Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
S T A T U T O R Y I N S T R U M E N T S
1998 No. 3132 (L.17)
SUPREME COURT OF ENGLAND AND WALES COUNTY COURTS
The Civil Procedure Rules 1998
Made - - - - 10th December 1998
Laid before Parliament 17th December 1998
Coming into force - - 26th April 1999
The Civil Procedure Rule Committee, having power under section 2 of the Civil Procedure Act 1997(1) to make rules of court under section 1 of that Act, make the following rules which may be cited as the Civil Procedure Rules 1998—
PART 1 OVERRIDING OBJECTIVE
Contents of this Part
The overriding objective Rule 1.1
Application by the court of the overriding objective
Rule 1.2
Duty of the parties Rule 1.3
Court’s duty to manage cases Rule 1.4
The overriding objective
1.1. (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable— (a) ensuring that the parties are on an equal footing; (b) saving expense;
(1) 1997 c. 12.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
2
(c) dealing with the case in ways which are proportionate— (i) to the amount of money involved;
(ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and (e) allotting to it an appropriate share of the court’s resources, while taking into account the
need to allot resources to other cases.
Application by the court of the overriding objective
1.2. The court must seek to give effect to the overriding objective when it— (a) exercises any power given to it by the Rules; or (b) interprets any rule.
Duty of the parties
1.3. The parties are required to help the court to further the overriding objective.
Court’s duty to manage cases
1.4. (1) The court must further the overriding objective by actively managing cases. (2) Active case management includes —
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings; (b) identifying the issues at an early stage; (c) deciding promptly which issues need full investigation and trial and accordingly disposing
summarily of the others; (d) deciding the order in which issues are to be resolved; (e) encouraging the parties to use an alternative dispute resolution(GL) procedure if the court
considers that appropriate and facilitating the use of such procedure; (f) helping the parties to settle the whole or part of the case; (g) fixing timetables or otherwise controlling the progress of the case; (h) considering whether the likely benefits of taking a particular step justify the cost of taking
it; (i) dealing with as many aspects of the case as it can on the same occasion; (j) dealing with the case without the parties needing to attend at court; (k) making use of technology; and (l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
3
PART 2 APPLICATION AND INTERPRETATION OF THE RULES
Contents of this Part
Application of the Rules Rule 2.1
The glossary Rule 2.2
Interpretation Rule 2.3
Power of judge, Master or district judge to perform functions of the court
Rule 2.4
Court staff Rule 2.5
Court documents to be sealed Rule 2.6
Court’s discretion as to where it deals with cases
Rule 2.7
Time Rule 2.8
Dates for compliance to be calendar dates and to include time of day
Rule 2.9
Meaning of “month” in judgments, etc. Rule 2.10
Time limits may be varied by parties Rule 2.11
Application of the Rules
2.1. (1) Subject to paragraph (2), these Rules apply to all proceedings in— (a) county courts; (b) the High Court; and (c) the Civil Division of the Court of Appeal.
(2) These Rules do not apply to proceedings of the kinds specified in the first column of the following Table (proceedings for which rules may be made under the enactments specified in the second column) except to the extent that they are applied to those proceedings by another enactment —
Proceedings Enactments 1. Insolvency proceedings Insolvency Act 1986(2), ss.411 and 412
2. Non-contentious or common form probate proceedings
Supreme Court Act 1981(3), s.127
3. Proceedings in the High Court when acting as a Prize Court
Prize Courts Act 1894(4), s.3
(2) 1986 c. 45. (3) 1981 c. 54. (4) 1894 c. 39.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
4
Proceedings Enactments 4. Proceedings before the judge within the
meaning of Part VII of the Mental Health Act 1983(5)
Mental Health Act 1983, s.106
5. Family proceedings Matrimonial and Family Proceedings Act 1984(6), s.40
The glossary
2.2. (1) The glossary at the end of these Rules is a guide to the meaning of certain legal expressions used in the Rules, but is not to be taken as giving those expressions any meaning in the Rules which they do not have in the law generally.
(2) Subject to paragraph (3), words in these Rules which are included in the glossary are followed by “(GL)”.
(3) The words ‘counterclaim’, ‘damages’, ‘practice form’ and ‘service’, which appear frequently in the Rules, are included in the glossary but are not followed by “(GL)”.
Interpretation
2.3. (1) In these Rules— “child” has the meaning given by rule 21.1(2); “claim for personal injuries” means proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person’s death, and “personal injuries” includes any disease and any impairment of a person’s physical or mental condition; “claimant” means a person who makes a claim; “CCR” is to be interpreted in accordance with Part 50; “court officer” means a member of the court staff; “defendant” means a person against whom a claim is made; “defendant’s home court” means— (a) if the claim is proceeding in a county court, the county court for the district in which the
defendant’s address for service, as shown on the defence, is situated; and (b) if the claim is proceeding in the High Court, the district registry for the district in which
the defendant’s address for service, as shown on the defence, is situated or, if there is no such district registry, the Royal Courts of Justice;
(Rule 6.5 provides for a party to give an address for service) “filing”, in relation to a document, means delivering it, by post or otherwise, to the court office; “judge” means, unless the context otherwise requires, a judge, Master or district judge or a person authorised to act as such; “jurisdiction” means, unless the context otherwise requires, England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales;
(5) 1983 c. 20. (6) 1984 c. 42. Section 40 was amended by the Courts and Legal Services Act 1990 (c. 41), Schedule 18, paragraph 50.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
5
“legal representative” means a barrister or a solicitor, solicitor’s employee or other authorised litigator (as defined in the Courts and Legal Services Act 1990(7)) who has been instructed to act for a party in relation to a claim; “litigation friend” has the meaning given by Part 21; “patient” has the meaning given by rule 21.1(2); “RSC” is to be interpreted in accordance with Part 50; “statement of case”— (a) means a claim form, particulars of claim where these are not included in a claim form,
defence, Part 20 claim, or reply to defence; and (b) includes any further information given in relation to them voluntarily or by court order
under rule 18.1; “statement of value” is to be interpreted in accordance with rule 16.3; “summary judgment” is to be interpreted in accordance with Part 24.
