Sri Lanka’s legal system is based on the common law and follows an adversarial model.
However, recent amendments to the Civil Procedure Code permit judges to participate more in pre-trial proceedings, including by assisting parties to arrive at an adjustment, settlement, compromise or other agreement in respect of the matter at issue or to ascertain and record any matters which would contribute to the efficacious disposal of the matter.
The legal process is conducted both through oral argument and written submissions unless parties specifically request for and agree on either.
The Sri Lanka district courts are the courts of first instance under the civil court system. The area over which the respective district courts exercise jurisdiction is determined by the minister in charge of the administration of justice, law and order and is published in the Gazette.
The district courts have jurisdiction in all civil revenue, trust, matrimonial, insolvency and testamentary matters and in commercial transactions where the debt, damage or demand is less than LKR20 million. The district courts also have jurisdiction to determine suits and actions where:
An appeal against an order or judgment of the district court will be referred to the respective High Court of Civil Appeals and any appeal against this court will be determined by the Supreme Court.
Certain functions of the district courts have been delegated by statute to the high courts of the province exercising civil jurisdiction, which are considered to be the courts of original jurisdiction. The first high court of this kind to be established was the Commercial High Court. This court has jurisdiction to hear and determine all matters where the cause of action has arisen out of commercial transactions (including those relating to banking, the export or import of merchandise, services affreightment, insurance, mercantile agency, mercantile usage and the construction of any mercantile document) in which the debt, damage or demand exceeds LKR20 million. This court is also vested with the jurisdiction to hear matters instituted under:
An appeal against an order or judgment issued by a high court will be determined by the Supreme Court.
A single judge sits in each division of the courts of first instance and the high courts. Appeals are heard by a two-judge bench before the High Court of Civil Appeals and by a three-judge bench before the Supreme Court. With the permission of the chief justice, appeals to the Supreme Court may be heard before a five-judge, seven-judge or nine-judge bench.
Court filings and proceedings are open to the public. Copies of Court records may be obtained by paying a fee to the court registry. However, upon request of a party and if there are circumstances warranting the same, a Judge may direct that filings and proceedings are kept confidential.
Only attorneys-at-law called to the bar by the Supreme Court of Sri Lanka are permitted to appear before Courts. Foreign counsel are not permitted to conduct cases in Courts.
There are no legal provisions dealing with third-party funding. There have also been no publicised cases relating to third party funding. The Supreme Court Rules prohibit champerty and, based thereon, it is possible to imply that third-party funding is not permissible.
This is not applicable in our jurisdiction.
This is not applicable in our jurisdiction.
This is not applicable in our jurisdiction.
This is not applicable in our jurisdiction.
Contingency fee agreements are not permitted under the Code of Conduct of and Etiquette for Attorneys-at-law, as set out in the Supreme Court Rules.
This is not applicable in our jurisdiction.
As a general rule, there are no pre-action considerations. However, certain types of action require statutorily stipulated steps to be followed. If such steps are not followed, the action may be dismissed.
For example, in an application for a company to be wound up by court order under the Companies Act 07/2007, on the basis that the company is unable to pay its debts, the court will deem the company unable to pay its debts after the creditor has served a formal demand on the company and the company has, for three weeks from the date of service, neglected to make payment of, secure or compound the debt to the satisfaction of the creditor.
A potential defendant is not required to respond to a pre-action letter. However, failure to do so may have a negative impact upon any bona fide defence raised during the proceedings.
The Prescription Ordinance provides time limitations in respect of civil suits. Claims in respect of written agreements, bills of exchange and promissory notes must be brought within six years from the date of breach or the date on which the payment of such bills or notes were due. Claims based on unwritten agreements or unwritten security must be brought within three years from the date on which the cause of action arose. Claims based on the exchange of goods or services must be brought within one year after the debt becomes due and claims for damages within two years from the cause of action arising.
For such claims, Section 12 of the Prescription Ordinance provides that where an acknowledgement of debt is made in writing, the prescription period for the debt runs afresh from the date of acknowledgement. Even in instances where the expiry of the prescription period provided in the ordinance, the ability to sue on such acknowledgement arises afresh (ie, from the date on which the acknowledgement is made).
Further, agreements not to plead limitation and agreements not to sue are recognised in Sri Lanka as enforceable contracts. Such agreements may be treated as an acknowledgment fulfilling the requirements of Section 12 of the Prescription Ordinance.
