This is one of the few areas where the Rules give an appellant a genuine margin. It is narrower than it looks.
Order 7 Rule 11 again
Upon filing the notice of appeal, the appellant for the purposes of ss 17 and 29 of the Act shall be deemed to have given notice of appeal in the prescribed manner.
Sections 17 and 29 of the Supreme Court Act require notice of appeal to be given within 40 days. Rule 11 tells you what “given” means: filed.
So an appellant who files on day 40 and serves on day 55 has met the statutory deadline. An objection to competency founded solely on late service should fail.
Rule 13 says a copy shall be served without delay. The consequences of ignoring that are real; they are simply not the loss of the appeal for want of a valid notice.
What late service actually costs
| Consequence | Source |
|---|---|
| The associate does not certify the exhibit list, so the record is delayed | O 7 r 31 |
| Exhibits may already have been returned under the 40-day retention rule | O 7 rr 30, 32 |
| The appointment to settle the appeal book cannot proceed effectively | O 7 rr 33–44 |
| The respondent’s 14 days to object to competency has not started | O 7 r 15 |
| The appeal becomes vulnerable to dismissal for want of prosecution | O 7 r 48 |
| Costs may be ordered against the appellant even on a successful appeal | O 12 |
The real risk
Where an appellant has not done any act required to be done by or under these rules, or otherwise has not prosecuted his appeal with due diligence, the Court may —
(a) order that the appeal be dismissed for want of prosecution;
(b) fix a time peremptorily for the doing of the act and at the same time order that upon non-compliance the appeal shall stand dismissed for want of prosecution, or subsequently, and in the event of non-compliance, order that it be so dismissed; or
(c) make such other order as may seem just.
Rule 13 requires service without delay. An appellant who has not served four months on is squarely within Rule 48(a), and the appeal can be dismissed without any argument about the merits.
A respondent alert to the delay does not have to wait. See dismissal for want of prosecution.
What to do if you are late
1. Serve immediately. Every day of further delay strengthens a Rule 48 application. Do not wait to prepare an explanation first.
2. Serve the associate. If the retention period has run, ask the registry what has become of the exhibits so the position can be recorded.
3. Prepare an affidavit explaining the delay. File it if a Rule 48 application is made, or on any directions hearing. The explanation carries far more weight given in advance than offered under attack.
4. Take the next steps promptly. The best answer to want of prosecution is a fully prosecuted appeal — appointment kept, appeal book indexed, index served.
Order 7 Rule 14
The Court or a Judge may —
(a) direct that the notice of appeal be served on any party to the proceedings below on whom it has not been served, or on any other person;
(b) dispense with service on any party either altogether or on such terms as it or he thinks fit;
(c) direct that service be effected in a particular manner.
Where a party cannot be found, has been wound up, or has no interest in the outcome, paragraph (b) is the answer. Where personal service has failed, paragraph (c) allows substituted service.
The dispensing power in the Rules — the Court or a Judge may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance occurs, unless it is a requirement of the Organic Law — appears in Order 5, which governs reviews of the National Court.
In an appeal the routes are specific: Order 7 Rule 14 for service, Order 11 Rule 9 for directions where a procedure is not prescribed, and Order 11 Rule 10 for the Registrar's waiver as to appeal books.
Late service is not late filing
Late filing is fatal unless an extension was obtained within the 40 days. Section 17 allows the Court or a Judge to allow a further period within that period of 40 days, and no longer.
Late service is a procedural default, curable by prompt action and, if necessary, a direction under Order 7 Rule 14.
The whole point of Rule 11 is to keep these two things apart. See the 40-day limit and extensions of time.
If you were served late
The 14 days for an objection to competency under Rule 15 runs from service, not from filing. Late service therefore extends, not shortens, the respondent’s time.
If the delay has caused real prejudice — a lost witness, a document destroyed, security dissipated — that is the material for a Rule 48 application, supported by affidavit.
A different regime in custody cases
Section 29 of the Supreme Court Act governs notice in criminal appeals, and Order 7 Rule 11 deems filing to be the giving of notice for that section as it does for section 17.
Section 32 requires the officer in charge of the corrective institution or lock-up to cause any such notice given by a detainee in his custody to be forwarded on behalf of the detainee to the Registrar — so once the notice is handed over, the appellant has no control over what happens next. That is a strong reason for the Court to look at when the appellant did what was in their power, rather than at the date the document reached the registry.
See criminal appeals.
Sources
- Supreme Court Rules 2012 — O 7 rr 11–15, 30–33, 48; O 11 rr 9, 10; O 12
- Supreme Court Act (Chapter 37) — ss 17, 29, 32
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.