1. This Order applies, subject to the provisions of these Rules with respect to particular appeals, to every appeal to the Court of Appear (including, so far as it is applicable thereto, any appeal to that Court from a master or from any tribunal from which an appeal lies to that Court) not being an appeal for which other provision is made by these Rules or by any other statutory provision.
[E.r. 1]
2. This Order (except so much of rule 3(1) as provides that an appeal shall be by way of rehearing and except rule 11(1)) applies to an application to the Court of Appeal for a new trial or to set aside a verdict, finding or judgment after trial with or without a jury, as it applies to an appeal to that Court, and references in this Order to an appeal and to an appellant shall be construed accordingly.
[E.r. 2]
3.—(1) An appeal to the Court of Appeal shall be by way of rehearing and must be brought by motion, and the notice of the motion is referred to in this Order as “notice of appeal”.
(2) Notice of appeal may be given either in respect of the whole or in respect of any specified part of the judgment or order of the court below; and every such notice must specify the grounds of the appeal and the precise form of the order which the appellant proposes to ask the, Court of Appeal to make.
(3) Except with the leave of the Court of Appeal, the appellant shall not be entitled on the hearing of an appeal to rely on any grounds of appeal, or to apply for any relief, not specified in the notice of appeal.
(4) A notice of appeal must be served on all parties to the proceedings in the court below who are directly affected by the appeal; and, subject to rule 8, it shall not be necessary to serve the notice on parties not so affected.
(5) No notice of appeal shall be given by a respondent in a case to which rule 6(1) relates.
[E.r. 3]
4.—(1) Subject to the provisions of this rule, every notice of appeal must be served under rule 3(4) within the following period (calculated from the date on which the judgment or order of the court below was filed), that is to say:—
(a)in the case of an appeal from an interlocutory order or from a judgment or order given or made under Order 14 or Order 86, 21 days;
(b)in the case of an appeal from an order or decision made or given in the matter of the winding up of a company, or in the matter of any proceedings under the Bankruptcy Acts (Northern Ireland) 1857 to 1980, 21 days;
(c)in any other case, 6 weeks.
(2) Where a summons to vary or discharge a certificate and the further consideration of an action are heard together, and an order is made on both, notice of appeal in respect of the order made on the summons may be served at any time before the expiration of the period within which notice of appeal could be served in respect of the order made on further consideration.
(3) In the case of an appeal from a decision in respect of which a certificate bas been granted under section 12 of the Administration of Justice Act 1969(1) the period referred to in paragraph (1) shall be calculated from the end of the time during which, in accordance with section 13(5) of that Act, no appeal lies to the Court of Appeal.
[E.r. 4]
5.—(1) The appellant must, within 7 days after service of the notice of appeal, or within such further time as the Master (Queen's Bench and Appeals) may allow, enter the appeal for hearing by lodging in the Central Office
(a)2 copies of the notice of appeal, of which one copy must be duly stamped and endorsed with particulars of service;
(b)a copy of the judgment or order of the court below.
(2) Upon the appeal being entered it shall be listed for hearing not earlier than the date named in the notice or appeal, unless an earlier date is fixed at the request and with the written consent of both the appellant and the respondent.
6.—(1) A respondent who, having been served with a notice of appeal, desires—
(a)to contend on the appeal that the decision of the court below should be varied, either in any event or in the event of the appeal being allowed in whole or in part, or
(b)to contend that the decision of the court below should be affirmed on grounds other than those relied upon by that court, or
(c)to contend by way of cross-appeal that the decision of the court below was wrong in whole or in part,
must give notice to that effect, specifying the grounds of his contention and, in a case to which paragraph (a) or (c) relates, the precise form of the order which he proposes to ask the Court to make.
(2) Except with the leave of the Court of Appeal, a respondent shall not be entitled on the hearing of the appeal to apply for any relief not specified in a notice under paragraph (1) or to rely, in support of any contention, upon any ground which has not been specified in such a notice or relief upon by the court below.
