Appellant to leave copy of with the Court of Appeal. (c) The appellant shall, before the expiration of notice of appeal the time within which notice of appeal may be given, leave with the officer for the time being appointed for that purpose by the Court to which the appeal is brought (in these Rules referred to as the Court of Setting down Appeal), a copy of the notice of appeal, and the officer shall thereupon set down the appeal by entering it in the proper list. appeal. Court to sit with two or being either (d) The Court of Appeal shall be assisted by not more Assessors less than two Assessors, to be selected, in the discretion of the Court, having regard to the nature of each case, from either or both of the following classes: 1. Elder Brethren of the or 2. Selected from the list of Assessors of Formal Investigations. Court of Appeal to have power to add parties. Objection to parties on appeal. Proof of evi dence taken in 1. Elder Brethren of the Trinity House. 2. Persons approved from time to time by the Secretary of State as Assessors for the purpose of Formal Investigations into shipping casualties, under section 30 of the "Merchant Shipping Act, 1876," and sub-section 1 of section 3 of the "Shipping Casualties Investigations Act, 1879." The above sub-section applies also to re-hearings. See post, Rule VII., sub-sec. (b) page 210. (e) The Court of Appeal may, if it thinks fit, order any other person or persons, body or bodies, other than the parties served with the notice of appeal, to be added as a party or parties to the proceedings for the purposes of the appeal, on such terms with respect to costs and otherwise as to the Court of Appeal seems meet. The above sub-section applies also to re-hearings. See post, Rule VII., sub-section (b), page 210. (ƒ) Any party to the proceedings may object to the appearance on the appeal of any other party to the proceedings as unnecessary. The above sub-section applies also to re-hearings. See post, Rule VII., sub-section (b), page 210. (g) The evidence taken before the Judge from the Court below whose decision the appeal is brought shall be proved before the Court of Appeal by a copy of the notes of the Judge, or of the shorthand writer, clerk, secre tary, or other person authorised by him to take down the evidence, or by such other materials as the Court of Appeal thinks expedient; and a copy of the evidence, and of the report to the Board of Trade containing the decision from which the appeal is brought, and of the notice of the general grounds of the appeal, shall be left with the officer for the time being appointed for that purpose by the Court of Appeal before the appeal comes on for hearing. For the purpose of this rule, copies of the notes of the evidence, and of the report, shall be supplied to the appellant, on request, by the Judge or other person having charge thereof, on payment of the usual charge for copying. The above sub section applies also to re-hearings. See post, Rule VII., sub-sec. (b), page 210. Upon an appeal the Court will consider the evidence upon which the judgment of the Court below was based. The Arizona, L.R. 5 P.D., page 123. The Court of Appeal has refused to order that a copy of the shorthand writer's notes of the judgment of the Court below be delivered to the appellant. It has also held that the Court below is not bound by the reasons orally given when judgment is delivered, but may assign different reasons in its report to the Board of Trade, and that the Appellate Court will decide the case upon the evidence with such assistance as the report may afford. The Kestrel, 6 Prob. Div. 188; 45 L.T. N.S. 111. (h) The Court of Appeal shall have full power to receive further evidence on questions of fact, such evidence to be either by oral examination in Court, by affidavit, or by deposition taken before an Examiner or Commissioner. Evidence may also be given with special leave of the Court of Appeal as to matters which have occurred since the date of the decision from which the appeal is brought. Upon an appeal to the Court of Admiralty against the suspension of a master's certificate for setting and steering a particular course the appellants sought to call as additional witnesses, ships' captains of great experience in similar voyages, to prove that the practice invariably was to set the same course as the master had set in the case under appeal, and further to give scientific evidence as to the effect on the current in the locality of the prevalence of particular winds. Expert evidence. Power to order costs. The Court of Appeal held that in conformity with the practice of the Court of Admiralty the evidence in question could not be received, that it would lead to the greatest possible inconvenience, and would lengthen trials enormously, and that it was unnecessary, because the Court were assisted by Assessors who were in fact skilled experts capable of giving their