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Appendix 3.7 – England - Rules of the Supreme Court - order 55

COPY ORDER 55
RULES OF THE SUPREME COURT

APPEALS TO HIGH COURT FROM COURT, TRIBUNAL OR PERSON : GENERAL
Application (O.55, r.1)
1. Subject to paragraphs (2) (3) and (4) this Order shall apply to every appeal which by or under any enactment lies to the High Court from any court, tribunal or person.
2. This Order shall not apply to an appeal by case stated or to any appeal to which Order 73 applies.
3. The following rules of this Order shall not apply to an appeal from a county court to a single judge under section 375 of the Insolvency Act 1986, but subject to the Insolvency Rules 1986, as amended, Order 59 shall, with the necessary modifications, apply to such an appeal as it applies to an appeal from a county court to the Court of Appeal.
4. The following rules of this Order shall, in relation to an appeal to which this Order applies, have effect subject to any provision made in relation to that appeal by any other provision of these rules or by or under any enactment.
5. In this Order references to a tribunal shall be construed as references to any tribunal constituted by or under any enactment other than any of the ordinary courts of law.

Amended by R.S.C. (Amendment No.1) 1968 (SI 1968 No. 1244) Insolvency (Amendment of Subordinate Legislation) Order (SI 1986 No.2001) and R.S.C. (Amendment No.3) 1989 (SI 1989 No.1307).
55/1/1 General effect of Order - This Order governs the procedure to be followed in relation to statutory appeals to the High Court from a judgment, order or decision of a Court, tribunal or person. Exceptions are appeals by way of case stated, which are dealt with by O.56, and appeals from the county court to a single Judge under s.375 of the Insolvency Act 1986 where O.59 is applied by virtue of rule 132 of the Bankruptcy Rules 1952, as amended by SI 1982 No.1437, save that the Chief Registrar in Bankruptcy exercises, for that purpose, the functions of the Registrar of Civil Appeals. Further, Rule 1(2) now makes clear that this Order does not apply to appeals in arbitration proceedings, these being governed by O.73. It is to be noted that the provisions of O.55 apply "subject to any provision made in relation to that appeal by any other provision of these rules or by or under any enactment". Care must therefore be taken to examine the statutory basis of the appeal, and any relevant provisions of the Rules of the Supreme Court, since most statutory appeals will be thus affected. Examples are to be found in relation to appeals from the VAT Tribunal, which are affected by O.91 r.6, and appeals against decisions of auditors under the Local Government Finance Act 1982 which are affected by O.98. Moreover, in many instances appeals may be limited by the statutory provision creating the right appeal to points of law and thus the provisions of this Order concerning a rehearing will have no application - Green v The Minister of Housing and Local Government [1967] 2 Q.B.606.
55/1/2 Tribunals whose decisions may be the subject of an appeal under this order by way of a rehearing include the Statutory Committee of the Council of the Royal Pharmaceutical Society of Great Britain, the Professional Conduct Committee of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting, the Solicitors Disciplinary Tribunal and the Licensed Conveyancers Discipline and Appeals Committee.
Court to hear appeal (O.55, r.2) Except where it is otherwise provided by these rules or by or under any enactment, an appeal to which this Order applies shall be assigned to the Queen's Bench Division and shall be heard and determined –
(a) where the decision of the High Court on the appeal is final, by a Divisional Court,
(b) in any other case, by a single judge.