(2) A reference to a “specialist list” is a reference to a list(GL)that has been designated as such by a relevant practice direction.
(3) Where the context requires, a reference to “the court” means a reference to a particular county court, a district registry, or the Royal Courts of Justice.
Power of judge, Master or district judge to perform functions of the court
2.4. Where these Rules provide for the court to perform any act then, except where an enactment, rule or practice direction provides otherwise, that act may be performed—
(a) in relation to proceedings in the High Court, by any judge, Master or district judge of that Court; and
(b) in relation to proceedings in a county court, by any judge or district judge.
Court staff
2.5. (1) Where these Rules require or permit the court to perform an act of a formal or administrative character, that act may be performed by a court officer.
(2) A requirement that a court officer carry out any act at the request of a party is subject to the payment of any fee required by a Fees Order for the carrying out of that act.
(Rule 3.2 allows a court officer to refer to a judge before taking any step)
Court documents to be sealed
2.6. (1) The court must seal(GL) the following documents on issue— (a) the claim form; and (b) any other document which a rule or practice direction requires it to seal.
(2) The court may place the seal(GL) on the document— (a) by hand; or (b) by printing a facsimile of the seal on the document whether electronically or otherwise.
(3) A document purporting to bear the court’s seal(GL) shall be admissible in evidence without further proof.
(7) 1990 c. 41.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
6
Court’s discretion as to where it deals with cases
2.7. The court may deal with a case at any place that it considers appropriate.
Time
2.8. (1) This rule shows how to calculate any period of time for doing any act which is specified— (a) by these Rules; (b) by a practice direction; or (c) by a judgment or order of the court.
(2) A period of time expressed as a number of days shall be computed as clear days. (3) In this rule “clear days” means that in computing the number of days—
(a) the day on which the period begins; and (b) if the end of the period is defined by reference to an event, the day on which that event
occurs, are not included.
Examples (i) Notice of an application must be served at least 3 days before the hearing.
An application is to be heard on Friday 20 October. The last date for service is Monday 16 October.
(ii) The court is to fix a date for a hearing. The hearing must be at least 28 days after the date of notice. If the court gives notice of the date of the hearing on 1 October, the earliest date for the hearing is 30 October.
(iii) Particulars of claim must be served within 14 days of service of the claim form. The claim form is served on 2 October. The last day for service of the particulars of claim is 16 October.
(4) Where the specified period— (a) is 5 days or less; and (b) includes—
(i) a Saturday or Sunday; or (ii) a Bank Holiday, Christmas Day or Good Friday,
that day does not count. Example
Notice of an application must be served at least 3 days before the hearing. An application is to be heard on Monday 20 October. The last date for service is Tuesday 14 October.
(5) When the period specified— (a) by these Rules or a practice direction; or (b) by any judgment or court order,
for doing any act at the court office ends on a day on which the office is closed, that act shall be in time if done on the next day on which the court office is open.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
7
Dates for compliance to be calendar dates and to include time of day
2.9. (1) Where the court gives a judgment, order or direction which imposes a time limit for doing any act, the last date for compliance must, wherever practicable—
(a) be expressed as a calendar date; and (b) include the time of day by which the act must be done.
(2) Where the date by which an act must be done is inserted in any document, the date must, wherever practicable, be expressed as a calendar date.
Meaning of “month” in judgments, etc.
2.10. Where “month” occurs in any judgment, order, direction or other document, it means a calendar month.
Time limits may be varied by parties
2.11. Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.
(Rules 3.8 (sanctions have effect unless defaulting party obtains relief), 28.4 (variation of case management timetable—fast track) and 29.5 (variation of case management timetable—multi- track) provide for time limits that cannot be varied by agreement between the parties)
PART 3 THE COURT'S CASE MANAGEMENT POWERS
Contents of this Part
The court’s general powers of management Rule 3.1
Court officer’s power to refer to a judge Rule 3.2
Court’s power to make order of its own initiative
Rule 3.3
Power to strike out a statement of case Rule 3.4
Judgment without trial after striking out Rule 3.5
Setting aside judgment entered after striking out
Rule 3.6
Sanctions for non-payment of certain fees Rule 3.7
Sanctions have effect unless defaulting party obtains relief
Rule 3.8
Relief from sanctions Rule 3.9
General power of the court to rectify matters where there has been an error of procedure
Rule 3.10
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
8
The court’s general powers of management
3.1. (1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.