judgment upon the matters sought to be established by the proposed witnesses. (The Kestrel, L.R. 6 Prob. Div. 182; 45 L.T. N.S. 111). The same principle was enunciated in another case and acted upon. The Mary and Rowland, unreported. It will be observed that under the above Rule the Court of Appeal has power to receive further evidence only on questions of fact, or to matters which have occurred since the date of the decision in the Court below. There is no provision for the reception of the evidence of experts, and this of itself might furnish a sufficient answer to an application for permission to produce such evidence. The above sub-section applies also to re-hearings. See post, Rule VII, sub-sec. (b), page 210. (i) The Court of Appeal shall have power to make such order as to the whole or any part of the costs of, and occasioned by the appeal as may seem just. The above sub-section applies also to re-hearings. post, Rule VII., sub-sec. (b), page 210. See The following rule has been laid down on this subject :— Where the action of the Court below in suspending the certificate proceeds on the invitation of the Board of Trade, the Court ought, where it is of opinion that the certificate has been improperly suspended, to give costs to the successful appellant, unless it should be of opinion that he has been guilty of such misconduct as rendered an Inquiry as to the suspension of the certificate reasonable. Where the appeal is unsuccessful, the appellant will as a rule be condemned in costs. The Arizona, L.R. 5 Prob. Div. 123. Notwithstanding this rule, in a case where an owner's appeal was dismissed on the ground of want of jurisdiction, no costs were ordered to be paid by either party. The Golden Sea, 7 Prob. Div. 194. The Board of Trade have been condemned to pay costs to a successful appellant in two cases. The Mary and Rowland, unreported. The Famenoth, 7. Prob. Div. 207. In a case where the appellant was unsuccessful but the Board was recommended to shorten the period of suspension, each party was ordered to bear his own costs. The Kestrel, 6 Prob. Div. 182. The Board of Trade has received costs from an unsuccessful appellant. The Golden Sea, 7 Prov. Div. 194. (i) Subject to the foregoing provisions of this Rule, every appeal shall be conducted under and in accordance with the general rules and regulations applicable to ordinary proceedings before the Court of Appeal to which it is brought, but there shall not be anything in the nature of pleadings, other than the notice of the general grounds of the appeal, except by special permission of the Court of Appeal. The above sub-section applies also to re-hearings. See post, Rule VII., sub-sec. (b), page 210. (k) On the conclusion of an appeal, the Court of Appeal shall send to the Board of Trade a report of the case, similar to that required to be sent by the Judge from whose decision the appeal is brought (a). The above sub-section applies also to re-hearings. See post, Rule VII., sub-sec. (b), page 210. RULE VII. 7. (a) Where the Board of Trade direct a hearing under section 2 of the "Shipping Casualties Investigations Act, 1879," they shall cause such reasonable notice to be given to the parties whom they consider to be affected by the re-hearing as the circumstances of the case may, in the opinion of the Board of Trade, permit. With reference to the provision in section 23, sub-section 6, of the Merchant Shipping Act Amendment Act, 1862 (†), that no certificate shall be cancelled or suspended under that section, unless a copy of the report or a statement of the case upon which the Investigation is ordered has been furnished to the owner of the certificate before the commencement of the Investigation, the question arises whether it is necessary, for the purpose of a re-hearing, again to serve a copy of the report or statement of the case upon a master, mate, or engineer who has been already furnished with it before the Investigation in the Court below. As to this it is to be observed that neither the Shipping Casualties Investigations Act, 1879, nor the rules thereunder, require, in terms, that the owner of a certificate shall be furnished with the old, or a new report, or statement of the case, before a re-hearing, as a condition precedent to the exercise of the Court's power to deal with (*) See ante, page 101. Sub-sections which apply to re-hearings as well as to appeals. such certificate. If, however, upon a re-hearing, it is intended to bring forward new and important evidence, it would be fair to give notice to the owner of the certificate of the purport or effect of such evidence. an (b) The provisions distinguished as (d), (e), (f), (g), (h), (i), (j), and (k) of the last foregoing Rule shall apply to a re-hearing as if it were appeal, and as if the Court or authority before whom the re-hearing takes place were the Court of Appeal ("). (*) The above Rules are dated 17 April, 1880. |