FORMER PART 44Appeals
FORMER PART 44 — Appeals
These rules will apply to judgments and orders issued before 25 May 2017.
Scope of this part and interpretation
The Rules in this Part apply to appeals to:
(1) the Court of Appeal; and
(2) the Court of First Instance.
In this Part:
(1) ‘appeal Court’ means the CourtG to which an appeal is made;
(2) ‘lower Court’ means the CourtG , tribunalG or other person or body from whose decision an appeal is brought;
(3) ‘appellant’ means a person who brings or seeks to bring an appeal;
(4) ‘respondent’ means:
(a) a person other than the appellantG who was a party to the proceedings in the lower CourtG and who is affected by the appeal; and
(b) a person who is permitted by the appeal CourtG to be a party to the appeal; and
(5) ‘appeal notice’ means an appellant’sG or respondent’sG notice.
This Part is subject to any Rule, enactment or Practice Direction which sets out special provisions with regard to any particular category of appeal.
Unless the appeal CourtG or the lower CourtG orders otherwise, an appeal shall not operate as a stayG of any order or decision of the lower CourtG .
An appellantG or respondentG requires permission to appeal:
(1) where the appeal is to the Court of Appeal, except where the appeal is against a committal order;
(2) where the appeal is to the Court of First Instance, except where the appeal is against:
(a) a refusal by the Registrar of Companies to grant authorisation to transfer incorporation under Article 122(1) of the Companies Law (Amended and Restated), DIFC Law 3 of 2006; or
(b) a refusal by the Registrar of Companies to grant authorisation to transfer a Limited Partnership under Article 63(1) of the Limited Partnership Law, DIFC Law 4 of 2006.
An application for permission to appeal may be made:
(1) to the lower CourtG at the hearing at which the decision to be appealed was made; or
(2) to the appeal CourtG in an appeal noticeG .
An application to the appeal Court for permission to appeal under RDC 44.71(2) may not be heard by the judge against whose decision permission to appeal is sought.
Permission to appeal may be given only where:
(1) the CourtG considers that the appeal would have a real prospect of success; or
(2) there is some other compelling reason why the appeal should be heard.
Where a party applies for permission to appeal against a decision at the hearing at which the decision was made, the JudgeG making the decision shall state:
(1) whether or not the judgmentG or order is final;
(2) whether an appeal lies from the judgmentG or order; and
(3) whether the CourtG gives permission to appeal; and
(4) if not, the appropriate appeal CourtG to which any further application for permission may be made.
Where no application for permission to appeal has been made in accordance with Rule 44.6(1) but a party requests further time to make such an application, the CourtG may adjourn the hearing to give that party the opportunity to do so.
Where the lower CourtG refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal CourtG .
Consideration of permission without a hearing
Applications for permission to appeal may be considered by the appeal CourtG without a hearing.
If permission is refused without a hearing the parties will be notified of that decision with the reasons for it.
Where the appeal CourtG , without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing. This may be before the same JudgeG .
Where the appeal CourtG refuses permission to appeal without a hearing, it may, if it considers that the application is totally without merit, make an order that the person seeking permission may not request the decision to be reconsidered at a hearing.
A request for the decision to be reconsidered at an oral hearing must be filed at the appeal CourtG within 7 days after serviceG of the notice that permission has been refused. A copy of the request must be served by the appellantG on the respondentG at the same time.
The appellant’sG legal representativeG must, at least 4 days before the hearing, in a brief written statement:
(1) inform the CourtG and the respondentG of the points which he proposes to raise at the hearing; and
(2) set out his reasons why permission should be granted notwithstanding the reasons given for the refusal of permission.
Notice of a permission hearing will be given to the respondentG but he is not required to attend unless the CourtG requests him to do so.
If the CourtG requests the respondent’sG attendance at the permission hearing, the appellantG must supply the respondentG with a copy of the appeal bundle within 7 days of being notified of the request, or such other period as the CourtG may direct. The costs of providing that bundle shall be borne by the appellantG initially, but will form part of the costs of the permission application.
An order giving permission may:
(1) limit the issues to be heard; and
(2) be made subject to conditions.
Where a CourtG under Rule 44.22 gives permission to appeal on some issues only, it will:
(1) refuse permission on any remaining issues; or
(2) reserve the question of permission to appeal on any remaining issues to the CourtG hearing the appeal.
If the CourtG reserves the question of permission under Rule 44.23(2), the appellantG must, within 14 days after serviceG of the Court’sG order, inform the appeal CourtG and the respondentG in writing whether he intends to pursue the reserved issues. If the appellantG does intend to pursue the reserved issues, the parties must include in any time estimate for the appeal hearing, their time estimate for the reserved issues.