The jurisdictional requirements for a defendant to be subject to a civil suit before Courts of First Instance are that the defendant must reside within the jurisdiction of Court, the contract sought to be enforced must have been entered into within the jurisdiction of Court, the cause of action claimed must have arisen within the jurisdiction of Court, or the land which is the subject matter of the action must be wholly or partially situated within the jurisdiction of Court.
A lawsuit is initiated by the filing of a duly stamped written plaint or petition in the court registry. The said plaint or petition must describe the names, descriptions and places of residence of the parties insofar as can be ascertained, a concise statement in numbered paragraphs of the circumstances constituting each cause of action and where and when it arose and a demand of the relief claimed by the plaintiff including any relinquishment of the claim or any set off.
The procedure for informing an adversary that it has been sued is by the service of summons by court which may either be by registered post or by personal service through the fiscal of court. The summons will contain a copy of the plaint and all annexed documents and the defendant will be required to appear in court on a specified date to file an answer to the plaint. If summons cannot be served through the fiscal of court or by registered post, court will direct substituted service to be effected, ie, the affixation of summons to a conspicuous place of the residence of an individual or, in the case of a corporation or unincorporated entity, to the usual place of business or office of such entity.
Service is the responsibility of court, although the plaintiff is required to furnish court with the details necessary for court to effect service.
The Mutual Assistance in Civil and Commercial Matters Act No 39 of 2000 provides for a party to be sued outside the jurisdiction of court. The mechanism for doing that is for the central authority in Sri Lanka (ie, the secretary of the Ministry of Justice) to make a request to the appropriate authority of a state specified under the Act to assist in the service of summons out of Sri Lanka. Where such a request is accepted, the appropriate authority of the respective state will send a duly authenticated report of service to the central authority in Sri Lanka, pursuant to which summons will be deemed to have been served out of jurisdiction.
If the defendant does not respond to a lawsuit, the case will proceed ex parte against the defendant. Court will determine the claim based on the evidence produced by the plaintiff.
Class actions are permitted in Sri Lanka and are generally brought in respect of actions for the violation of fundamental rights. Class actions have also been instituted by trade unions in labour-related disputes.
There are no requirements to provide clients with a cost estimate of the potential litigation at the outset.
It is possible to make applications for interim relief before trial or the substantive hearing of a case. Such applications are not limited to case management issues and are generally made to maintain the status quo or to preserve the rights of the plaintiff pending final determination of the claim.
Interim remedies are granted to prevent the commission or continuation of an act or nuisance in breach of an entitlement or right of a plaintiff and, where a defendant during the pendency of an action threatens or is about to remove or dispose of property with the intent to defraud the plaintiff, preventing the removal or disposal of such property. Interim freezing orders are available, as are interim orders for the sequestration of property.
If the defendant raises a preliminary objection regarding an issue of law which, if decided in favour of the defendant, would bar the claim, such issue will be tried and decided as a preliminary issue and, if successful, the plaintiff’s case will be dismissed.
Such a preliminary objection has to be raised at the earliest possible opportunity. Inquiry is by way of written submissions or oral argument or, if the parties so agree, by both such methods, after which an order will be delivered.
Dispositive Motions are no provided for under the procedural law.
All parties must be named as plaintiffs or defendants in a lawsuit. However, with the permission of court, one or more of such parties may sue or defend on behalf of all parties so interested. Parties may also be added or intervene in an action, with the permission of court.
A defendant can apply for an order that the plaintiff must deposit in court a sum of money as security for any costs incurred by reason of any interim order obtained by the plaintiff against the defendant. Generally, a defendant cannot apply for legal costs to be deposited prior to the final determination of the claim.
Court may exercise discretion in determining whether interim orders will be granted subject to costs being deposited by the party in whose favour the interim order is made. Generally, court requires the party in whose favour the interim order is made to deposit security sufficient to cover any loss that may be incurred by the party against whom the interim order is made, in the event final determination of the claim is in favour of the said party.
The timeframe for determination of an application/motion will depend on the nature of the application. A party may request that the application/motion be dealt with on an urgent basis.
Discovery of documents is available in civil cases. At the application of any party to the action, court may order a party to the action to declare specified documents. Discovery is administered by court and may include the production of documents or the taking of witness evidence or both.
