Responsibility for the appeal book is not shared. It falls on the party who brought the appeal, and it does not shift because the other side has the documents or because the transcript is slow.
Every rule says so
| Rule | Obligation |
|---|---|
| O 7 r 33 | The appellant shall on filing the notice of appeal get an appointment to settle |
| O 7 r 34 | The appellant shall serve notice of the appointment on each person served with the appeal |
| O 7 r 36 | The appellant shall obtain and produce to the Registrar the reasons and the certified notes of evidence |
| O 7 r 38 | The appellant shall correct the transcript, submit a list of corrections, and afford the respondent an opportunity to examine it |
| O 7 r 41 | The appellant shall serve the draft index no later than two clear days before settlement |
| O 7 r 44 | The appellant shall lodge with the Registrar and serve on each separately represented respondent |
Rule 40 says a draft index shall be prepared and filed in the registry before the date appointed for settlement — without naming who. Rule 41 supplies the answer by requiring the appellant to serve it, and Rule 29 refers to the appellant’s draft index to be prepared in accordance with Rule 40.
What the Registrar does
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;
(b) settle the index in accordance with Rule 43(13);
(c) determine the number of copies required;
(d) may, if he thinks necessary, obtain the direction of the primary Judge.
The Registrar decides what goes in and in what order. He does not photocopy, index, paginate or bind. Rule 43(11) requires the book to be prepared and produced in a manner satisfactory to the Registrar — the standard is his; the work is the appellant’s.
Rule 32 does give the Registrar custody of the record: he shall retain the documents obtained under Rules 30 and 31 until the disposal of the appeal, and, subject to any direction, return them to the persons from whom they were obtained.
What a respondent should do
Examine the transcript. Rule 38 requires the appellant to submit a list of corrections to the respondent and afford the respondent a reasonable opportunity of examining the transcript and corrections. Rule 39: if the parties disagree on accuracy or cannot agree a correction, the question shall be submitted to the Registrar or primary Judge for direction.
Consider the draft index. It must be served no later than two clear days before settlement. Two days is short; read it the day it arrives.
Attend the settlement. The Registrar determines contents and order at the appointment. A respondent who does not attend has agreed by absence.
Ask for your material. Rule 29 gives a respondent relying on a contention the mechanism — notify the appellant of the relevant record for the draft index, and request the Registrar to include it in the appeal book. A cross-appellant should do the same.
And the primary Judge’s associate
Upon the filing of a notice of appeal, the Associate to the primary Judge shall make out and certify a list of exhibits, and the exhibits, the list and any other documents before the primary Judge shall be delivered to the registry.
That obligation is triggered by service of the notice on the associate under Rule 13. An appellant who has not served the associate has not started the process that produces the exhibits.
Rule 32: where an exhibit cannot be so delivered, the Associate shall state the circumstances in the certificate and give such information as will enable the Registrar to have the exhibit available at the Court.
Doing the work
Most firms have the copying and binding done commercially. That is unobjectionable — but Rule 43(9) requires a copy of the appeal book to be examined with the original documents and all copies corrected, and Rule 43(10) requires the examined copy to be filed with a certificate by the parties or their lawyers that it has been examined and is correct.
Somebody has to read the book against the originals, and sign for it. That is the lawyer, not the copy shop.
The obligations are the same. Order 11 Rule 10 offers some relief: where compliance with the provisions relating to the preparation of documents or appeal books may cause unnecessary hardship, expense or delay, the Registrar may, after consultation with the Chief Justice, or if unavailable the next most senior Judge in Chambers, waive compliance to such extent as in his opinion is reasonable.
An unrepresented appellant who cannot meet the physical requirements should raise it with the registry rather than lodging something non-compliant. See appearing in person.
Where there is a cross-appeal
The Rules do not contemplate a second appeal book for a cross-appeal. There is one record, and Rule 44 puts its preparation on the appellant.
A cross-appellant who needs material that the appeal does not require must therefore ask for it, following the route Rule 29 lays down for a respondent relying on a contention: notify the appellant for inclusion in the draft index, and request the Registrar to include the material in the appeal book.
Do it before the draft index is filed under Rule 40, and attend the settlement. A cross-appellant who leaves the book to the appellant and arrives at the hearing without the evidence for the cross-appeal has no answer. See filing a cross-appeal.
Sources
- Supreme Court Rules 2012 — O 7 rr 13, 29–44; O 11 r 10; O 13 r 7
- 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.