Civil Practice and Procedure in the Court of Appeal

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1 Civil Practice and Procedure in the Court of Appeal Bar of Ireland, CPD Seminar Andrew Fitzpatrick SC 13 th February, 2017

2 Practice Direction on Submissions, Books of Appeal and Authorities. Maximum word count: Ordinary appeals: 10,000 words. Expedited appeals: 5,000 words. Format: i. Introduction (2 pages); ii. High Court judgment; iii. Issues to be decided; iv. Submissions relevant to each issue; v. Conclusion; and vi. Chronology in Appendix (not part of word count).

3 Practice Direction also requires that where appeal concerns High Court findings of fact, submissions should address principles in Hay v O Grady. Authorities: Parties must agree contents of book of authorities; 8 weeks prior to hearing date: appellant to deliver proposed index. 4 weeks prior to hearing date: respondent to deliver list of any additional authorities. Not necessary to include all cases which are referred to in the written submissions.

4 Word limit is a limit, not a target. Court of Appeal of England and Wales imposes severe costs penalties if Practice Direction on Submissions is breached. Observations on consequences of excessively long written submissions: Skeleton arguments are aids to oral advocacy... An unintended and unfortunate side effect of the growth in written advocacy... has been that too many practitioners, at increased costs to their clients and diminishing assistance to the court, burden their opponents and the court with written briefs. They are anything but brief. Mummery L.J. in Raja v Van Hoogstraten [2008] EWCA Civ

5 This case is a grotesque example of a tendency to burden the court with documents of grossly disproportionate quantity and length. It is a practice which must stop. Far from assisting the court, it makes the work of the court infintiely harder. Toulson L.J. in Midgulf International v Groupe Chimique Tunisien [2010] EWCA Civ. 66. If practitioners want to kill oral advocacy, the preparation and presentation to the court of excessively long written submissions (under the guise of skeleton arguments) is the way to go about it. Sir Anthony May in Khader v Aziz [2010] EWCA Civ 716. Eliminate extensive restatement of well known principles and reduce number of quotations in submissions.

6 Appeals against findings of fact Hay v O Grady [1992] 1 I.R (McCarthy J.) 1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial. 1. If findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact.

7 Appeals against orders for discovery More common now for an appeal to be lodged against High Court order for discovery than was the case when appeals were made to the Supreme Court. Lawless v Aer Lingus Group plc [2016] IECA 235 (Irvine J). In order for this Court to displace the order of the High Court in a discovery matter the appellant should be in a position to establish that a real injustice will be done unless the High Court order is set aside. It should not be sufficient for an appellant simply to establish that there was a better or more suitable order that might have been made by the trial judge in the exercise of their discretion. Canadian Imperial Bank of Commerce v Beck [2009] EWCA Civ exceed the generous ambit within which reasonable disagreement is possible and was plainly wrong.