(2) Except where these Rules provide otherwise, the court may — (a) extend or shorten the time for compliance with any rule, practice direction or court order
(even if an application for extension is made after the time for compliance has expired); (b) adjourn or bring forward a hearing; (c) require a party or a party’s legal representative to attend the court; (d) hold a hearing and receive evidence by telephone or by using any other method of direct
oral communication; (e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate
proceedings; (f) stay(GL) the whole or part of any proceedings or judgment either generally or until a
specified date or event; (g) consolidate proceedings; (h) try two or more claims on the same occasion; (i) direct a separate trial of any issue; (j) decide the order in which issues are to be tried; (k) exclude an issue from consideration; (l) dismiss or give judgment on a claim after a decision on a preliminary issue;
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.
(3) When the court makes an order, it may — (a) make it subject to conditions, including a condition to pay a sum of money into court; and (b) specify the consequence of failure to comply with the order or a condition.
(4) Where the court gives directions it may take into account whether or not a party has complied with any relevant pre-action protocol(GL).
(5) The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.
(6) When exercising its power under paragraph (5) the court must have regard to— (a) the amount in dispute; and (b) the costs which the parties have incurred or which they may incur.
(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.
Court officer’s power to refer to a judge
3.2. Where a step is to be taken by a court officer— (a) the court officer may consult a judge before taking that step; (b) the step may be taken by a judge instead of the court officer.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
9
Court’s power to make order of its own initiative
3.3. (1) Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.
(Part 23 sets out the procedure for making an application) (2) Where the court proposes to make an order of its own initiative—
(a) it may give any person likely to be affected by the order an opportunity to make representations; and
(b) where it does so it must specify the time by and the manner in which the representations must be made.
(3) Where the court proposes— (a) to make an order of its own initiative; and (b) to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days' notice of the hearing. (4) The court may make an order of its own initiative without hearing the parties or giving them
an opportunity to make representations. (5) Where the court has made an order under paragraph (4)—
(a) a party affected by the order may apply to have it set aside(GL), varied or stayed(GN( � and (b) the order must contain a statement of the right to make such an application.
(6) An application under paragraph (5)(a) must be made— (a) within such period as may be specified by the court; or (b) if the court does not specify a period, not more than 7 days after the date on which the
order was served on the party making the application.
Power to strike out a statement of case
3.4. (1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.
(2) The court may strike out(GL) a statement of case if it appears to the court— (a) that the statement of case discloses no reasonable grounds for bringing or defending the
claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct
the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order.
(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate.
(4) Where— (a) the court has struck out a claimant’s statement of case; (b) the claimant has been ordered to pay costs to the defendant; and (c) before the claimant pays those costs, he starts another claim against the same defendant,
arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,
the court may, on the application of the defendant, stay(GL) that other claim until the costs of the first claim have been paid.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
10
(5) Paragraph (2) does not limit any other power of the court to strike out(GL) a statement of case.
Judgment without trial after striking out
3.5. (1) This rule applies where— (a) the court makes an order which includes a term that the statement of case of a party shall
be struck out if the party does not comply with the order; and (b) the party against whom the order was made does not comply with it.
(2) A party may obtain judgment with costs by filing a request for judgment if— (a) the order referred to in paragraph (1)(a) relates to the whole of a statement of case; and (b) where the party wishing to obtain judgment is the claimant, the claim is for—
(i) a specified amount of money; (ii) an amount of money to be decided by the court;
(iii) delivery of goods where the claim form gives the defendant the alternative of paying their value; or
(iv) any combination of these remedies. (3) The request must state that the right to enter judgment has arisen because the court’s order
has not been complied with. (4) A party must make an application in accordance with Part 23 if he wishes to obtain judgment
under this rule in a case to which paragraph (2) does not apply.
Setting aside judgment entered after striking out
3.6. (1) A party against whom the court has entered judgment under rule 3.5 may apply to the court to set the judgment aside.
(2) An application under paragraph (1) must be made not more than 14 days after the judgment has been served on the party making the application.
(3) If the right to enter judgment had not arisen at the time when judgment was entered, the court must set aside(GL) the judgment.
(4) If the application to set aside(GL) is made for any other reason, rule 3.9 (relief from sanctions) shall apply.
Sanctions for non—payment of certain fees
3.7. (1) This rule applies where— (a) an allocation questionnaire or a listing questionnaire is filed without payment of the fee
specified by the relevant Fees Order; or (b) the court dispenses with the need for an allocation questionnaire or a listing questionnaire
or both; or (c) these Rules do not require an allocation questionnaire or a listing questionnaire to be filed
in relation to the claim in question.
(Rule 26.3 provides for the court to dispense with the need for an allocation questionnaire and rules 28.5 and 29.6 provide for the court to dispense with the need for a listing questionnaire)
(2) The court will serve a notice on the claimant requiring payment of the fee which the relevant Fees Order specifies as being due—
(a) on the filing of the allocation questionnaire or the listing questionnaire; or
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
11
(b) in the circumstances where the claimant is not required to file an allocation questionnaire or a listing questionnaire,
if, at the time the fee is due, the claimant has not paid the fee or made an application for exemption from or remission of the fee.
(3) The notice will specify the date by which the claimant must pay the fee. (4) If the claimant does not—
(a) pay the fee; or (b) make an application for an exemption from or remission of the fee,
by the date specified in the notice— (i) the claim shall be struck out; and
(ii) the claimant shall be liable for the costs which the defendant has incurred unless the court orders otherwise.