If the appeal CourtG refuses permission to appeal on the remaining issues without a hearing and the applicant wishes to have that decision reconsidered at an oral hearing, the time limit in Rule 44.17 shall apply. Any application for an extension of this time limit should be made promptly. The CourtG hearing the appeal on the issues for which permission has been granted will not normally grant, at the appeal hearing, an application to extend the time limit in Rule 44.17 for the remaining issues.
If the appeal CourtG refuses permission to appeal on remaining issues at or after an oral hearing, the application for permission to appeal on those issues cannot be renewed at the appeal hearing.
Respondents’ costs of permission applications
In most cases, applications for permission to appeal will be determined without the CourtG requesting:
(1) submissions from; or
(2) if there is an oral hearing, attendance by;
the respondentG .
Where the CourtG does not request submissions from or attendance by the respondentG , costs will not normally be allowed to a respondentG who volunteers submissions or attendance.
Where the CourtG does request:
(1) submissions from; or
(2) attendance by the respondentG ;
the CourtG will normally allow the respondentG his costs if permission is refused.
Appeals from case management decisions
Case management decisions include decisions made under Rule 4.2 and decisions about:
(2) filingG of witness statements or experts reports;
(3) directions about the timetable of the claim;
(4) adding a party to a claim; and
(5) security for costs.
Where the application is for permission to appeal from a case management decision, the CourtG dealing with the application may take into account whether:
(1) the issue is of sufficient significance to justify the costs of an appeal;
(2) the procedural consequences of an appeal (e.g. loss of trial date) outweigh the significance of the case management decision; and
(3) it would be more convenient to determine the issue at or after trial.
An appellant’sG notice must be filed and served in all cases.
Where the appellantG seeks permission from the appeal CourtG it must be requested in the appellant’sG notice.
The appellant’sG notice must set out the grounds of appeal relied on.
The grounds of appeal must:
(1) set out clearly the reasons why it is said the decision of the lower CourtG was:
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower CourtG ; and
(2) specify, in respect of each ground, whether the ground raises an appeal on a point of law or is an appeal against a finding of fact.
Filing and service of appellant’s notice
The appellantG must file the appellant’sG notice at the appeal CourtG within:
(1) such period as may be directed by the lower CourtG which should not normally exceed 28 days and which may be longer or shorter than the period referred to in (2); or
(2) where the CourtG makes no such direction, 14 days after the date of the decision of the lower CourtG that the appellantG wishes to appeal.
Where the lower CourtG JudgeG announces his decision and reserves the reasons for his judgmentG or order until a later date, he should, in the exercise of powers under Rule 44.36(1), fix a period for filingG the appellant’sG notice at the appeal CourtG that takes this into account.
Subject to Rule 44.39 and unless the appeal CourtG orders otherwise, a sealed copy of the appellant’sG notice, together with any skeleton arguments, must be served on each respondentG :
(1) as soon as practicable; and
(2) in any event not later than 7 days;
after it is filed.
Where the requirement to serve a skeleton argument is modified by Rule 44.75 the skeleton argument should be served as soon as it is filed.
The appellantG must, as soon as practicable, file a certificate of serviceG of the documents referred to in Rule 44.38.
Where the time for filingG an appellant’sG notice has expired, the appellantG must:
(1) file the appellant’sG notice; and
(2) include in that appellant’sG notice an application for an extension of time.
The appellant’sG notice should state the reason for the delay and the steps taken prior to the application being made.
Where the appellantG is applying for permission to appeal in his appellant’sG notice, he must serve on the respondentsG his appellant’sG notice and skeleton argument (but not the appeal bundle), unless the appeal CourtG directs otherwise.
Where permission to appeal:
(1) has been given by the lower CourtG ; or
(2) is not required;
the appellantG must serve the appeal bundle on the respondentsG with the appellant’sG notice.
Where the appellant’sG notice includes an application for an extension of time and permission to appeal has been given or is not required the respondentG has the right to be heard on that application. He must be served with a copy of the appeal bundle. However, a respondentG who unreasonably opposes an extension of time runs the risk of being ordered to pay the appellant’sG costs of that application.
The CourtG may dispense with the requirement for serviceG of the notice on a respondentG . Any application noticeG seeking an order under Rule 9.32 to dispense with serviceG should set out the reasons relied on and be verified by a statement of truth.
Unless the CourtG otherwise directs a respondentG need not take any action when served with an appellant’sG notice until such time as notification is given to him that permission to appeal has been given.
Variation of time
An application to vary the time limit for filingG an appeal noticeG must be made to the appeal CourtG .
The parties may not agree to extend any date or time limit set by:
(1) these RulesG ;
(2) any Practice Direction; or
(3) an order of the appeal CourtG or the lower CourtG .
Notice of an application to be made to the appeal CourtG for a remedy incidental to the appeal may be included in the appeal noticeG or in a Part 23 application noticeG .
