in the Second Schedule. Every application for such extension of time shall be accompanied by a form duly filled up, of notice of appeal, or of notice of application for leave to appeal, appropriate to the ground or grounds upon which it is desired to question the conviction or sentence, as the case may be.

(2) Any intending appellant who is unrepresented and is in custody may, instead of filing a notice, or notices, under this Rule send such notice or notices to the Registry of the Supreme Court through the Commissioner of Prisons and any such notice or notices shall be deemed to have been filed in the Registry of the Supreme Court on the date of signing which shall be shown thereon and which shall be certified by a Prison Officer not below the rank of Principal Officer to be the actual date of signing.

3/6 Notice of application for leave to appeal

6 (1) Where the Court has on a notice of application for leave to appeal duly filed and in the form provided under these Rules given an appellant leave to appeal, or where the Supreme Court has certified that the case is one fit for appeal pursuant to section 17(1)(b) of the Act, it shall not be necessary for the appellant to give any notice of appeal and any notice of application for leave to appeal shall in such case be deemed to be a notice of appeal.

(2) Where an application has been made to the Supreme Court for a certificate that the case is fit for an appeal against conviction, the Registrar of the Supreme Court shall send to the Registrar of the Court notification of the result of the application in Form 6 in the Second Schedule together with the original of the application for the certificate and the case shall if the application for the certificate has been granted thereafter be dealt with as if leave to appeal had been granted by the Court.

3/7 Dealing with applications for leave to appeal and other preliminary applications

7 (1) Where a single Judge deals with any application under sec tion 19 of the Act, the Registrar shall inform the applicant of the result of his application. In the event of such Judge refusing the application, the Registrar, on notifying such refusal to the applicant, shall forward to him Form 8 in the Second Schedule, which Form the applicant is hereby re quired to fill up and forthwith return to the Registrar. If the applicant does not desire to have his said application determined by the Court or does not within thirty days of being notified of such refusal return Form 9 in the Second Schedule duly completed by him, the refusal of his ap-
plication shall be final.

(2) The answers to the questions on Forms 1, 2, 3 and 4 in the Second Schedule shall be deemed to be applications to the Court in such matters.

(3) For the purpose of constituting the Court the Judge who has refused any such application may sit as a member of the Court and take part in determining such application.

3/8 Forwarding of proceedings of Supreme Court to Registrar

8 (1) When—

(a) the Registrar of the Supreme Court has received a notice of appeal or a notice of application to the Court for leave to appeal or for extension of the time within which such notice shall be given; or

(b) the Supreme Court has granted a certificate that the case is a fit one for appeal against conviction,

the Regis trar of the Supreme Court shall prepare the record of appeal in the manner hereinafter prescribed and forward to the Registrar five copies thereof, He shall also forward the original exhibits in the case as far as practicable and any original depositions, information, inquisition, plea, or other documents usually kept by him, or forming part of the record of the Supreme Court, together with the originals of any recognizances entered into or any other documents filed in connection with the appeal or appli cation.

(2) On payment of the prescribed fees (subject nevertheless to the provisions of Rule 9 (3) of this Order), the Registrar of the Supreme Court shall forward to the appellant and to the Attorney-General a copy each of the record:

Provided that if the appellant is not in custody a copy of the record shall be supplied to him on his making application therefor to the Registrar of the Supreme Court, and paying the prescribed fees.

(3) The Court or Registrar may allow the return of any docu ment to any party pending the hearing of the appeal and subject to such conditions as it or he may impose.

3/9 Fees

9 (1) None of the fees specified in the Third Schedule shall be payable in respect of an appeal under this Order, except the fees speci fied in relation to the transcribing and preparation of the record of ap peal.

(2) The Court or the Supreme Court may waive in whole or in part the payment of any fees or the making of any deposit.

(3) This rule shall not apply to appeals in capital cases or where an appellant is granted legal aid pursuant to Section 26 (1) of the Act, and no fee shall be payable by the Attorney-General (a) on any ap peal by him under section 17 (2) of the Act, or (b) on any appeal in which the Crown is respondent.

3/10 Record in Criminal appeals from Supreme Court in its original juris diction

10 (1) The record of appeal in appeals or applications relating to appeals from the Supreme Court acting in its original jurisdiction in criminal cases shall contain legible typed copies of the following items ar ranged in this order—

(a) the index;

(b) the indictment;

(c) the Judge's notes of the evidence and minutes of the pro ceedings provided that if a shorthand note of the hearing has been taken, a copy of the transcript thereof may be included, either in addition to or substitution for the Judge's notes, as he may direct;

(d) the charge to the jury when a record thereof has been made; or if no such record has been made, a statement giving to the best of the Judge's recollection the sub stance of the direction or summing up;

(e) the judgment or any additional ground or explanation thereof;

(f) the proceedings on or after sentence in so far as not in cluded in the notes of the hearing or minutes of pro ceedings,

(g) all documentary exhibits put in at the trial including de positions read in consequence of the absence of a wit ness:

Provided that in the case of books of accounts or other documents of great length, extracts of the relevant portions thereof only shall be included,

(h) the notice of appeal or notice of application for leave to appeal, or notice of application for extension of time in which such notice shall be given.

(2) It shall not be necessary for the record of appeal to contain copies of any recognizances entered into or documents filed in connec tion with the appeal or applications other than those set out in para graph (1) of this rule unless the Court or a Judge of the Supreme Court shall otherwise direct.

3/11 Appeals in criminal matters from Supreme Court in its appellate ju risdiction

11 (1) The record of appeal in appeals or applications relating to appeals from the Supreme Court acting in its appellate jurisdiction in criminal matters shall contain legible typed copies of the following items arranged in this order—

(a) the index which shall include the particulars of the record of proceedings from the lower Court;

(b) the record of proceedings from the lower Court as sub mitted to the Supreme Court;

(c) the notice of appeal and all other relevant documents filed in connection with the appeal in the Supreme Court;

(d) the notes of the Judge or Judges on the hearing of the appeal and minutes of the proceedings;

(e) the judgment of the Supreme Court;

(f) the notice of appeal to the Court or notice of application for leave to appeal to the Court, or notice of application to the Court for extension of time within which such no tice shall be given;

(g) where the Supreme Court has certified that the case is a fit one for appeal against conviction, a copy of the certifi cate.

(2) It shall not be necessary for the record of appeal to contain copies of any recognizances entered into for the purposes of the appeal to the Supreme Court or of the appeal or application to the Court, unless the Court or a Judge of the Supreme Court shall otherwise direct.

(3) In this rule "lower court" means the court of trial.

3/12 Records of summing up

12 (1)