FILING OF APPEAL PAPERS ELECTRONICALLY IN CIVIL APPEALS
DURING THE COVID-19 PANDEMIC & RELATED MATTERS
1. Considerations of public health, as well as associated restrictions on travel and on the operation of the Court of Appeal Office, mean that there are likely to be difficulties in operating the current system of filing hard-copy books of appeal papers effectively or safely and the adoption of electronic filing for appeal papers is essential if the Court is to continue to operate during the Covid-19 Pandemic.
2. This Information Notice offers guidance and recommendations in relation to the electronic filing of appeal papers and for the preparation and delivery of electronic books of appeal in a manner which facilitates the hearing of appeals and in particular the hearing of appeals remotely. It is intended to operate prospectively i.e. to documents filed hereafter but that is without prejudice to the entitlement of the Court to direct parties to deliver electronic copies of documents previously filed in hard-copy form.
3. The Court may direct the delivery of some or all of the papers in a particular appeal in hard copy where it considers that is necessary for the purpose of properly dealing with that appeal. In particular, the Court may require the delivery of hard copies of the Core Book where that is practicable.
4. This Information Notice is relevant to civil appeals of all kinds in the Court of Appeal. It is intended to issue a Practice Direction on the subject of electronic filing in due course. In the meantime, it may be necessary to revise this guidance in light of changing circumstances, and having regard to the experience of the Court, and that of parties and practitioners, of how the arrangements contemplated by this Notice actually operate in practice. Litigants, practitioners and other interested persons should check the beta version of the Courts.ie website (http://beta.courts.ie/) to ensure that they have access to the latest version of this Information Notice. In addition, the Court may, as appears necessary, publish more detailed guidance, in the form of protocols or further information notices, on specific issues covered by this Notice.
5. The Court will, both through its Civil Users' Group and otherwise, continue to engage with practitioners in relation to the effective management of civil appeals during the Covid-19 Pandemic.
6. In establishing and putting into operation novel arrangements for the remote hearing of appeals, it is inevitable that difficulties and challenges will arise. The Court will be sympathetic to the technological and other difficulties experienced by others and expects that everyone involved will be constructive and flexible in their approach, working co-operatively toward the common objective of ensuring that the Court can, to the maximum extent practicable, continue to administer justice and operate fairly and efficiently during the Covid-19 Pandemic.
7. The guidance given by this Notice is intended to be applied flexibly. It is not intended to be unduly prescriptive but rather to identify the minimum requirements necessary to enable the Court to continue to operate effectively during the Covid-19 Pandemic.
8. Practice Direction CA/06, Submissions, books of appeal and authorities in Civil Appeals continues to apply to appeals.
Electronic Filing of Appeal Papers
9. It is desirable that all appeal papers should be filed by electronic delivery to the Court of Appeal Office.
10. Appeal papers being filed electronically should be delivered in PDF format.
11. Notices of Appeal, Respondents' Notices and submissions should also be delivered in Word format.
12. The filing party should notify the other party or parties to the appeal of the filing of documents and copies of the documents filed should be provided electronically to such party or parties without delay.
13. Unless otherwise directed or permitted by the Court of Appeal Office, or otherwise advised by this Notice or where directed by the Court, the means of submitting electronic documents to the Office is via e-mail at firstname.lastname@example.org. Where papers are delivered by alternative means, there will be no need to duplicate that delivery by emailing the papers to the Office.
14. It is anticipated that in most if not all appeals there ought to be no difficulty in filing notices of appeal, respondents' notices and submissions by email. The advice given in this Information Notice regarding the filing of documents and books by secure file transfer, secure data rooms or via a cloud server (or, exceptionally, by a memory stick) is intended to apply primarily to the filing of electronic books of appeal papers for the purpose of the substantive appeal hearing though it may also an appropriate means of filing books of papers for directions hearings and/or other interlocutory hearings.