The applicant must file the following documents with the notice:
(1) one additional copy of the application noticeG for the appeal CourtG and one copy for each of the respondentsG ;
(2) where applicable a sealed copy of the order which is the subject of the main appeal; and
(3) a bundle of documents in support which should include:
(a) the Part 23 application noticeG ; and
(b) any witness statements and affidavitsG filed in support of the application noticeG .
The appellantG must file the following documents together with an appeal bundle with his appellant’sG notice:
(1) two additional copies of the appellant’sG notice for the appeal CourtG ;
(2) one copy of the appellant’sG notice for each of the respondentsG ; and
(3) one copy of his skeleton argument for each copy of the appellant’sG notice that is filed.
An appellantG must include in his appeal bundle the following documents:
(1) a sealed copy of the appellant’sG notice;
(2) a sealed copy of the order being appealed;
(3) a copy of any order giving or refusing permission to appeal, together with a copy of the Judge’sG reasons for allowing or refusing permission to appeal;
(4) any affidavitG or witness statement filed in support of any application included in the appellant’sG notice;
(5) a copy of his skeleton argument;
(6) a transcript or note of judgmentG , and in cases where permission to appeal was given by the lower CourtG or is not required those parts of any transcript of evidence which are directly relevant to any question at issue on the appeal;
(7) the claim form and statements of case (where relevant to the subject of the appeal);
(8) any application noticeG (or case management documentation) relevant to the subject of the appeal;
(9) in the case of judicial review or a statutory appeal, the original decision which was the subject of the application to the lower CourtG ;
(10) in cases where the appeal is from a tribunalG , a copy of the tribunal’sG reasons for the decision, a copy of the decision reviewed by the tribunalG and the reasons for the original decision and any document filed with the tribunalG setting out the grounds of appeal from that decision;
(11) any other documents which the appellantG reasonably considers necessary to enable the appeal CourtG to reach its decision on the hearing of the application or appeal; and
(12) such other documents as the CourtG may direct.
All documents that are extraneous to the issues to be considered on the application or the appeal must be excluded. The appeal bundle may include affidavitsG , witness statements, summaries, experts’ reports and exhibits but only where these are directly relevant to the subject matter of the appeal.
The appeal bundle must contain a certificate signed by the appellant’sG legal representativesG to the effect that they have read and understood Rule 44.55 above and that the composition of the appeal bundle complies with it.
Where it is not possible to file all the above documents, the appellantG must indicate which documents have not yet been filed and the reasons why they are not currently available. The appellantG must then provide a reasonable estimate of when the missing document or documents can be filed and file them as soon as reasonably practicable.
In cases where the appeal bundle comprises more than 500 pages, exclusive of transcripts, the appellant’sG legal representativesG must, after consultation with the respondent’sG legal representativesG , also prepare and file with the CourtG , in addition to copies of the appeal bundle (as amended in accordance with Rule 44.119) the requisite number of copies of a core bundle.
The core bundle must be filed within 28 days of receipt of the order giving permission to appeal or, where permission to appeal was granted by the lower CourtG or is not required, within 28 days of the date of serviceG of the appellant’sG notice on the respondentG .
The core bundle:
(1) must contain the documents which are central to the appeal; and
(2) must not exceed 150 pages.
Preparation of bundles
Rejection of bundles
Where documents are copied unnecessarily or bundled incompletely, costs may be disallowed. Where the provisions of this Part as to the preparation or delivery of bundles are not followed the bundle may be rejected by the CourtG or be made the subject of a special costs order.
Avoidance of duplication
No more than one copy of any document should be included unless there is a good reason for doing otherwise (such as the use of a separate core bundle in Rule 44.58).
The following rules regarding pagination shall apply:
(1) Bundles must be paginated, each page being numbered individually and consecutively. The pagination used at trial must also be indicated. Letters and other documents should normally be included in chronological order. (An exception to consecutive page numbering arises in the case of core bundles where it may be preferable to retain the original numbering).
(2) Page numbers should be inserted in bold figures at the bottom of the page and in a form that can be clearly distinguished from any other pagination on the document.
Format and presentation
The following rules regarding format and presentation shall apply:
(1) Where possible the documents should be in A4 format. Where a document has to be read across rather than down the page, it should be so placed in the bundle as to ensure that the text starts nearest the spine.
(2) Where any marking or writing in colour on a document is important, the document must be copied in colour or marked up correctly in colour.
(3) Documents which are not easily legible should be transcribed and the transcription marked and placed adjacent to the document transcribed.
(4) Documents in a language other than English should be translated and the translation marked and placed adjacent to the document translated. The translation should be agreed or, if it cannot be agreed, each party’s proposed translation should be included.
(5) The size of any bundle should be tailored to its contents. A large lever arch file should not be used for just a few pages nor should files be overloaded.