(Rule 44.12 provides for the basis of assessment where a right to costs arises under this rule) (5) Where an application for exemption from or remission of a fee is refused, the court will serve
notice on the claimant requiring payment of the fee by the date specified in the notice. (6) If the claimant does not pay the fee by the date specified in the notice—
(a) the claim shall be struck out; and (b) the claimant shall be liable for the costs which the defendant has incurred unless the court
orders otherwise. (7) If—
(a) a claimant applies under rule 3.9 (relief from sanctions) to have the claim reinstated; and (b) the court grants relief under that rule,
the relief shall be conditional on the claimant— (i) paying the fee; or
(ii) filing evidence of exemption from payment or remission of the fee, within 2 days of the date of the order.
Sanctions have effect unless defaulting party obtains relief
3.8. (1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.
(Rule 3.9 sets out the circumstances which the court may consider on an application to grant relief from a sanction)
(2) Where the sanction is the payment of costs, the party in default may only obtain relief by appealing against the order for costs.
(3) Where a rule, practice direction or court order— (a) requires a party to do something within a specified time, and (b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
12
Relief from sanctions
3.9. (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including—
(a) the interests of the administration of justice; (b) whether the application for relief has been made promptly; (c) whether the failure to comply was intentional; (d) whether there is a good explanation for the failure; (e) the extent to which the party in default has complied with other rules, practice directions,
court orders and any relevant pre-action protocol(GN( � (f) whether the failure to comply was caused by the party or his legal representative; (g) whether the trial date or the likely trial date can still be met if relief is granted; (h) the effect which the failure to comply had on each party; and (i) the effect which the granting of relief would have on each party.
(2) An application for relief must be supported by evidence.
General power of the court to rectify matters where there has been an error of procedure
3.10. Where there has been an error of procedure such as a failure to comply with a rule or practice direction—
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.
PART 4 FORMS
4. (1) The forms set out in a practice direction shall be used in the cases to which they apply. (2) A form may be varied by the court or a party if the variation is required by the circumstances
of a particular case. (3) A form must not be varied so as to leave out any information or guidance which the form
gives to the recipient. (4) Where these Rules require a form to be sent by the court or by a party for another party to
use, it must be sent without any variation except such as is required by the circumstances of the particular case.
(5) Where the court or a party produces a form shown in a practice direction with the words “Royal Arms”, the form must include a replica of the Royal Arms at the head of the first page.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
13
PART 5 COURT DOCUMENTS
Contents of this Part
Scope of this Part Rule 5.1
Preparation of documents Rule 5.2
Signature of documents by mechanical means Rule 5.3
Supply of documents from court records Rule 5.4
Scope of this Part
5.1. This Part contains general provisions about— (a) documents used in court proceedings; and (b) the obligations of a court officer in relation to those documents.
Preparation of documents
5.2. (1) Where under these Rules, a document is to be prepared by the court, the document may be prepared by the party whose document it is, unless—
(a) a court officer otherwise directs; or (b) it is a document to which—
(i) CCR Order 25, rule 5(3) (reissue of enforcement proceedings); (ii) CCR Order 25, rule 8(9) (reissue of warrant where condition upon which warrant
was suspended has not been complied with); or (iii) CCR Order 28, rule 11(1) (issue of warrant of committal),
applies. (2) Nothing in this rule shall require a court officer to accept a document which is illegible, has
not been duly authorised, or is unsatisfactory for some other similar reason.
Signature of documents by mechanical means
5.3. Where any of these Rules or any practice direction requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means.
Supply of documents from court records
5.4. (1) Any party to proceedings may be supplied from the records of the court with a copy of any document relating to those proceedings (including documents filed before the claim was commenced), provided that the party seeking the document—
(a) pays any prescribed fee; and (b) files a written request for the document.
(2) Any other person who pays the prescribed fee may, during office hours, search for, inspect and take a copy of the following documents, namely—
(a) a claim form which has been served; (b) any judgment or order given or made in public;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
14
(c) any other document if the court gives permission. (3) An application for permission under paragraph (2)(c) may be made without notice. (4) This rule does not apply in relation to any proceedings in respect of which a practice direction
makes different provision.
PART 6 SERVICE OF DOCUMENTS
Contents of this Part
I GENERAL RULES ABOUT SERVICE
Part 6 rules about service apply generally Rule 6.1
Methods of service—general Rule 6.2
Who is to serve Rule 6.3
Personal service Rule 6.4
Address for service Rule 6.5
Service of documents on children and patients Rule 6.6
Deemed service Rule 6.7
Service by an alternative method Rule 6.8
Power of court to dispense with service Rule 6.9
Certificate of service Rule 6.10
Notice of non-service Rule 6.11
II SPECIAL PROVISIONS ABOUT SERVICE OF THE CLAIM FORM
General rules about service subject to special rules about service of claim form
Rule 6.12
Service of claim form by the court— defendant’s address for service
Rule 6.13
Certificate of service relating to the claim form Rule 6.14
Service of claim form by contractually agreed method
Rule 6.15
Service of claim form on agent of principal who is overseas
Rule 6.16
I GENERAL RULES ABOUT SERVICE
Part 6 rules about service apply generally
6.1. The rules in this Part apply to the service of documents, except where— (a) any other enactment, a rule in another Part, or a practice direction makes a different
provision; or
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
15
(b) the court orders otherwise.
