The settlement is a short administrative hearing before the Registrar, and it decides the shape of the appeal. A party who treats it as a formality gives up the chance to influence what the Court will read.
Order 7 Rule 42
At the appointment to settle the appeal book, the Registrar shall —
(a) determine what documents and matters shall be included in the appeal book and the order of inclusion, and such other matters as he thinks fit concerning the preparation of copies of the appeal papers;
(b) settle the index in accordance with Rule 43(13);
(c) determine the number of copies of the appeal book required;
(d) may, if he thinks necessary, obtain the direction of the primary Judge.
Come equipped
The draft index, filed under Rule 40 and served under Rule 41.
The reasons for judgment and, under Rule 36(b), the certified notes of evidence — or the corrected transcript where one exists.
The certified exhibit list made out by the associate under Rule 31.
The notice of appeal, and any supplementary notice filed under Rule 25.
A note of the transcript corrections submitted to the respondent under Rule 38, and whether they are agreed.
An estimate of the number of copies required, so paragraph (c) can be dealt with sensibly.
Rule 43(12) limits the book to documents that are relevant or necessary, and Rule 46 disallows the costs of unnecessary documents or documents copied at unnecessary length. A short explanation of why each disputed document is needed — by reference to a ground of appeal — is what carries the point.
What is usually argued
| Dispute | How it is resolved |
|---|---|
| Whether a document was in evidence below | The associate’s certified exhibit list; if unclear, r 42(d) — the primary Judge |
| Whether a document is relevant to any ground | The Registrar under r 42(a), reading the notice of appeal |
| Whether the whole of a long exhibit is needed | r 43(12) and r 46 — extract the relevant part |
| Whether material going only to a contention or cross-appeal goes in | r 29(c) — the respondent’s request to the Registrar |
| Whether the transcript is accurate | r 39 — the Registrar or the primary Judge |
| Whether affidavits not read below should be included | Generally not: they were not evidence. r 43(7) on affidavits of documents |
If the Registrar’s decision does not resolve it
Any issue arising in respect of the book not determined to the satisfaction of the parties by the Registrar shall be referred to the Duty Judge.
The word is shall. A party genuinely prejudiced by an inclusion or exclusion has a route, and should take it at the time rather than raising it at the hearing.
Order 13 Rule 8(d) also lists, among matters for directions at a Directions Hearing, the filing of the Index to the Book and its certification and any other issues in relation to the contents of the Book.
What follows
1. Prepare the book to the Rule 43 requirements — A4, bound volumes or a suitable binder, every tenth line numbered, no volume thicker than 38 mm, title page, settled index, pagination.
2. Examine it. Rule 43(9): a copy of the appeal book shall be examined with the original documents, and all copies shall be corrected.
3. Certify it. Rule 43(10): the examined copy shall be filed in the registry with a certificate by the parties or their lawyers that it has been examined and is correct.
4. Lodge and serve. Rule 44: unless the court or a Judge otherwise orders, the appellant shall lodge with the Registrar and serve on each of the respondents separately represented copies of the appeal book as determined under Rule 42(c).
Then, under Order 13 Rule 7(6), the matter is added to the Callover List when the Book is filed.
One point on the certificate
Rule 43(10) contemplates a certificate by the parties or their lawyers — not by the appellant alone. In practice the respondent’s lawyer is asked to join in certifying that the book has been examined and is correct.
A respondent should not sign without checking, and should not refuse without a reason. Where a genuine dispute about accuracy remains, that is a Rule 39 or Order 13 Rule 7(5) question, not a reason to leave the appeal unable to be listed.
When the settlement cannot proceed
The transcript has not arrived. Rule 37 is conditional — if a copy of the transcript of proceedings is available. Where it is not, Rule 36(b) contemplates proceeding on a copy of the notes of evidence taken by the primary Judge certified by his Associate. Bring the certified notes and settle on them.
An exhibit cannot be located. Rule 32 is the answer: the Associate states the circumstances in the certificate and gives such information as will enable the Registrar to cause the exhibit to be available at the court. The index records it as not copied.
The draft index was not served in time. Rule 41 requires service no later than two clear days before settlement. A respondent who has not had it is entitled to say the appointment cannot usefully proceed — and the appellant has failed to do an act required by the Rules, which is the language of Rule 48.
A settlement that collapses wastes the Registrar’s time and the respondent’s, and it goes into the chronology on any later application under Rule 48. Where the material will not be ready, tell the registry and the other side in advance and ask for a new appointment.
Where the obstacle is structural rather than temporary, Order 7 Rule 47 allows the Court or a Judge at any time to make such orders as appear just for the expediting of the appeal, and Order 13 Rule 8(d) lists transcript availability and the filing and certification of the index among the matters for directions.
Sources
- Supreme Court Rules 2012 — O 7 rr 25, 29, 31, 36–46; O 13 rr 7, 8
- Supreme Court Act (Chapter 37) — ss 6, 29
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.