(6) Where it will assist the CourtG , different sections of the file may be separated by cardboard or other tabbed dividers so long as these are clearly indexed. Where, for example, a document is awaited when the appeal bundle is filed, a single sheet of paper can be inserted after a divider, indicating the nature of the document awaited. For example, ‘Transcript of evidence of Mr J Smith (to follow)’.
The following rules regarding binding shall apply:
(1) All documents, with the exception of transcripts, must be bound together. This may be in a lever arch file, ring binder or plastic folder. Plastic sleeves containing loose documents must not be used. Binders and files must be strong enough to withstand heavy use.
(2) Large documents such as plans should be placed in an easily accessible file. Large documents which will need to be opened up frequently should be inserted in a file larger than A4 size.
Indices and labels
The following rules regarding indices and labels shall apply:
(1) An index must be included at the front of the bundle listing all the documents and providing the page references for each. In the case of documents such as letters, invoices or bank statements, they may be given a general description.
(2) Where the bundles consist of more than one file, an index to all the files should be included in the first file and an index included for each file. Indices should, if possible, be on a single sheet. The full name of the case should not be inserted on the index if this would waste space. Documents should be identified briefly but properly.
The following rules regarding identification shall apply:
(1) Every bundle must be clearly identified, on the spine and on the front cover, with the name of the case and the Court’sG reference. Where the bundle consists of more than one file, each file must be numbered on the spine, the front cover and the inside of the front cover.
(2) Outer labels should use large lettering e.g. ‘Appeal Bundle A’ or ‘Core Bundle’. The full title of the appeal and legal representatives’G names and addresses should be omitted. A label should be used on the front as well as on the spine.
All staples, heavy metal clips, etc., must be removed.
Statement of case
The following rules regarding statements of case shall apply:
(1) Statements of case should be assembled in ‘chapter’ form — i.e. claim followed by particulars of claim, followed by further information, irrespective of date.
(2) Redundant documents, e.g. particulars of claim overtaken by amendments, requests for further information recited in the answers given, should generally be excluded.
The following rules regarding new documents shall apply:
(1) Before a new document is introduced into bundles which have already been delivered to the CourtG , steps should be taken to ensure that it carries an appropriate bundle/page number so that it can be added to the CourtG documents. It should not be stapled and it should be prepared with punch holes for immediate inclusion in the binders in use.
(2) If it is expected that a large number of miscellaneous new documents will from time to time be introduced, there should be a special tabbed empty loose-leaf file for that purpose. An index should be produced for this file, updated as necessary.
Correspondence between legal representatives
Since correspondence between legal representativesG is unlikely to be required for the purposes of an appeal, only those letters which will need to be referred to should be copied.
Sanctions for non-compliance
If the appellantG fails to comply with the requirements as to the provision of bundles of documents, the application or appeal will be referred for consideration to be given as to why it should not be dismissed for failure so to comply.
The appellant’sG notice must, subject to Rule 44.75, be accompanied by a skeleton argument. Alternatively the skeleton argument may be included in the appellant’sG notice. Where the skeleton argument is so included it will not form part of the notice for the purposes of Rule 44.88.
Where it is impracticable for the appellant’sG skeleton argument to accompany the appellant’sG notice it must be filed and served on all respondentsG within 14 days of filingG the notice.
Content of skeleton arguments
A skeleton argument filed on behalf of the appellantG should contain in paragraph 1 the legal representatives’G time estimate for the hearing of the appeal.
A skeleton argument must contain a numbered list of the points which the party wishes to make. These should both define and confine the areas of controversy. Each point should be stated as concisely as the nature of the case allows.
A numbered point must be followed by a reference to any document on which the party wishes to rely.
A skeleton argument must state, in respect of each authority cited:
(1) the proposition of law that the authority demonstrates; and
(2) the parts of the authority (identified by page or paragraph references) that support the proposition.
If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state the reason for taking that course.
The statement referred to in Rule 44.80 should not materially add to the length of the skeleton argument but should be sufficient to demonstrate, in the context of the argument:
(1) the relevance of the authority or authorities to that argument; and
(2) that the citation is necessary for a proper presentation of that argument.
The cost of preparing a skeleton argument which:
(2) was not filed within the time limits provided by this Part (or any further time granted by the Court);
will not be allowed on assessment except to the extent that the CourtG otherwise directs.
The appellantG should consider what other information the appeal CourtG will need. This may include a list of persons who feature in the case or glossaries of technical terms. A chronology of relevant events will be necessary in most appeals.
Suitable record of the judgment
Where the judgmentG to be appealed has been officially recorded by the CourtG , an approved transcript of that record should accompany the appellant’sG notice. Photocopies will not be accepted for this purpose. However, where there is no officially recorded judgmentG , the following documents will be acceptable:
(1) Written judgments
Where the judgmentG was made in writing a copy of that judgmentG endorsed with the Judge’sG signature.