(3) Any notice given by a respondent under this rule (in this Order referred to as a "respondent's notice") must be served on the appellant, and on all parties to the proceedings in the court below who are directly affected by the contentions of the respondent, and must be served—
(a)where the notice of appeal related to an interlocutory order, within 7 days, and
(b)in any other case, within 21 days,
after the service of the notice of appeal on the respondent.
(4) A party by whom a respondent's notice is given must, within 2 days after service of the notice, furnish two copies of the notice to the proper officer in the Central Office;
[E.r. 6]
7. A notice of appeal or respondent's notice may be amended by or with the leave of the Court of Appeal, at any time.
[E.r. 7]
8.—(1) The Court of Appeal may in any case direct that a notice of appeal or respondent's notice be served on any party to the proceedings in the court below on whom it has not been served, or on any person not party to those proceedings.
(2) The Court of Appeal may in any case where it gives a direction under this rule—
(a)postpone or adjourn the hearing of the appeal for such period and on such terms as may be just, and
(b)give such judgment and make such order on the appeal as might have been given or made if the persons served in pursuance of the direction had originally been parties.
[E.r. 8]
9.—(1) Not less than 7 days before the appeal is likely to be listed for hearing the appellant must cause to be lodged in the Central Office the number of copies for which paragraph (2) provides of each of the following documents, namely—
(a)the notice of appeal;
(b)the respondent's notice;
(c)the judgment or order of the court below;
(d)the pleadings (including particulars), if any, and, in the case of an appeal in an Admiralty cause or matter, the preliminary acts, if any;
(e)the transcript of the official shorthand note, if any, of the judgment or order of the court below or, in the absence of such a note, the judge's note of his reasons for giving the judgment or making the order;
(f)such parts of the transcript of the official shorthand note, if any, of the evidence given in the court below as are relevant to any question at issue on the appeal or, in the absence of such a note, such parts of the judge's note of the evidence as are relevant to any such question;
(g)any list of exhibits made under Order 35, rule 8, or the schedule of evidence, as the case may be;
(h)such affidavits, exhibits, or parts of exhibits, as were in evidence in the court below and as are relevant to any question at issue on the appeal.
(2) The number of copies to be lodged in accordance with paragraph (1) is three unless the Master directs a different number.
[E.r. 9]
10.—(1) In relation to an appeal the Court of Appeal shall have all the powers and duties as to amendment and otherwise of the High Court including, without prejudice to the generality of the foregoing words, the powers of the Court under order 36 to refer any question or issue of fact for trial before, or inquiry and report by, a master or referee.
(2) The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken in accordance with Order 39 but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.
(3) The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require.
(4) The powers of the Court of Appeal under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or respondent's notice has been given in respect of any particular part of the decision of the court below or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court of Appeal may make any order, on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties.
(5) The Court of Appeal may, in special circumstances,, order that such security shall be given for the costs of an appeal as may be just.
(6) The powers of the Court of Appeal in respect of an appeal shall not be restricted by reason of any interlocutory order from which there has been no appeal.
(7) Documents impounded by order of the Court of Appeal shall not be delivered out of the custody of that Court except in compliance with an order of that Court :
Provided that where the Attorney General or the Director of Public Prosecutions, makes a written request in that behalf, documents so impounded shall be delivered into his custody.
(8) Documents impounded by order of the Court of Appeal, while in the custody of that Court, shall not be inspected except by a person authorised to do so by an order of that Court.
[E.r. 10]
11.—(1) On the hearing of any appeal the Court of Appeal may, if it thinks fit, make any such order as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the court below.
(2) The Court of Appeal shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion, of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court of Appeal that any such wrong or miscarriage as is mentioned in paragraph (2) affects part only of the matter in controversy, or one or some only of the parties, the Court may order a new trial as to that part only, or as to that party or those parties only, and give final judgment as to the remainder.