(Other rules which deal with service include the following— (a) service out of the jurisdiction—see RSC Order 11; (b) service on the Crown—see RSC Order 77 r.4 and CCR Order 42 r.7; (c) service in proceedings for the recovery of land and mortgage possession actions—see RSC
Order 10 r.4 and CCR Order 7 rr.15 and15A.)
Methods of service—general
6.2. (1) A document may be served by any of the following methods— (a) personal service, in accordance with rule 6.4; (b) first class post; (c) leaving the document at a place specified in rule 6.5; (d) through a document exchange in accordance with the relevant practice direction; or (e) by fax or other means of electronic communication in accordance with the relevant practice
direction.
(Rule 6.8 provides for the court to permit service by an alternative method) (2) A company may be served by any method permitted under this Part as an alternative to the
methods of service set out in— (a) section 725 of the Companies Act 1985(8) (service by leaving a document at or posting
it to an authorised place); (b) section 695 of that Act (service on oversea companies); and (c) section 694A of that Act (service of documents on companies incorporated outside the
UK and Gibraltar and having a branch in Great Britain).
Who is to serve
6.3. (1) The court will serve a document which it has issued or prepared except where— (a) a rule provides that a party must serve the document in question; (b) the party on whose behalf the document is to be served notifies the court that he wishes
to serve it himself; (c) a practice direction provides otherwise; (d) the court orders otherwise; or (e) the court has failed to serve and has sent a notice of non-service to the party on whose
behalf the document is to be served in accordance with rule 6.11. (2) Where the court is to serve a document, it is for the court to decide which of the methods of
service specified in rule 6.2 is to be used. (3) Where a party prepares a document which is to be served by the court, that party must file
a copy for the court, and for each party to be served.
Personal service
6.4. (1) A document to be served may be served personally, except as provided in paragraph (2). (2) Where a solicitor—
(8) 1985 c. 6.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
16
(a) is authorised to accept service on behalf of a party; and (b) has notified the party serving the document in writing that he is so authorised,
a document must be served on the solicitor, unless personal service is required by an enactment, rule, practice direction or court order.
(3) A document is served personally on an individual by leaving it with that individual. (4) A document is served personally on a company or other corporation by leaving it with a
person holding a senior position within the company or corporation. (The service practice direction sets out the meaning of “senior position”)
(5) A document is served personally on a partnership where partners are being sued in the name of their firm by leaving it with—
(a) a partner; or (b) a person who, at the time of service, has the control or management of the partnership
business at its principal place of business.
Address for service
6.5. (1) Except as provided by RSC Order 11 (service out of the jurisdiction) a document must be served within the jurisdiction.
(“Jurisdiction” is defined in rule 2.3) (2) A party must give an address for service within the jurisdiction. (3) Where a party—
(a) does not give the business address of his solicitor as his address for service; and (b) resides or carries on business within the jurisdiction,
he must give his residence or place of business as his address for service. (4) Any document to be served—
(a) by first class post; (b) by leaving it at the place of service; (c) through a document exchange; or (d) by fax or by other means of electronic communication,
must be sent or transmitted to, or left at, the address for service given by the party to be served. (5) Where—
(a) a solicitor is acting for the party to be served; and (b) the document to be served is not the claim form;
the party’s address for service is the business address of his solicitor.
(Rule 6.13 specifies when the business address of a defendant’s solicitor may be the defendant’s address for service in relation to the claim form)
(6) Where— (a) no solicitor is acting for the party to be served; and, (b) the party has not given an address for service,
the document must be sent or transmitted to, or left at, the place shown in the following table.
(Rule 6.2(2) sets out the statutory methods of service on a company)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
17
Nature of party to be served Place of service Individual • Usual or last known residence.
Proprietor of a business • Usual or last known residence; or
• Place of business or last known place of business.
Individual who is suing or being sued in the name of a firm
• Usual or last known residence; or
• Principal or last known place of business of the firm.
Corporation incorporated in England and Wales other than a company
• Principal office of the corporation; or
• Any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.
Company registered in England and Wales • Principal office of the company; or
• Any place of business of the company within the jurisdiction which has a real connection with the claim.
Any other company or corporation • Any place within the jurisdiction where the corporation carries on its activities; or
• Any place of business of the company within the jurisdiction.
(7) This rule does not apply where an order made by the court under rule 6.8 (service by an alternative method) specifies where the document in question may be served.
Service of documents on children and patients
6.6. (1) The following table shows the person on whom a document must be served if it is a document which would otherwise be served on a child or a patient—
Type of document Nature of party Person to be served Claim form Child who is not also a patient • One of the child’s parents or
guardians; or
• if there is no parent or guardian, the person with whom the child resides or in whose care the child is.
Claim form Patient • The person authorised under Part VII of the Mental Health Act 1983(9) to conduct the proceedings in the name of the patient or on his behalf; or
(9) 1983 c. 20.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
18
Type of document Nature of party Person to be served • if there is no person so authorised, the person with whom the patient resides or in whose care the patient is.
Application for an order appointing a litigation friend, where a child or patient has no litigation friend
Child or patient See rule 21.8.
Any other document Child or patient The litigation friend who is conducting proceedings on behalf of the child or patient.