(2) Note of judgment
When judgmentG was not officially recorded or made in writing a note of the judgmentG (agreed between the appellant’sG and respondent’sG legal representativesG ) should be submitted for approval to the JudgeG whose decision is being appealed. If the parties cannot agree on a single note of the judgmentG , both versions should be provided to that JudgeG with an explanatory letter. For the purpose of an application for permission to appeal the note need not be approved by the respondentG or the lower CourtG JudgeG .
(3) Reasons for judgment in tribunal cases
A sealed copy of the tribunal’sG reasons for the decision.
An appellantG may not be able to obtain an official transcript or other suitable record of the lower Court’sG decision within the time within which the appellant’sG notice must be filed. In such cases the appellant’sG notice must still be completed to the best of the appellant’sG ability on the basis of the documentation available. However it may be amended subsequently with the permission of the appeal CourtG .
Transcripts or notes of evidence
When the evidence is relevant to the appeal an official transcript of the relevant evidence must be obtained. Transcripts or notes of evidence are generally not needed for the purpose of determining an application for permission to appeal.
If evidence relevant to the appeal was not officially recorded, a typed version of the Judge’sG notes of evidence must be obtained.
Amendment of appeal notice
An appeal noticeG may not be amended without the permission of the appeal CourtG . An application to amend and any application in opposition will normally be dealt with at the appeal hearing unless that course would cause unnecessary expense or delay in which case a request should be made for the application to amend to be heard in advance.
Striking out appeal notices and setting aside or imposing conditions on permission to appeal
The appeal CourtG may:
(1) strike outG the whole or part of an appeal noticeG ;
(2) set asideG permission to appeal in whole or in part;
(3) impose or vary conditions upon which an appeal may be brought.
The CourtG will only exercise its powers under Rule 44.88 where there is a compelling reason for doing so.
Procedure after permission is obtained
(1) permission to appeal is given by the appeal CourtG ; or
(2) the appellant’sG notice is filed in the appeal CourtG ; and:
(a) permission was given by the lower CourtG ; or
(b) permission is not required.
If the appeal CourtG gives permission to appeal, the appeal bundle must be served on each of the respondentsG within 7 days of receiving the order giving permission to appeal.
The appeal CourtG will send the parties:
(1) notification of the date of the hearing;
(2) where permission is granted by the appeal CourtG a copy of the order giving permission to appeal; and
(3) any other directions given by the CourtG .
Where the appeal CourtG grants permission to appeal, the appellantG must add the following documents to the appeal bundle:
(1) the respondent’sG notice and skeleton argument (if any);
(2) those parts of the transcripts of evidence which are directly relevant to any question at issue on the appeal;
(3) the order granting permission to appeal and, where permission to appeal was granted at an oral hearing, the transcript (or note) of any judgmentG which was given; and
(4) any document which the appellantG and respondentG have agreed to add to the appeal bundle in accordance with Rule 44.119.
Where permission to appeal has been refused on a particular issue, the appellantG must remove from the appeal bundle all documents that are relevant only to that issue.
The legal representativesG who will argue the appeal must provide a time estimate within 14 days of the appellantG receiving the order giving permission to appeal. It should exclude the time required by the CourtG to give judgmentG . If the respondentG disagrees with the time estimate, the respondentG must inform the CourtG within 7 days of receipt of the estimate. In the absence of such notification the respondentG will be deemed to have accepted the estimate proposed on behalf of the appellantG .
A respondentG may file and serve a respondent’sG notice.
A respondentG who:
(1) is seeking permission to appeal from the appeal CourtG ; or
(2) wishes to ask the appeal CourtG to uphold the order of the lower CourtG for reasons different from or additional to those given by the lower CourtG ;
must file a respondent’sG notice.
Where the respondentG seeks permission from the appeal CourtG it must be requested in the respondent’sG notice.
A respondentG who wishes to ask the appeal CourtG to vary the order of the lower CourtG in any way must appeal and permission will be required on the same basis as for an appellantG .
A respondentG who wishes only to request that the appeal CourtG upholds the judgmentG or order of the lower CourtG whether for the reasons given in the lower CourtG does not make an appeal and does not therefore require permission to appeal in accordance with Rule 44.5.
A respondentG who wishes to appeal or who wishes to ask the appeal CourtG to uphold the order of the lower CourtG for reasons different from or additional to those given by the lower CourtG must file a respondent’sG notice.
If the respondentG does not file a respondent’sG notice, he will not be entitled, except with the permission of the CourtG , to rely on any reason not relied on in the lower CourtG .
Time limits for respondent’s notice
A respondent’sG notice must be filed within:
(1) such period as may be directed by the lower CourtG ; or
(2) where the CourtG makes no such direction, 14 days after the date in Rule 44.106.