(4) In any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate, the Court may, in lieu of ordering a new trial—
(a)with the consent of all parties concerned, substitute for the sum awarded by the jury such sum as appears to the Court to be proper;
(b)with the consent of the party entitled to receive or liable to pay the damages, as the case may be, reduce or increase the sum awarded by the jury by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included in or excluded from the sum so awarded;
but except as aforesaid the Court of Appeal shall not have power to reduce or increase the damages awarded by a jury.
(5) A new trial shall not be ordered by reason of the ruling of any judge that a document is sufficiently stamped or does not require to be stamped.
[E.r. 11]
12. Where any question of fact is involved in an appeal, the evidence taken in the court below bearing on the question shall, subject to any direction of the Court of Appeal, be brought before that Court as follows :—
(a)in the case of evidence taken by affidavit, by the production of printed copies of such of the affidavits as have been printed, and office copies of such of them as have not been printed;
(b)in the case of evidence given orally, by a copy of so much of the transcript of the official shorthand note as is relevant or by a copy of the judge's note, where he has intimated that in the event of an appeal his note will be sufficient, or by such other means as the Court of Appeal may direct.
[E.r. 12]
13.—(1) Except so far as the court below or the Court of Appeal may otherwise direct—
(a)an appeal shall not operate as a stay of enforcement or of proceedings under the decision of the court below;
(b)no intermediate act or proceeding shall be invalidated by an appeal.
(2) On an appeal from the High Court, interest for such time as enforcement has been delayed by the appeal shall be allowed unless the Court otherwise orders.
[E.r. 13]
14.—(1) Every application to the Court of Appeal shall be by motion, and the provisions of Order 8 shall apply thereto.
(2) Any application to the Court of Appeal for leave to appeal (other than an application made after the expiration of the time for appealing) must be made ex parte in the first instance; but unless the application is then dismissed or it appears to that Court that undue hardship would be caused by an adjournment, the Court shall adjourn the application and give directions for the service of notice thereof on the party or parties affected.
(3) Where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal.
(4) Wherever under these Rules an application may be made either to the court below or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticable to apply to the court below.
[E.r. 14]
15. Without prejudice to the power of the Court of Appeal under Order 3, rule 5, to extend the time prescribed by any provision of this Order, the period for serving notice of appeal under rule 4 or for making application ex parte under rule 14(3) may be extended by the court below on application made before the expiration of that period.
[E.r. 15]
16. Every appeal under section 35(5) of the Act shall be brought by giving notice of appeal in accordance with rule 3 and every such appeal shall be deemed to be an appeal from a judgment in an action and the rules of this Order shall apply accordingly.
17.—(1) The following provisions of this rule shall apply to any appeal to the Court of Appeal from an order for the revocation of a patent.
(2) The notice of appeal must be served on the Comptroller-General of Patents, Designs and Trade Marks (in this rule referred to as “the Comptroller”) as well as on the party or parties required to be served under rule 3.
(3) If, at any time before the appeal comes on for hearing, the respondent decides not to appear on the appeal or not to oppose it, he must forthwith serve notice of his decision on the Comptroller and the appellant, and any such notice served on the Comptroller must be accompanied by a copy of the petition or of the pleadings in the action and the affidavits filed therein.
(4) The Comptroller must, within 14 days after receiving notice of the respondent's decision, serve on the appellant a notice stating whether or not he intends to appear on the appeal.
(5) The Comptroller may appear and be heard in opposition to the appeal
(a)in any case where he has given notice under paragraph (4) of his intention to appeal, and
(b)in any other case (including, in particular, a case where the respondent withdraws his opposition to the appeal during the hearing) if the Court of Appeal so directs or allows.
(6) The Court of Appeal may make such orders for the postponement or adjournment of the hearing of the appeal as may appear to the Court necessary for the purpose of giving effect to the foregoing provisions of this rule.
18. In the case of an appeal to the Court of Appeal under section 44 of the Act, the notice of appeal must be served on the proper officer of the court from whose order or decision the appeal is brought, as well as on the party or parties required to be served under rule 3.