15. Where the Office directs or permits, where the Court directs, or where the documents being filed exceed 10 Megabytes (MB), the filing party should submit the relevant appeal papers to the Office either by secure file transfer, via secure data rooms or via a cloud server. There are various commercially available secure file transfer tools (such as Mimecast), secure data rooms (such as HighQ or Collaborate) and cloud servers (such as iCloud, Google Drive, OneDrive, Dropbox or Box). The Court is open to the use of any appropriate technology, subject however to prior consultation with, and the approval of, the Court of Appeal Office and practitioners/parties should liaise with the Court of Appeal Office to agree appropriate arrangements.
16. In exceptional circumstances, the Court may, by prior arrangement, agree to receive electronic files by a memory stick.
17. The Court is also open, in principle, to the use of specialised document management platforms such as eCourts and TrialView but the use of any such platform in an appeal is subject to the prior approval of the Court.
18. A document is not filed until the transmission is received and acknowledged by the Court of Appeal Office, whatever time it is shown to have been sent. That applies also to documents shared electronically via a cloud server or other online platform. Such documents are not filed until the server link is received and the confirmation is provided that the contents of the shared file have been accessed and accepted. If the server link is broken, or otherwise does not permit the Office to access the documents concerned, the documents will not be regarded as having been filed. The Court of Appeal Office will, in such a situation, endeavour to bring the problem to the attention of the sender as soon as practicable. In every case, the Office will endeavour to provide same day acknowledgement of receipt in respect of filings made before 15.00 and next day acknowledgement in respect of filings made after 15.00. Where a party who has made a filing does not receive an acknowledgement of receipt from the Office by 15.00 on the following day, they should contact the Office to confirm its receipt.
19. Filings made after 15.00 and before 17.00 shall, for the purposes of compliance with any directions or order of the court, be deemed to have been made that day, notwithstanding that confirmation of receipt is not provided until the following day, provided that the email, electronic transmission or server link (as the case may be) is actually received in the Office before 17.00 on the day of sending.
20. The time of receipt of a transmission will be recorded electronically on the transmission as it is received.
21. A party filing a document or documents electronically is responsible for ensuring that the document is filed within any relevant time limits. In the event that a document(s) is blocked or delayed for any reason (such as where a file is quarantined or blocked by a firewall), any delay shall be the responsibility of the party filing that document.
22. Parties and (where applicable) their legal representatives must take all necessary steps (whether by encryption, password protection or otherwise) to ensure the confidentiality and security of any correspondence or documents of a confidential or sensitive nature being transmitted electronically pursuant to this Information Notice and they shall at all times be responsible for compliance with all applicable requirements of GDPR. Any document sharing platform or other application used to file and/or deliver documents pursuant to this Information Notice, must be GDPR compliant and appropriately secure and must be operated in such a way as to ensure appropriate confidentiality and security at all times.
23. If a document transmitted electronically requires urgent attention, the sender should always contact the Office by telephone or, if outside office hours, by email marked “Urgent”.
Format and delivery of electronic appeal papers for Court hearings
24. Electronic books of appeal papers should be prepared for use at Court hearings in accordance with the following provisions.
25. Parties are expected to co-operate constructively in the preparation of the electronic hearing books.
26. Subject to any different directions that may be given by the Court (including the President or any Judge nominated by the President in accordance with section 7A(6) of the Courts (Supplemental Provisions) Act 1961 (inserted by section 8 of the Court of Appeal Act 2014)) or by the Court of Appeal Office, the electronic books of documents for the substantive hearing of an appeal shall comprise the appeal books specified in paragraph 9 of the Practice Direction CA06.
27. For hearings other than the substantive appeal hearing (such as directions/case management hearings or other interlocutory hearings) the electronic book(s) of documents shall comprise such documents as may be directed by the Court (including the President or a Judge nominated by the President) or by the Court of Appeal Office. In default of such a direction, the electronic hearing book(s) should include (and only include) such documents as the parties reasonably consider to be necessary to provide to the Court for the purposes of the hearing.
28. Parties are expected to co-operate actively and constructively in agreeing the detailed contents of the electronic hearing books. The inclusion of unnecessary documents (including - but not limited to - unnecessary authorities) is likely to give rise to difficulties in downloading and/or accessing the electronic hearing books and should therefore be avoided. Electronic books should contain only documents and authorities that are essential to the hearing.