The date referred to in Rule 44.105 is:
(1) the date the respondentG is served with the appellant’sG notice where:
(a) permission to appeal was given by the lower CourtG ; or
(b) permission to appeal is not required;
(2) the date the respondentG is served with notification that the appeal CourtG has given the appellantG permission to appeal; or
(3) the date the respondentG is served with notification that the application for permission to appeal and the appeal itself are to be heard together.
Where an extension of time is required the extension must be requested in the respondent’sG notice and the reasons why the respondentG failed to act within the specified time must be included.
The respondentG must file a skeleton argument for the CourtG in all cases where he proposes to address arguments to the CourtG . The respondent’sG skeleton argument may be included within a respondent’sG notice. Where a skeleton argument is included within a respondent’sG notice it will not form part of the notice for the purposes of Rule 44.88.
Unless the appeal CourtG orders otherwise a respondent’sG notice must be served on the appellantG and any other respondentG :
(1) as soon as practicable; and
(2) in any event not later than 7 days;
after it is filed.
A respondentG who:
(1) files a respondent’sG notice; but
(2) does not include his skeleton argument within that notice;
must file and serve his skeleton argument within 14 days of filingG the notice.
A respondentG who does not file a respondent’sG notice but who files a skeleton argument must file and serve that skeleton argument at least 7 days before the appeal hearing.
The respondentG must:
(1) serve his skeleton argument on:
(a) the appellantG ; and
(b) any other respondentG ;
at the same time as he files it at the CourtG ; and
(2) file a certificate of serviceG .
Content of respondent’s skeleton argument
A respondent’sG skeleton argument must conform to the directions at Rules 44.76 to 44.83 with any necessary modifications. It should, where appropriate, answer the arguments set out in the appellant’sG skeleton argument.
Applications within respondent’s notice
A respondentG may include an application within a respondent’sG notice in accordance with Rule 44.51 above.
Filing respondent’s notice and skeleton argument
The respondentG must file the following documents with his respondent’sG notice in every case:
(1) two additional copies of the respondent’sG notice for the appeal CourtG ; and
(2) one copy each for the appellantG and any other respondentsG .
The respondentG may file a skeleton argument with his respondent’sG notice and—
(1) where he does so he must file two copies; and
If the respondentG wishes to rely on any documents which he reasonably considers necessary to enable the appeal CourtG to reach its decision on the appeal in addition to those filed by the appellantG , he must make every effort to agree amendments to the appeal bundle with the appellantG .
If the legal representativesG of the parties are unable to reach agreement, the respondentG may prepare a supplemental bundle.
If the respondentG prepares a supplemental bundle he must file it, together with the requisite number of copies for the appeal CourtG , at the appeal CourtG :
(1) with the respondent’sG notice; or
(2) if a respondent’sG notice is not filed, within 21 days after he is served with the appeal bundle.
The respondentG must serve:
(1) the respondent’sG notice;
(2) his skeleton argument (if any); and
(3) the supplemental bundle (if any);
(a) the appellantG ; and
(b) any other respondentG ;
at the same time as he files them at the CourtG .
Bundles of authorities
Once the parties have been notified of the date fixed for the hearing, the appellant’sG legal representativeG must, after consultation with his opponent, file a bundle containing photocopies of the authorities upon which each side will rely at the hearing.
The bundle of authorities should, in general:
(1) have the relevant passages of the authorities marked;
(2) not include authorities for propositions not in dispute; and
(3) not contain more than 10 authorities unless the scale of the appeal warrants more extensive citation.
The bundle of authorities must be filed:
(1) at least 7 days before the hearing; or
(2) where the period of notice of the hearing is less than 7 days, immediately.
If, through some oversight, a party intends, during the hearing, to refer to other authorities the parties may agree a second agreed bundle. The appellant’sG legal representativesG must file this bundle at least 48 hours before the hearing commences.
A bundle of authorities must bear a certification by the legal representativesG responsible for arguing the case that the requirements of Rule 44.79 to 44.81 have been complied with in respect of each authority included.
Supplementary skeleton arguments
A supplementary skeleton argument on which the appellantG wishes to rely must be filed at least 14 days before the hearing.
A supplementary skeleton argument on which the respondentG wishes to rely must be filed at least 7 days before the hearing.
At the hearing the CourtG may refuse to hear argument from a party not contained in a skeleton argument filed within the relevant time limit set out in this paragraph.
Papers for the appeal hearing
All the documents which are needed for the appeal hearing must be filed at least 7 days before the hearing.
Any party who fails to comply with the provisions of Rule 44.131 may be required to attend before the Chief JusticeG to seek permission to proceed with, or to oppose, the appeal.
Appeals to the Court of Appeal
On hearing an appeal from a decision of the Court of First Instance, the Court of Appeal may:
(1) make or give any order that could have been made or given by the Court of First Instance;
(2) attach terms or conditions to an order it makes;
(3) annul or set asideG a decision;
(4) require or prohibit the taking of a specific action or of action of a specified class;
(5) make a declaration of facts; or
(6) make any other order that the Court of Appeal considers appropriate or just.