The discovery process may be curbed if the party ordered by court to make a declaration satisfied court that such discovery should not be made.
In terms of procedural law, discovery is only for parties to the action. However, generally, if a third party has been listed as a witness for the purpose of producing a document in his possession, court will issue summons on such person to appear in court and produce the document.
There are no detailed rules governing disclosure apart from the rules set out above.
Although discovery of documents is provided for, prior to trial, both parties file lists of documents and they are entitled to produce the documents referred to in such lists during the trial.
The concept of legal privilege is recognised in Sri Lanka. The Evidence Ordinance prohibits an attorney to disclose, without the express consent of their client, any communication made to them in the course of, and for the purpose of, their employment or to state the contents or conditions of any document with which they have been made acquainted in the course of, and for the purpose of, their employment or to disclose any advice given by them to their client in the course of and for the purpose of such employment. This provision applies to interpreters, clerks and assistants of attorneys as well. Information relating to a crime or fraud will not be protected.
In addition, unpublished official records relating to affairs of state are not permissible as evidence except with the consent of the head of the department concerned. Similarly, public officers cannot be compelled to give evidence in respect of official communications.
There is no distinction between external and in-house counsel.
A party may, for reasons given to the satisfaction of court and with the permission of court, not disclose a document.
Injunctive relief is granted, to prevent the commission or continuation of an act or nuisance which would cause injury to a plaintiff or which would breach an entitlement or right of a plaintiff and, where a defendant during the pendency of an action threatens or is about to remove or dispose of property with the intent to defraud the plaintiff, to prevent the removal or disposal of such property.
An application for injunctive relief must be made by petition and accompanied by an affidavit from the plaintiff or another person who has sufficient knowledge of the facts averred in the petition. An order will be made in favour of the plaintiff if court is satisfied that sufficient grounds exist for granting the relief sought.
Injunctive relief may be obtained within the course of a working day, if circumstances are urgent. During court vacation, which is for approximately a week in the months of April, August and December respectively, a judge is available on specified days to hear such urgent applications.
Injunctive relief can be obtained on an ex parte basis. Generally, such injunctive orders obtained ex parte will only be operative for a limited period of time (ie, 14 days), until the party against whom such order is made is notified thereof and the matter proceeds to an inter parte inquiry.
The applicant can be held liable for damages suffered by the respondent, if the respondent successfully discharges the injunction later. At the time of granting the injunction, it is discretionary for the judge to decide whether to make the operation of the injunction subject to the deposit of security by the application, to cover any potential loss suffered by the respondent.
There is no specific prohibition on injunctive relief being granted against worldwide assets of the respondent. However, there is no express provisions dealing with enforcement of such orders.
Injunctive relief can only be obtained against parties to an action.
If a respondent fails to comply with an injunction, an application can be made for court to determine that the respondent is in contempt of court. If a respondent is held to be in contempt, such respondent is liable to a fine and/or imprisonment.
Evidence is usually presented orally through witnesses, including expert witnesses. On application, parties can submit evidence in chief by way of an affidavit of a witness. The witness will then be cross-examined on the contents of the affidavit.
Hearing that are made on interim motions or applications, can be supported by the applicant. It is at the discretion of court whether to have an inquiry into the matter or to determine the matter on oral evidence alone. After a defendant has appeared in an action, all such applications must be determined inter parte.
After the filing of initial pleadings, a date for pre-trial is fixed. This is essentially a case management hearing where parties will inform court of the witness and documentary evidence they seek to rely on. At this stage, court will record the admissions and issues of parties and fix a date/dates for trial in respect of the issues recorded.
Trial by jury is not provided for in civil proceedings.
The Evidence Ordinance governs the production of evidence. Evidence is usually presented orally through witnesses, including expert witnesses. On application, parties can submit in chief by way of an affidavit of a witness. The witness will then be cross-examined on the contents of the affidavit.
Expert evidence is permitted at trial and is generally in the form of an affidavit or witness statement. However, court may direct that such affidavits or witness statements are filed in court with notice to other parties before trial. In such instances, the documents must be formally read into the record on the subsequent date of trial.
Hearing are open to the public and transcripts of hearings may be obtained upon payment of a fee. In certain circumstances, court may direct hearing to be inaccessible to the public.