(2) The court may make an order permitting a document to be served on the child or patient, or on some person other than the person specified in the table in this rule.
(3) An application for an order under paragraph (2) may be made without notice. (4) The court may order that, although a document has been served on someone other than the
person specified in the table, the document is to be treated as if it had been properly served. (5) This rule does not apply where the court has made an order under rule 21.2(3) allowing a
child to conduct proceedings without a litigation friend.
(Part 21 contains rules about the appointment of a litigation friend)
Deemed service
6.7. (1) A document which is served in accordance with these rules or any relevant practice direction shall be deemed to be served on the day shown in the following table—
Method of service Deemed day of service First class post The second day after it was posted.
Document exchange The second day after it was left at the document exchange.
Delivering the document to or leaving it at a permitted address
The day after it was delivered to or left at the permitted address.
Fax • If it is transmitted on a business day before 4 p.m, on that day; or
• in any other case, on the business day after the day on which it is transmitted.
Other electronic method The second day after the day on which it is transmitted.
(2) If a document (other than a claim form) is served after 5 p.m. on a business day, or at any time on a Saturday, Sunday or a bank holiday, the document shall be treated as having been served on the next business day.
(3) In this rule— “business day” means any day except Saturday, Sunday or a bank holiday; and “bank holiday” includes Christmas Day and Good Friday.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
19
Service by an alternative method
6.8. (1) Where it appears to the court that there is a good reason to authorise service by a method not permitted by these Rules, the court may make an order permitting service by an alternative method.
(2) An application for an order permitting service by an alternative method— (a) must be supported by evidence; and (b) may be made without notice.
(3) An order permitting service by an alternative method must specify— (a) the method of service; and (b) the date when the document will be deemed to be served.
Power of court to dispense with service
6.9. (1) The court may dispense with service of a document. (2) An application for an order to dispense with service may be made without notice.
Certificate of service
6.10. Where a rule, practice direction or court order requires a certificate of service, the certificate must state—
(a) that the document has not been returned undelivered; and (b) the details set out in the following table—
Method of service Details to be certified Post Date of posting
Personal Date of personal service
Document exchange Date of delivery to the document exchange
Delivery of document to or leaving it at a permitted place
Date when the document was delivered to or left at the permitted place
Fax Date and time of transmission
Other electronic means Date of transmission and the means used
Alternative method permitted by the court As required by the court
Notice of non-service
6.11. Where— (a) a document is to be served by the court; and (b) the court is unable to serve it,
the court must send a notice of non-service stating the method attempted to the party who requested service. II SPECIAL PROVISIONS ABOUT SERVICE OF THE CLAIM FORM
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
20
General rules about service subject to special rules about service of claim form
6.12. The general rules about service are subject to the special rules about service contained in rules 6.13 to 6.16.
Service of claim form by the court—defendant’s address for service
6.13. (1) Where a claim form is to be served by the court, the claim form must include the defendant’s address for service.
(2) For the purposes of paragraph (1), the defendant’s address for service may be the business address of the defendant’s solicitor if he is authorised to accept service on the defendant’s behalf but not otherwise.
(Rule 6.5 contains general provisions about the address for service)
Certificate of service relating to the claim form
6.14. (1) Where a claim form is served by the court, the court must send the claimant a notice which will include the date when the claim form is deemed to be served under rule 6.7.
(2) Where the claim form is served by the claimant— (a) he must file a certificate of service within 7 days of service of the claim form; and (b) he may not obtain judgment in default under Part 12 unless he has filed the certificate of
service.
(Rule 6.10 specifies what a certificate of service must show)
Service of the claim form by contractually agreed method
6.15. (1) Where— (a) a contract contains a term providing that, in the event of a claim being issued in relation
to the contract, the claim form may be served by a method specified in the contract; and (b) a claim form containing only a claim in respect of that contract is issued,
the claim form shall, subject to paragraph (2), be deemed to be served on the defendant if it is served by a method specified in the contract.
(2) Where the claim form is served out of the jurisdiction in accordance with the contract, it shall not be deemed to be served on the defendant unless—
(a) permission to serve it out of the jurisdiction has been granted under RSC Order 11 r.1(1); or (b) it may be served without permission under RSC Order 11 r.1(2).
Service of claim form on agent of principal who is overseas
6.16. (1) Where— (a) the defendant is overseas; and (b) the conditions specified in paragraph (2) are satisfied,
the court may, on an application only, permit a claim form relating to a contract to be served on a defendant’s agent.
(2) The court may not make an order under this rule unless it is satisfied that— (a) the contract to which the claim relates was entered into within the jurisdiction with or
through the defendant’s agent; and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
21
(b) at the time of the application either the agent’s authority has not been terminated or he is still in business relations with his principal.
(3) An application under this rule— (a) must be supported by evidence; and (b) may be made without notice.
(4) An order under this rule must state a period within which the defendant must respond to the particulars of claim.
(Rule 9.2 sets out how a defendant may respond to particulars of claim) (5) The power conferred by this rule is additional to the power conferred by rule 6.8 (service
by an alternative method). (6) Where the court makes an order under this rule, the claimant must send to the defendant
copies of— (a) the order; and (b) the claim form.