Appeals to the Court of First Instance
Unless another Rule, Practice Direction or enactment provides otherwise, on hearing an appeal, the Court of First Instance may:
(1) affirm, reverse or vary the decision appealed;
(2) set asideG the decision appealed, in whole or in part;
(3) make any other order it considers appropriate;
(4) remit proceedings to the tribunalG from which the appeal was brought, subject to any directions the Court of First Instance considers appropriate; or
(5) make any order or direction that is in the interests of justice.
Hearings of appeals
Every appeal will be limited to a review of the decision of the lower CourtG unless:
(1) the CourtG considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing;
(2) Rule 44.136 applies; or
(3) any other Rule or enactment requires a re-hearing.
The hearing of an appeal will be a re-hearing (as opposed to a review of the decision of the lower CourtG ) if the appeal is from the decision of a person or other body and the person or other body:
(1) did not hold a hearing to come to that decision; or
(2) held a hearing to come to that decision, but the procedure adopted did not provide for the consideration of evidence.
The appeal CourtG may exercise its powers in relation to the whole or part of an order of the lower CourtG .
At the hearing of the appeal a party may not rely on a matter not contained in his appeal noticeG unless the appeal CourtG gives permission.
Evidence on appeal
Unless it orders otherwise, the appeal CourtG will not receive:
(1) oral evidence; or
(2) evidence which was not before the lower CourtG .
Subject to Rule 44.139, the CourtG may receive further evidence, including:
(1) oral testimony;
(2) unsworn and sworn written evidence;
(3) evidence by video link, telephone or other means in accordance with what is appropriate in the circumstances; or
(4) evidence given in accordance with Part 29.
The appeal CourtG may draw any inference of fact which it considers justified on the evidence.
Conditions for allowing an appeal
The Court of Appeal will allow an appeal from a decision of the Court of First Instance where the decision of the lower CourtG was:
(1) wrong; or
(2) unjust because of a serious procedural or other irregularity in the proceedings in the lower CourtG .
The Court of First Instance will allow an appeal from a decision of a tribunalG provided for in the LawG , DIFC Law or Rules of CourtG where the decision was:
(1) wrong in relation to a question of law;
(2) unjust because of procedural unfairness or a miscarriage of justice; and/or
(3) wrong in relation to any other matter provided for in or under DIFC Law.
The Court of First Instance will allow an appeal not referred to in Rule 44.143 where the decision was:
(1) wrong; or
(2) unjust because of a serious procedural or other irregularity in the proceedings.
Non-disclosure of Part 32 offers
The fact that a Part 32 offer or payment into CourtG has been made must not be disclosed to any JudgeG of the appeal CourtG who is to hear or determine:
(1) an application for permission to appeal; or
(2) an appeal;
until all questions (other than costs) have been determined.
Rule 44.145 does not prevent disclosure in any application in the appeal proceedings if disclosure of the fact that a Part 32 offer or payment into CourtG has been made is properly relevant to the matter to be decided.
Who may exercise the powers of the Court of Appeal
The RegistrarG may exercise the jurisdictionG of the Court of Appeal with the consent of the Chief JusticeG to do all things necessary or convenient for the purpose of assisting the JudgesG of the Court of Appeal in the exercise of their powers or duties.
A single JudgeG may exercise the appellate jurisdictionG of the Court of Appeal relating to an application for:
(1) leave to appeal to the Court of Appeal;
(2) an extension of time within which to institute an appeal to the Court of Appeal;
(3) leave to amend the grounds of an appeal to the Court of Appeal; or
(4) a stayG .
A request under Rule 44.151 must be filed within 7 days after the party is served with notice of the decision.
A single JudgeG may refer any matter for a decision by a Court consisting of two or more judgesG .
Dismissal of applications or appeals by consent
Where an appellantG does not wish to pursue an application or an appeal, he may request the appeal CourtG for an order that his application or appeal be dismissed. If such a request is granted it will usually be on the basis that the appellantG pays the costs of the application or appeal.
If the appellantG wishes to have the application or appeal dismissed without costs, his request must be accompanied by a consent signed by the respondentG or his legal representativeG stating that the respondentG consents to the dismissal of the application or appeal without costs.
Where a settlement has been reached disposing of the application or appeal, the parties may make a joint request to the CourtG asking that the application or appeal be dismissed by consent. If the request is granted the application or appeal will be dismissed.
Allowing unopposed appeals or applications without a hearing
The appeal CourtG will not normally make an order allowing an appeal unless satisfied that the decision of the lower CourtG was wrong, but the appeal CourtG may set asideG or vary the order of the lower CourtG with consent and without determining the merits of the appeal, if it is satisfied that there are good and sufficient reasons for doing so. Where the appeal CourtG is requested by all parties to allow an application or an appeal the CourtG may consider the request without a hearing. The request should set out the relevant history of the proceedings and the matters relied on as justifying the proposed order and be accompanied by a copy of the proposed order.