As Sri Lanka is a common law jurisdiction, the role of the judge in civil proceedings is strictly adversarial. However, recent amendments to the Civil Procedure Code permit judges to participate more at pre-trial proceedings, including by assisting parties to arrive at an adjustment, settlement, compromise or other agreement in respect of the matter at issue or to ascertain and record any matters which would contribute to the efficacious disposal of the matter.
It is at the discretion of the Judge whether to pronounce orders or judgments at the hearing itself or to reserve judgment for a later date. Apart from urgent interim applications, a judge will generally reserve judgment or order. After a trial, it is the general practice that final written submissions will be filed by parties for the consideration of the judge before judgment is pronounced.
After a plaintiff files a claim and the defendant appears in court, the defendant is required to file an answer and the plaintiff is required to file a replication to any counter-claim made by the defendant. The filing of all pleadings takes approximately six to 12 months from the commencement of the case.
A date for pre-trial will be fixed within two months of the application. The trial will take place following the conclusion of the pre-trial hearing. Unless required by special circumstances (eg, the calling of foreign witnesses), the trial is not fixed to consecutive dates. Therefore, depending on the number of witnesses called and the volume of documents submitted as evidence, the trial may proceed over a period of two to four years.
After the trial, the parties are required to file written submissions and the matter is then fixed for judgment. A judgment will generally be delivered within four to six months after the trial is concluded.
Court approval is not required to settle a lawsuit. Parties are free to settle a matter out of court, subsequent to which the plaintiff and the defendant will withdrawn the claim and any cross claims respectively.
However, settlement agreements entered into out of court cannot be enforced in the same manner as a settlement recorded in court; instead, such a settlement agreement will be enforced as a written contract.
There is no express provision of the settlement of a lawsuit to remain confidential. At the request of parties, court may direct that the case record be kept confidential.
Settlement agreements entered into in court can be enforced by court as per the terms for breach thereof stated in such agreements, or in terms of the procedure for contempt of court. Settlement agreements entered into out of court are enforced as separate contracts.
There is no provision for setting aside settlement agreements. It will be at the discretion of court to determine the procedure in respect of the same.
The substantive remedies in civil proceedings seek to compensate the plaintiff for any loss and damage suffered. Therefore, the forms of remedies available include decrees of court to:
Interest is payable on a money judgment if so decreed.
Punitive damages are not available; however, the court may decree that taxed costs are awarded to the judgment creditor. Such costs will be assessed by the court registrar.
A successful party may collect interest based on the period before judgment is entered if the judgment specifically awards such interest. Pre-judgment interest accrues on the parameters in which it is awarded in the judgment. This is generally in terms of the contract sued upon.
A party may collect interest accruing after judgment is entered, generally until the date on which the principal amount is paid, provided that the judgment specifically awards the same. Post-judgment interest accrues on the parameters in which it is awarded in the judgment.
There are no statutory limits to the award of pre- and/or post-judgment interest; however, the Civil Law Ordinance provides that interest cannot exceed the principle amount awarded.
Assets of a judgment-debtor can be seized by the courts and sold to satisfy the required payment. The bank accounts of the judgment-debtor, if known to the judgment-creditor, can be frozen by the court in satisfaction of the judgment debt following application. The refusal to obey a court order could also result in a prosecution for contempt of court.
The Reciprocal Enforcement of Foreign Judgments Ordinance 41/1921 outlines the procedure relating to the recognition and enforcement of foreign judgments. The ordinance provides for the enforcement of judgments obtained in the superior courts of the United Kingdom, defined as the High Court of England or Northern Ireland or the Court of Session of Scotland. In addition, judgments obtained in superior courts of other parts of Her Majesty’s Realms and Territories, which are set out in the schedule to the ordinance or recognised by the minister of justice and declared by the Gazette as being extraordinary subsequent to the release of the ordinance, are enforceable.
At present, the states recognised under the ordinance include Hong Kong, Malaysia, Mauritius, New South Wales (Australia), New Zealand, Queensland (Australia), South Australia, Tasmania, the Trust Territory of New Guinea, Uganda, Victoria (Australia) and Western Australia.
Foreign judgments may be registered and enforced in Sri Lanka only if they originate from these states. A judgment originating from a court in any other state cannot be registered and enforced in the country.
