A draft Court of Appeal Practice Note regarding legal tests on appeal

  1. This Practice Note takes effect from 10 June 2019.
  2. The Court will revisit the test on appeal in every case.
  3. Written submissions in all cases should address the Court on why the test on appeal should be changed.
  4. When advocating for a type of appeal, counsel should bring to the attention of the Court any contrary authority so that the Court can overrule said authority.
  5. The Court will change the test on appeal for any particular type of appeal not less than once every eighteen (18) months.
  6. Any appeals brought on the grounds that a lower court misapplied a test on appeal are themselves to be treated as an appeal against a discretion if filed in an odd-numbered month and as a general appeal if filed in an even-numbered month.
  7. Clause 6 is subject to Clause 5.
  8. There is a rebuttable presumption that, in any instance where Parliament has described an appeal as an appeal against a discretion, this is to be treated as conferring a right of general appeal.
  9. Appeals from the Court Martial Appeals Authority will be treated as general appeals, except in instances where a general appeals in which case they are appeals against a discretion.
  10. Advantages held by the first-instance judge will be emphasised or diminished as the justice of the case requires.

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