Substituted by R.S.C. (Amendment No.3) 1977 (SI 1977 No.1955).
55/2/1 Effect of Rule - The generality of this provision may be subject to exceptions provided elsewhere in the Rules of the Supreme Court, for example in appeals under section 289 or 290 of the Town and Country Planning Act 1990 governed by O.94, r.13 which provides that any such appeal shall be "heard and determined by a single judge unless the court directs that the matter shall be heard and determined by a Divisional Court".
Bringing of appeal (O.55, r.3)
1. An appeal to which this Order applies shall be by way of rehearing and must be brought by originating motion.
2. Every notice of the motion by which such an appeal is brought must state the grounds of the appeal and if the appeal is against a judgment, order or other decision of a court, must state whether the appeal is against the whole or a part of that decision and, if against part only, must specify the part.
3. The bringing of such an appeal shall not operate as a stay of proceedings on the judgment, determination or other decisions against which the appeal is brought unless the Court by which the appeal is to be heard or the court, tribunal or person by which or by whom the decision was given so orders.
55/3/1 Powers - As to the Courts' powers to conduct the appeal by way of rehearing, see the cautionary note at 55/1/1.
55/3/2 Procedure - The grounds of appeal should state the reasons why it is contended that the decision impugned is wrong and it is not sufficient merely to set out the conclusions which the Court will be invited to reach. It is to be noted that only where the appeal is against the judgment, order or other decision of a Court, need the notice of motion state whether the appeal is against the whole or part of the decision. If a stay is sought under r.3(3) application should be made by motion on two days notice.
Service of notice of motion and entry of appeal (O.55, r.4)

1. The persons to be served with notice of the motion by which an appeal to which this Order applies is brought are the following :-

(a) if the appeal is against a judgment, order or other decision of a court, the registrar or clerk of the court and any party to the proceedings in which the decision was given is directly affected by the appeal;
(b) if the appeal is against an order, determination, award or other decision of a tribunal, Minister of the Crown, government department or other person, the chairman of the tribunal, Minister, government department or person, as the case may be, and every party to the proceedings (other than the appellant) in which the decision appealed against was given.

2. The notice must be served, and the appeal entered, within 28 days after the date of the judgment, order, determination or other decision against which the appeal is brought.
3. In the case of an appeal against a judgment, order or decision of a court, the period specified in paragraph 2 shall be calculated from the date on which the decision was given.
4. In the case of an appeal against an order, determination, award or other decision of a tribunal, Minister, government department or other person, the period specified in paragraph 2 shall be calculated from the date on which the notice of the decision, or, in the case where a statement of the reasons for a decision was given later than such notice, on which such a statement was given to the appellant by the person who made the decision or by a person authorised in that behalf to do so.

Amended by R.S.C. (Amendment No.2) 1982 (SI 1982 No.1111).
55/4/1 Procedure - It appears to be uncertain whether a decision or reasons are "given" to an appellant within the meaning of r.4(4) when sent to him or when received by him - see Ringroad Investment Ltd v Secretary of State for the Environment 1970 40 P. & C.R.99 and the judgment of the Court of Appeal in Griffiths and Another v Secretary of State for the Environment and Another, The Times January 28 1982. Although Griffiths was also considered by the House of Lords, [1983] 2 A.C.51, the House's consideration of the difficulty appears to have been limited to appeals under S.245 of the Town and Country Planning Act 1971. An application under O.3, r.5 to extend the period of 28 days may be made by summons supported by affidavit.
It seems likely, however, that in calculating the period regard should be had to the date on which the decision letter was received - see Smith v Secretary of State for the Environment, The Times July 6 1987 considered in Ynys Môn Borough Council v Secretary of State for Wales [1992] C.O.D. 410 {Rose J}. In this latter case the court emphasised that it was the duty of legal advisers either to know or to discover the law and it should not follow that their ignorance of relevant time limits should attract judicial dispensation. Moreover when there would be prejudice to the respondent and there was no substantive and valid reason for exercising the discretion conferred by O.3 r.5 an application for extension of time would be refused.
In the absence of agreement, the court would normally need to be satisfied that there was an acceptable explanation for the delay before extending time. Even where such an explanation was forthcoming the court might still refuse to extend time if the delay was substantial or when to do so would cause significant prejudice to the respondent. In the interests of good administration public law challenges to decisions of tribunals had to be made within limited time scales (a consideration which was absent in ordinary inter partes litigation) and the courts would always be reluctant to extend time in such situations: Regnibourne Ltd v East Lindsey District Council [1993] C.O.D. 297 (Sir Thomas Bingham M.R., Kennedy and Evans L.JJ. dismissing an appeal from the decision of Potts J. [1992] C.O.D.493).
A notice of motion, by which the appeal is brought is entered in the Crown Office, Royal Courts of Justice, Strand, London WC2A 2LL, together with two copies and a fee of £70. Cheques should be made payable to HM Paymaster General. For the hearing of the appeal, the Court will require three paginated bundles comprising copies of :-