Appeals can be referred against errors of law. An appeal referred to the High Court of Civil Appeals against an order or judgment of a district court may be further appealed to the Supreme Court only if leave from the Supreme Court is obtained first.
Appeals against a high court decision are made to the Supreme Court. The mode of appeal (ie, whether directly or with leave first obtained) will depend on the finality of the decision being challenged. Where the decision being appealed finally disposes of the rights and liabilities of the parties, it will be considered to be a final order, against which an appeal will lie without the requirement of leave being obtained. In all other cases (ie, where the decision does not finally dispose of the rights and liabilities of the parties), an appeal may be referred to the Supreme Court only if leave from the Supreme Court is obtained first.
The Civil Procedure Code, the Supreme Court Rules and other statutes provide for circumstances in which an appeal may be preferred.
An application against an interim order must be preferred within 14 days of the said order to the superior court. An Appeal against a final order or judgment must be preferred within 60 days of the said order or judgment to the superior court, with a notice of appeal having being filed within 14 days from the date of the said order or judgment.
The appeal court will consider issues of law arising from the order or judgment appealed against. New evidence may not be submitted although the appeal court may reconsider and evaluate the evidence produced before the court of first instance.
There is no provision for court to impose any conditions on granting an appeal.
There are no provisions regarding the powers of an appellate court after the hearing of an appeal.
Each party is liable for its costs of litigation including court fees, expenses and attorneys’ fees. If costs are awarded at the conclusion of the case against a specified party, a bill of costs will be submitted by the judgment-creditor and the court registrar will determine the amount payable in accordance with statutorily specified amounts. There is no mechanism for challenging the amount of costs to be paid as this is specified in a gazette.
In specific situations (eg, when injunctive relief is sought), a deposit of security may be ordered from the plaintiff for any costs that may be incurred by the defendant as a result of the relief sought being granted. The security is deposited in court and will be returned to the plaintiff if the action is successful.
The award of costs is largely discretionary; however, court will consider the relative merits of the action and the defence and the conduct of parties, when determining costs.
Generally, interest is not awarded on costs.
Over the last decade, alternative dispute resolution (ADR), and particularly arbitration, have become increasingly popular within Sri Lanka, being viewed as more expedient and cost effective means of dispute resolution. With the influx of investment into the infrastructure sector and the use of standard forms of contracts has resulted in arbitration becoming an almost exclusive form of dispute resolution for all construction disputes.
Arbitration is the leading form of ADR found within Sri Lanka. The Arbitration Act No 11 of 1995 is the statute which governs arbitral proceedings, the enforcement and setting aside of arbitral awards, and any arbitration related matters. The Act seeks to give effect to party autonomy by removing the jurisdiction of local courts from hearing disputes covered by an arbitration agreement, however this is only limited circumstances where one party to such arbitration agreement objects to courts exercising such jurisdiction. Sri Lankan Courts are generally viewed as arbitration friendly, whereby the intervention of Courts in arbitral proceedings is limited by the Act and only arises in very specific circumstances and only upon the application of a party. The insurance industry and the construction and infrastructure industry are two of the biggest users of the arbitration framework.
At present, the Mediation Boards Act No 72 of 1988 provides for the establishment of Mediation Boards. These boards comprising of retired judges of the superior courts of Sri Lanka were created for the speedily resolution of disputes valued under LKR500,000. This mandatory system requires all disputes valued under LKR500,000 to proceed through a mediation process, prior to which litigation proceedings cannot be instituted. If parties fail to reach an amicable settlement through mediation, then a certificate confirming that no such settlement was reached is required prior to commencing litigation proceedings. More recently, the Commercial Mediation Centre of Sri Lanka Act No 44 of 2000 established The Commercial Mediation Centre of Sri Lanka (CMCSL) an organisation which is statutorily mandated to promote the wider acceptance of mediation and conciliation for the resolution and settlement of commercial disputes.
The Institute of Commercial Law & Practice (ICLP) is the only arbitration institution in Sri Lanka which administers arbitrations under its own set of Rules. In 2018, the Ceylon Chamber of Commerce (CCC), in partnership with the ICLP, launched the CCC-ICLP Alternative Dispute Resolution (ADR) Centre. This Centre will consist of a fully-trained panel of arbitrators and mediators who will function to deal with commercial dispute resolution and also administer a set of arbitration rules to be launched thereby.