PART 7 HOW TO START PROCEEDINGS—THE CLAIM FORM
Contents of this Part
Where to start proceedings Rule 7.1
How to start proceedings Rule 7.2
Right to use one claim form to start two or more claims
Rule 7.3
Particulars of claim Rule 7.4
Service of a claim form Rule 7.5
Extension of time for serving a claim form Rule 7.6
Application by defendant for service of a claim form
Rule 7.7
Form for defence etc. must be served with particulars of claim
Rule 7.8
Fixed date and other claims Rule 7.9
Production Centre for claims Rule 7.10
Where to start proceedings
7.1. Restrictions on where proceedings may be started are set out in the relevant practice direction.
How to start proceedings
7.2. (1) Proceedings are started when the court issues a claim form at the request of the claimant. (2) A claim form is issued on the date entered on the form by the court.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
22
(A person who seeks a remedy from the court before proceedings are started or in relation to proceedings which are taking place, or will take place, in another jurisdiction must make an application under Part 23)
(Part 16 sets out what the claim form must include)
Right to use one claim form to start two or more claims
7.3. A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.
Particulars of claim
7.4. (1) Particulars of claim must— (a) be contained in or served with the claim form; or (b) subject to paragraph (2) be served on the defendant by the claimant within 14 days after
service of the claim form. (2) Particulars of claim must be served on the defendant no later than the latest time for serving
a claim form.
(Rule 7.5 sets out the latest time for serving a claim form) (3) Where the claimant serves particulars of claim separately from the claim form in accordance
with paragraph (1)(b), he must, within 7 days of service on the defendant, file a copy of the particulars together with a certificate of service.
(Part 16 sets out what the particulars of claim must include) (Part 22 requires particulars of claim to be verified by a statement of truth) (Rule 6.10 makes provision for a certificate of service)
Service of a claim form
7.5. (1) After a claim form has been issued, it must be served on the defendant. (2) The general rule is that a claim form must be served within 4 months after the date of issue. (3) The period for service is 6 months where the claim form is to be served out of the jurisdiction.
Extension of time for serving a claim form
7.6. (1) The claimant may apply for an order extending the period within which the claim form may be served.
(2) The general rule is that an application to extend the time for service must be made— (a) within the period for serving the claim form specified by rule 7.5; or (b) where an order has been made under this rule, within the period for service specified by
that order. (3) If the claimant applies for an order to extend the time for service of the claim form after the
end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if—
(a) the court has been unable to serve the claim form; or (b) the claimant has taken all reasonable steps to serve the claim form but has been unable
to do so; and (c) in either case, the claimant has acted promptly in making the application.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
23
(4) An application for an order extending the time for service— (a) must be supported by evidence; and (b) may be made without notice.
Application by defendant for service of claim form
7.7. (1) Where a claim form has been issued against a defendant, but has not yet been served on him, the defendant may serve a notice on the claimant requiring him to serve the claim form or discontinue the claim within a period specified in the notice.
(2) The period specified in a notice served under paragraph (1) must be at least 14 days after service of the notice.
(3) If the claimant fails to comply with the notice, the court may, on the application of the defendant—
(a) dismiss the claim; or (b) make any other order it thinks just.
Form for defence etc. must be served with particulars of claim
7.8. (1) When particulars of claim are served on a defendant, whether they are contained in the claim form, served with it or served subsequently, they must be accompanied by—
(a) a form for defending the claim; (b) a form for admitting the claim; and (c) a form for acknowledging service.
(2) Where the claimant is using the procedure set out in Part 8 (alternative procedure for claims)— (a) paragraph (1) does not apply; and (b) a form for acknowledging service must accompany the claim form.
Fixed date and other claims
7.9. A practice direction— (a) may set out the circumstances in which the court may give a fixed date for a hearing when
it issues a claim; (b) may list claims in respect of which there is a specific claim form for use and set out the
claim form in question; and (c) may disapply or modify these Rules as appropriate in relation to the claims referred to in
paragraphs (a) and (b).
Production Centre for claims
7.10. (1) There shall be a Production Centre for the issue of claim forms and other related matters. (2) The relevant practice direction makes provision for—
(a) which claimants may use the Production Centre; (b) the type of claims which the Production Centre may issue; (c) the functions which are to be discharged by the Production Centre; (d) the place where the Production Centre is to be located; and (e) other related matters.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
24
(3) The relevant practice direction may disapply or modify these Rules as appropriate in relation to claims issued by the Production Centre.
PART 8 ALTERNATIVE PROCEDURE FOR CLAIMS
Contents of this Part
Types of claim in which Part 8 procedure may be followed
Rule 8.1
Contents of the claim form Rule 8.2
Acknowledgment of service Rule 8.3
Consequence of not filing an acknowledgment of service
Rule 8.4
Filing and serving written evidence Rule 8.5
Evidence—general Rule 8.6
Part 20 claims Rule 8.7
Procedure where defendant objects to use of Part 8 procedure
Rule 8.8
Modifications to the general rules Rule 8.9
Types of claim in which Part 8 procedure may be followed
8.1. (1) The Part 8 procedure is the procedure set out in this Part. (2) A claimant may use the Part 8 procedure where—
(a) he seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact; or
(b) paragraph (6) applies. (3) The court may at any stage order the claim to continue as if the claimant had not used the
Part 8 procedure and, if it does so, the court may give any directions it considers appropriate. (4) Paragraph (2) does not apply if a practice direction provides that the Part 8 procedure may
not be used in relation to the type of claim in question. (5) Where the claimant uses the Part 8 procedure he may not obtain default judgment under Part
12. (6) A rule or practice direction may, in relation to a specified type of proceedings—
(a) require or permit the use of the Part 8 procedure; and (b) disapply or modify any of the rules set out in this Part as they apply to those proceedings.