● an index
● the notice of motion
● the decision appealed
● any affidavits filed
● any other relevant documents

Date of hearing of appeal (O.55, r.5)
Unless the Court having jurisdiction to determine the appeal otherwise directs, an appeal to which this Order applies shall not be heard sooner than 21 days after service of notice of the motion by which the appeal is brought.
55/5/1 Uncontested appeals - Where the parties are agreed as to the terms on which an appeal can be disposed of and require an order of the Court to put them into effect the practice described in Practice Direction (Crown Office List: Uncontested Proceedings) [1982] 1 W.L.R. 979 should be followed.
Amendment of grounds of appeal, etc. (O.55, r.6)
The notice of the motion by which an appeal to which this Order applies is brought may be amended by the appellant, without leave, by supplementary notice served not less than 7 days before the day appointed for the hearing of the appeal, on each of the persons on whom the notice to be amended was served.
Within 2 days after service of a supplementary notice under paragraph 1 the appellant must lodge two copies in the office in which the appeal is entered.
Except with the leave of the Court hearing any such appeal, no grounds other than those stated in the notice of the motion by which the appeal is brought or any supplementary notice under paragraph 1 may be relied upon by the appellant at the hearing; but the Court may amend the grounds so stated or make any other order, on such terms as it thinks just, to ensure the determination on the merits of the real question in controversy between the parties.
The foregoing provisions of this rule are without prejudice to the powers of the Court under Order 20.
55/6
1. The notice of the motion by which an appeal to which this Order applies is brought may be amended by the appellant, without leave, by supplementary notice served not less than 7 days before the day appointed for the hearing of the appeal, on each of the persons on whom the notice to be amended was served.
2. Within 2 days after service of a supplementary notice under paragraph 1 the appellant must lodge two copies in the office in which the appeal is entered.
3. Except with the leave of the Court hearing any such appeal, no grounds other than those stated in the notice of the motion by which the appeal is brought or any supplementary notice under paragraph 1 may be relied upon by the appellant at the hearing; but the Court may amend the grounds so stated or make any other order, on such terms as it thinks just, to ensure the determination on the merits of the real question in controversy between the parties.
4. The foregoing provisions of this rule are without prejudice to the powers of the Court under Order 20.
Interlocutory applications (O.55, r.6A)
1. Unless the Court otherwise directs, any interlocutory application in proceedings to which this Order applies may be made to any Judge or a Master of the Queen's Bench Division or, as the case may be, any Judge or a Registrar of the Family Division, notwithstanding that the appeal has been brought by motion and is to be heard by a Divisional Court.
2. In this paragraph "interlocutory application" includes an application for the extension of time for the service of the notice of motion or the entry of the appeal or for the amendment of the notice of motion.
3. In relation to an order made by a Master of Registrar pursuant to paragraph 1, Order 58, rule 1 shall, where the appeal is to be heard by a Divisional Court, have effect as if a reference to that Court were substituted for the reference to a Judge in chambers.
4. This rule is without prejudice to any statutory provision or rule of law restricting the making of an order against the Crown.

Added by R.S.C. (Amendment) 1987 (SI 1987 No.1423).
Powers of Court hearing appeal (O.55, r.7)

1. In addition to the power conferred by rule 6(3) the Court hearing an appeal to which this Order applies shall have the powers conferred by the following provisions of this rule.
2. The Court shall have power to receive further evidence on questions of fact, and the evidence may be given in such manner as the Court may direct either by oral examination in Court, by affidavit, by deposition taken before an examiner or in some other manner.
3. The Court shall have power to draw any inferences of fact which might have been drawn in the proceedings out of which the appeal arose.
4. It shall be the duty of the appellant to apply to the Judge or other person presiding at the proceedings in which the decision appealed against was given for a signed copy of any note made by him of the proceedings and to furnish that copy for the use of the Court; and in default of production of such a note, or if such note is incomplete, in addition to such note, the Court may hear and determine the appeal on any other evidence or statement of what occurred in those proceedings as appears to the Court to be sufficient.