29. The electronic hearing books for an appeal should be organised as follows:
29.1 A Core Book, to be designated CA [X/Y] CORE (where CA X/Y is the record number of the appeal)
29.2 A Book of Pleadings, to be designated CA [X/Y] PLEAD.
29.3 A Book of Evidence, to be designated CA [X/Y] EVID
29.4 A Book containing any relevant supplementary material, to be designated CA [X/Y] SUPP.
29.5 A Book of Authorities, to be designated CA [X/Y] AUTHS.
30. With the exception of books of authorities, the documents to be contained in each electronic hearing book should be contained in a single PDF which should be indexed and sequentially paginated. Pagination should begin with the first page of the first document (i.e. including the index/table of contents) and should be continued throughout the entire series of documents. The electronic page number and the page number shown on each page should correspond precisely. Where practicable, the pagination should be automatically generated rather than added in manuscript. Page numbers should appear on the bottom of each page in the centre. New pagination should not be used for separate documents or folders within the single pdf. Where practicable, the index page should be hyperlinked to the pages or documents to which it refers. When referring to documents, counsel should refer to the page number (the number on the bottom of the page) in the relevant electronic hearing book.
31. 31.1 The electronic book of authorities may be organised and provided separately to the other electronic hearing books. Where practicable, the index page should be hyperlinked to the authorities contained in the book.
31.2. Where a case has been reported in the Irish Reports or the Irish Law Reports Monthly, such report is the only report of the case which should be included in the book of authorities. No unreported judgment or computer-generated copy should be included where a reported judgement is available.
31.3. Parties and practitioners are reminded that it is only necessary to include in the books of authorities those judgments which are likely to be referred to a significant extent in oral argument and/or which the Court will require to review in detail in deciding the appeal.. It is not necessary that authorities, extracts from which are merely referred to in written submissions (and in particular those which establish well-known principles with which the Court will be familiar), should be included in books of authorities. The inclusion of multiple authorities for the same proposition of law should be avoided.
31.4 Books of authorities should unless otherwise ordered be presented in the following format and sequence:
(I) Any relevant provisions of the Constitution;
(II) Any relevant provisions of the EU Treaties and/or secondary EU legislation;
(III) Any relevant Irish statutory provisions;
(IV) Irish authorities set out in chronological order;
(V) Any relevant decisions of the CJEU or General Court and any relevant Advocate General Opinions, set out in chronological order
(VII) Any international authorities relied on, organised by jurisdiction, and within such jurisdictions, set out in chronological order;
(VIII) Other Materials including extracts from text books and learned journals,
32. All documents in the electronic hearing books and in the electronic book of authorities should be in PDF format, A4 size. As is specified in more detail below, all documents should be searchable where possible.
33. The default display view size on all pages should be 100%. Where possible files should be converted from their original electronic formats rather than scanned (e.g. by saving a document in Word format as a PDF). Standard quality PDF outputs from most software applications will suffice. Compressed formats should be avoided. Where documents are being scanned a minimum resolution of 250dpi is required and ordinarily no more than 450dpi will be necessary. Where possible, scanned documents be subjected to a process of optical character recognition (OCR) to provide searchability and recognition functionality.
34. The following properties will significantly enhance the functionality of electronic hearing books and, where practicable, parties are requested that these should be provided for:
34.1 Books should be bookmarked in accordance with the index so that each individual document can be accessed directly by hypertext link both from the index page and from bookmarks on the left-hand side.
34.2 The Court would encourage the use of hypertext links within documents.
35. If electronic hearing books (whether for substantive appeal hearings, directions hearings or other interlocutory hearings), individually or cumulatively, exceed 10 MB they should be submitted by one of the methods specified in paragraph 15 above.
Court Fees & Duties
36. Arrangements are being put in place for the payment of court fees and duties electronically to the Court of Appeal Office and for the issuing by the Office of electronic receipts in respect of such payments. These arrangements will be notified separately by way of separate information notice.
Dated this 20th April 2020
President of the Court of Appeal