The Sri Lanka National Arbitration Centre (SLNAC) administers ad-hoc arbitrations in Sri Lanka. Whilst the SLNAC does not have its own set of rules, it acts as a centre which facilitates arbitration by providing hearing facilities and arranging logistical support for arbitral proceedings.
The Arbitration Act provides for the conduct of all arbitration proceedings commenced in Sri Lanka as well as the enforcement of foreign arbitral awards. Sri Lanka does not have separate statutes which govern domestic and foreign arbitration, both these are encompassed in the Arbitration Act.
In the context of domestic arbitrations, the Arbitration Act not only provides a draft framework of rules which can be followed in ad-hoc arbitrations but it also acts a filler where there is a lacuna within institutional rules. Thus, in most aspects of the arbitral proceedings, such as in the constitution and appointment of the tribunal, the decision on the place of arbitration, the power of a tribunal to deliberate on its competence, the rules on the conduct of the proceedings, the act provides for the party autonomy to prevail. The conduct of arbitral proceedings are left largely to the agreement of the parties, provided that it does not contravene the mandatory provisions of the Arbitration Act.
The Act also provides a limited number of circumstances in which decisions of an arbitral tribunal may be appealed to the local courts (the relevant courts exercising jurisdiction under the Arbitration Act being the High Court of Sri Lanka, currently Holden in Colombo), such as a party being dissatisfied with a decision of the arbitral tribunal on the challenge of an arbitrator.
In addition thereto the Arbitration Act also empowers court to assist an arbitral tribunal in conducting arbitral proceedings, by for example enforcing an order of the tribunal providing interim measures of protection, assisting the tribunal in summoning witnesses to appear in arbitral proceedings, etc.
Section 4 of the Arbitration Act provides that any disputes which falls within the ambit of an arbitration agreement may be determined by arbitration, unless the matter in respect of which the arbitration agreement is entered into is contrary to public policy, or is not capable of determination by arbitration.
Sri Lankan Courts have interpreted the aforesaid section and determined that labour disputes and certain matters governed under the Companies Act No 07 of 2007, such as oppression and mismanagement suits and winding-up proceedings are not capable of determination by arbitration. However, it is also likely that matters governed under the Intellectual Property Act No 36 of 2003 will receive such judicial treatment.
Sri Lanka being a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and being Model Law compliant does not allow parties with a right of appeal from an arbitral award. Rather, a party seeking to set aside an arbitral award made in Sri Lanka, may do so under the provisions of Section 32 of the Arbitration Act, to the High Court, within sixty days of the receipt of the award.
The grounds for setting aside an arbitral award are mirrored from the grounds set out in Article V of the New York Convention and can be broadly broken up into two categories, firstly where the party objecting to the enforcement furnishes proof relating to limited aspects of procedural impropriety as specified therein in, and secondly where Court finds that subject matter of the dispute is not capable of settlement by arbitration or where the recognition or enforcement of the arbitral award would be contrary to public policy.
A decision of the High Court may be challenged vis-à-vis an application made to the Supreme Court, however with leave of the Supreme Court first obtained.
Under and in terms of the Arbitration Act a foreign arbitral award will be recognised as binding and be enforced in accordance with the Arbitration Act, irrespective of the country in which it was made.
The procedure for the enforcement of both domestic and foreign arbitral award are identical and set out in Part VII of the Arbitration Act.
The application for the enforcement of an arbitral award must be made with one year after the expiry of fourteen days from the making of the award. Such application must be accompanied by an original or duly certified copy of the award and the original or duly certified copy of the arbitration agreement. The term duly certified has been defined as either being certified by the tribunal or a member of the tribunal or otherwise to the satisfaction of court. Any of the aforesaid documents which are not in the official language of Court (being Sinhala or Tamil) or in the English language, shall be accompanied by a translation in the language of Court or the English language.
In the context of a domestic arbitration, where an application to enforce an award and an application set aside the same award is before the High Court, both such applications shall be consolidated.
Aside from the aforesaid there are no other formal procedural requirements relating to the enforcement of arbitral awards.
The grounds for refusing to enforce an arbitral award are identical to those for setting aside an arbitral award.
A decision of the High Court may be challenged vis-à-vis an application made to the Supreme Court, however with leave of the Supreme Court first obtained.