Except where the Court otherwise directs, an affidavit or note by a person present at the proceedings shall not be used in evidence under this paragraph unless it was previously submitted to the person presiding at the proceedings for his comments.
5. The Court may give any judgment or decision or make any order which ought to have been given or made by the Court, tribunal or person and make such further or other order as the case may require or may remit the matter with the opinion of the Court for rehearing and determination by it or him.
6. The Court may, in special circumstances, order that such security shall be given for the costs of the appeal as may be just.
7. The Court shall not be bound to allow the appeal on the ground merely of misdirection, or of the improper admission or rejection of the evidence, unless in the opinion of the Court substantial wrong or miscarriage has been thereby occasioned.
Amended, R.S.C. (Amendment No.1) 1968 (SI 1968 No.1244).
55/71 Power of Court to receive further evidence r.7(2) - In Smith v Pharmaceutical Society of Great Britain C.O. 1065/85, December 10, 1986: (unrep.), the Divisional Court declined to receive evidence as to the conduct of the appellant since the hearing before the Statutory Committee because it could not be relevant to the decision of the Committee which was made in the light of the evidence before it. However in Hefferon v Committee of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting, The Independent, March 11, 1988, the Divisional Court applying Stock v Central Midwives Board [1915] 3 K.B. 756 received further evidence from an expert witness as to the effect which an inoculation administered in error might have since that had been an issue at the hearing. "Where there has been an opinion expressed or an assertion of relevant fact made in the course of that hearing, as revealed in the transcript of evidence given, in my judgment, it is competent for this Court to receive in its discretion fresh evidence going to that expression of opinion or that assertion of fact," per Watkins L.J.
The power to receive further evidence may be disapplied by operation of some other rule, see for example O.101, r,4(6) which governs appeals under the Pensions Appeal Tribunal Act 1943, and which was considered by Drake J. in Rivett v Secretary for Social Services [1990] C.O.D.479.
In relation to an appeal under s.289 of the Town and Planning Act 1990, which is on a point of law, the High Court should not receive evidence unless it is argued that the inspector had not properly summarised, or had disregarded, some material evidence. Clarke v Secretary of State for the Home Environment [1993] C.O.D. 80, {Fox, Glidewell L.JJ. and Boreham J., C.A.}.
As to the exercise of the Court's discretion under r.7(7) see Botton v Secretary of State for the Environment and the London Borough of Bromley [1992] C.O.D. 249 {Roch J.} and P G Vallance Ltd v Secretary of State for the Environment. The Independent. November 19, 1992 {Henry J.}.
55/7/2 Other powers of Court - In considering the provisions of O.55 r.7(7), in a case involving an allegation of dishonesty, it was appropriate to apply the test for deciding whether to invoke the proviso to s.2 of the Criminal Appeal Act 1968, namely whether the disciplinary committee must inevitably have found the dishonesty proved: per Simon Brown J. in Crabtree v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [1990] C.O.D.277.
In an appeal against a decision of the Statutory Committee of the Royal Pharmaceutical Society, the function of the Court was not to impose its own view in substitution for the Committee's view unless it concluded that the Committee's decision was plainly wrong or that the Committee had misdirected itself in reaching its conclusion: Thobani v Pharmaceutical Society of Great Britain [1990] C.O.D.279 {Watkins L.J. and Nolan J.}.
Right of Minister, etc, to appear and be heard (O.55, r.8)

Where an appeal to which this Order applies is against an order, determination or other decision of a Minister of the Crown or government department, the Minister or department, as the case may be, shall be entitled to appear and be heard in the proceedings on the appeal.

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