PD2.4 Court of Final Appeal - Time Management

Practice Direction - 2.4

Court of Final Appeal – Time Management

1. This Practice Direction is aimed at achieving greater efficiency in the use of the Court’s time.  It seeks to limit unacceptably long written and oral submissions and addresses (i) the length of written materials submitted; (ii) the filing times for such materials; (iii) the length of hearings; and (iv) the length of oral submissions.  It supplements and should be read together with the Hong Kong Court of Final Appeal Rules (“the Rules”) made under section 39 of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  It is made pursuant to the Chief Justice’s powers under r 78 of the Rules.

2. Part I deals with applications for leave to appeal and Part II concerns substantive appeals.  They apply in all cases but are subject to the Court’s discretion (exercised by a single Permanent Judge or by the Registrar) to override or vary the rules here laid down by special direction as a matter of case management.

Part I – Applications for leave to appeal

3. Parties and their legal advisers are reminded that under the Rules, the notice of application for leave to appeal must be in the prescribed form[1] and must “state succinctly all such facts and matters as may be necessary to enable the Appeal Committee to consider whether leave ought to be granted” and “deal with the merits of the case only so far as is necessary to explain the grounds upon which leave to appeal is sought”.[2]  The tendency to turn the notice of application into a written submission is unacceptable and the Registrar may refuse to accept such notices for filing.

4. Where the Rule 7 procedure is adopted by the Registrar, written submissions showing cause why the application should not be dismissed must generally be no more than 5,000 words in length overall (including footnotes and any appendices), printed in a clearly legible 14 point or larger typeface on one-sided A4 paper and accompanied by a soft copy in Word format enabling a word count to be performed electronically.  Non-compliant submissions can expect to be rejected.

5. Skeleton arguments filed in support of or opposing the grant of leave must solely be directed at helping the Appeal Committee to determine whether grounds have been made out for the appeal to be heard by the full Court as set out in sections 22 and 32 of the Court’s Ordinance.  Skeleton arguments must not seek to argue the appeal as if leave had already been granted.

6. Skeleton arguments must be no more than 5,000 words in length overall (including footnotes and any appendices), printed in a clearly legible 14 point or larger typeface on one-sided A4 paper and accompanied by a soft copy in Word format enabling a word count to be performed electronically. The applicant’s and respondent’s skeleton arguments must be filed not less than 42 days and 21 days respectively before the date fixed for hearing.  Any submissions in reply must be filed not later than 14 days before the hearing date.  Non-compliant submissions can expect to be rejected.

7. At oral hearings, the parties should assume that the Appeal Committee has read their skeleton arguments and the judgments below.  Oral submissions should not merely repeat what is contained in the skeleton arguments and the hearing should not last longer than one hour overall unless there are special circumstances.  Applications to be permitted a longer hearing should be made to the Registrar at least 14 days before the hearing date.  The parties are expected to agree amongst themselves how the time allowed for the hearing is to be shared.  In default of agreement, the applicant and respondent will each be confined to 25 minutes in opening, with 10 minutes allowed to the applicant in reply.  Pursuant to Rule 44, the Registrar, a single Permanent Judge or the Appeal Committee may at any time including, in the case of the Appeal Committee, at the hearing, give directions as to the time to be allowed for oral submissions, for example, where there are multiple parties.

8. Bundles of documents and authorities must be confined to those which are essential to the leave application.  Costs sanctions can be expected where unnecessary documentation is lodged in leave applications.

Part II - Substantive Appeals

9. Parties and their legal advisers are reminded of the time limits laid down for the filing of their Cases under the Rules[3] and of the requirement that the Case should “state, as concisely as possible, the circumstances out of which the appeal arises” and “succinctly state the submissions advanced in support of the appeal, or against it, as the case may be”.[4]  The Rules emphasise that “care shall be taken to avoid, as far as possible, the reprinting of long extracts from the Record.”[5]

10. There has been an unacceptable tendency for those rules to be ignored and for increasingly longer and verbose Cases to be filed.  From the coming into effect of this Practice Direction, unless there are special circumstances, printed Cases must be no more than 10,000 words in length overall (including footnotes and any appendices), printed in a clearly legible 14 point or larger typeface on one-sided A4 paper and accompanied by a soft copy in Word format enabling a word count to be performed electronically. Non-compliant Cases can expect to be rejected.  Any applications to be permitted to file a longer Case should be made in writing via the Registrar to a single Permanent Judge at least 21 days before the date when the Case is due to be filed.

11. Subject to leave granted by the Registrar[6], Supplemental Cases must be no more than 2,000 words in length overall (including footnotes and any appendices), printed in a clearly legible 14 point or larger typeface on one-sided A4 paper and accompanied by a soft copy in Word format enabling a word count to be performed electronically.  Non-compliant Supplemental Cases can expect to be rejected.

12. Where the Appeal Committee grants leave to appeal, it will, so far as possible give directions as to the length of the hearing.  In the absence of such directions, the parties should furnish agreed or individual estimates of time required for the hearing, specifying the estimated time needed for the respective addresses of counsel, before or at the latest when the Notice of Appeal is filed.  In general, hearings are set down for one or two days and the parties are expected to reach agreement as to how the time allowed for the hearing is to be shared.  In the absence of agreement, the Registrar, a single Permanent Judge or the Court will give directions in accordance with Rule 44.

13. As is the case under the Rules,[7] the Court may for sufficient cause shown excuse the parties from compliance with any of the requirements of this Practice Direction and may, without having to conduct a hearing and on such terms as it thinks just, extend or abridge time.  It will, however generally not entertain applications for such directions unless good grounds are made out, supported by affidavit where appropriate.

14. This Practice Direction comes into effect on 2 February 2015 and applies to the above specified documents to be filed with the Registry and hearings scheduled to be heard on or after that date.

Dated this   28  day of    January    2015.