Availability of reserved judgments before hand down
A copy of the written judgmentG will be made available to the parties’ legal representativesG by 4 p.m. on the second working day before judgmentG is due to be pronounced or such other period as the CourtG may direct. This can be shown, in confidence, to the parties but only for the purpose of obtaining instructions and on the strict understanding that the judgmentG , or its effect, is not to be disclosed to any other person. A working day is any day on which the Court Office is open for business.
The appeal will be listed for judgmentG and the judgmentG handed down at the appropriate time.
Attendance of legal representatives on the handing down of a reserved judgment
Where any consequential orders are agreed, the parties’ legal representatives need not attend on the handing down of a reserved judgmentG . Where a legal representative does attend the CourtG may, if it considers such attendance unnecessary, disallow the costs of the attendance. If the parties do not indicate that they intend to attend, where the appeal was heard by more than one JudgeG , the judgmentG may be handed down by a single member of the CourtG .
Agreed orders following judgment
The parties must, in respect of any draft agreed orders file 4 copies in the Court Office, no later than 12 noon on the working day before the judgmentG is handed down.
A copy of a draft order must bear the case reference, the date the judgmentG is to be handed down and the name of the presiding JudgeG .
Corrections to the draft judgment
Any proposed correction to the draft judgmentG should be sent to the JudgeG who prepared the draft with a copy to any other party.
Immediate assessment of costs
Costs are likely to be assessed by way of immediate assessment at the following hearings:
(1) contested directions hearings;
(2) applications for permission to appeal at which the respondentG is present;
(3) dismissal list hearings in the Court of Appeal at which the respondentG is present;
(4) appeals from case management decisions; and
(5) appeals listed for one day or less.
Parties attending any of the hearings referred to in Rule 44.165 should be prepared to deal with the immediate assessment.
Appeals to the Court of First Instance from the Director of Employment Standards
Rules 44.168 to 44.177 apply to appeals to the Court of First Instance from a determination, decision, or fine of the Director of Employment Standards pursuant to Article 83(1) of the Employment Law, DIFC Law 4 of 2005.
An appeal referred to in Rule 44.167 shall be filed within 30 days of receipt of the determination, decision, or fine appealed and in accordance with the requirements of this Part.
The Director of Employment Standards must be named as a party to an appeal referred to in Rule 44.167.
The CourtG may grant a stayG of the decision appealed from until the disposition of the appeal.
The CourtG may attach conditions to the stayG , including requiring a party to deposit as security part or all of a monetary order.
The Director of Employment Standards shall provide the CourtG with the record that was before him at the time the determination, order or fine was made, including any witness statement and documents considered by him.
The CourtG may consider any other relevant evidence, in addition to the record.
Before considering the appeal, the Court of First Instance may:
(1) refer the matter back to the Director of Employment Standards for further investigation; or
(2) recommend that an attempt be made to settle the matter.
The CourtG may dismiss the appeal without a hearing if satisfied that:
(1) the appeal is not within the Court’sG jurisdictionG ;
(2) the appeal is frivolous or trivial or is not brought in good faith.
On hearing the appeal the CourtG may:
(1) decide all questions of fact or law arising in the course of an appeal;
(2) refer the matter back to the Director of Employment Standards; or
(3) confirm, vary or cancel the determination, decision or fine under appeal, or make another decision that it considers proper.
The Director of Employment Standards shall comply with any directions the CourtG gives to him.
No second appeals
No appeal lies from a decision of the Court of First Instance or the Court of Appeal on an appeal.
Reopening of final appeals
The Court of Appeal or the Court of First Instance will not reopen a final determination of any appeal unless:
(1) it is necessary to do so in order to avoid real injustice;
(2) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(3) there is no alternative effective remedy.
Permission is needed to make an application under Rule 44.179 to reopen a final determination of an appeal even in cases where permission was not needed for the original appeal.
Permission must be sought from the CourtG whose decision the applicant wishes to reopen.
The application for permission must be made by application noticeG and supported by written evidence, verified by a statement of truth.
A copy of the application for permission must not be served on any other party to the original appeal unless the CourtG so directs.
Where the CourtG directs that the application for permission is to be served on another party, that party may within 14 days of the serviceG on him of the copy of the application file and serve a written statement either supporting or opposing the application.
The application for permission, and any written statements supporting or opposing it, will be considered on paper by a single JudgeG , and will be allowed to proceed only if the JudgeG so directs.
There is no right to an oral hearing of an application for permission unless, exceptionally, the JudgeG so directs.
The JudgeG will not grant permission without directing the application to be served on the other party to the original appeal and giving him an opportunity to make representations.
There is no right of appeal or review from the decision of the JudgeG on the application for permission, which is final.