(Rule 8.9 provides for other modifications to the general rules where the Part 8 procedure is being used)
Contents of the claim form
8.2. Where the claimant uses the Part 8 procedure the claim form must state—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
25
(a) that this Part applies; (b) (i) the question which the claimant wants the court to decide; or
(ii) the remedy which the claimant is seeking and the legal basis for the claim to that remedy;
(c) if the claim is being made under an enactment, what that enactment is; (d) if the claimant is claiming in a representative capacity, what that capacity is; and (e) if the defendant is sued in a representative capacity, what that capacity is.
(Part 22 provides for the claim form to be verified by a statement of truth) (Rule 7.5 provides for service of the claim form)
Acknowledgment of service
8.3. (1) The defendant must— (a) file an acknowledgment of service in the relevant practice form not more than 14 days
after service of the claim form; and (b) serve the acknowledgment of service on the claimant and any other party.
(2) The acknowledgment of service must state— (a) whether the defendant contests the claim; and (b) if the defendant seeks a different remedy from that set out in the claim form, what that
remedy is. (3) The following rules of Part 10 (acknowledgment of service) apply—
(a) rule 10.3(2) (exceptions to the period for filing an acknowledgment of service); and (b) rule 10.5 (contents of acknowledgment of service).
(4) Part 11 (disputing the court’s jurisdiction) applies subject to the modification that in rule 11(4) (a) and (5)(b) (time limit for application disputing court’s jurisdiction) references to the period for filing a defence are treated as if they were references to a period of 14 days from the filing of an acknowledgment of service.
Consequence of not filing an acknowledgment of service
8.4. (1) This rule applies where— (a) the defendant has failed to file an acknowledgment of service; and (b) the time period for doing so has expired.
(2) The defendant may attend the hearing of the claim but may not take part in the hearing unless the court gives permission.
Filing and serving written evidence
8.5. (1) The claimant must file any written evidence on which he intends to rely when he files his claim form.
(2) The claimant’s evidence must be served on the defendant with the claim form. (3) A defendant who wishes to rely on written evidence must file it when he files his
acknowledgment of service. (4) If he does so, he must also, at the same time, serve a copy of his evidence on the other parties.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
26
(5) The claimant may, within 14 days of service of the defendant’s evidence on him, file further written evidence in reply.
(6) If he does so, he must also, within the same time limit, serve a copy of his evidence on the other parties.
(7) The claimant may rely on the matters set out in his claim form as evidence under this rule if the claim form is verified by a statement of truth.
Evidence—general
8.6. (1) No written evidence may be relied on at the hearing of the claim unless— (a) it has been served in accordance with rule 8.5; or (b) the court gives permission.
(2) The court may require or permit a party to give oral evidence at the hearing.
(3) The court may give directions requiring the attendance for cross-examination(GL) of a witness who has given written evidence.
(Rule 32.1 contains a general power for the court to control evidence)
Part 20 claims
8.7. Where the Part 8 procedure is used, Part 20 (counterclaims and other additional claims) applies except that a party may not make a Part 20 claim (as defined by rule 20.2) without the court’s permission.
Procedure where defendant objects to use of the Part 8 procedure
8.8. (1) Where the defendant contends that the Part 8 procedure should not be used because— (a) there is a substantial dispute of fact; and (b) the use of the Part 8 procedure is not required or permitted by a rule or practice direction,
he must state his reasons when he files his acknowledgment of service.
(Rule 8.5 requires a defendant who wishes to rely on written evidence to file it when he files his acknowledgment of service)
(2) When the court receives the acknowledgment of service and any written evidence it will give directions as to the future management of the case.
(Rule 8.1(3) allows the court to make an order that the claim continue as if the claimant had not used the Part 8 procedure)
Modifications to the general rules
8.9. Where the Part 8 procedure is followed— (a) provision is made in this Part for the matters which must be stated in the claim form and
the defendant is not required to file a defence and therefore— (i) Part 16 (statements of case) does not apply;
(ii) Part 15 (defence and reply) does not apply; (iii) any time limit in these Rules which prevents the parties from taking a step before a
defence is filed does not apply; and (iv) the requirement under rule 7.8 to serve on the defendant a form for defending the
claim does not apply;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
27
(b) the claimant may not obtain judgment by request on an admission and therefore— (i) rules 14.4 to 14.7 do not apply; and
(ii) the requirement under rule 7.8 to serve on the defendant a form for admitting the claim does not apply; and
(c) the claim shall be treated as allocated to the multi-track and therefore Part 26 does not apply.
PART 9 RESPONDING TO PARTICULARS OF CLAIM—GENERAL
Contents of this Part
Scope of this Part Rule 9.1
Defence, admission or acknowledgment of service
Rule 9.2
Scope of this Part
9.1. (1) This Part sets out how a defendant may respond to particulars of claim. (2) Where the defendant receives a claim form which states that particulars of claim are to follow,
he need not respond to the claim until the particulars of claim have been served on him.
Defence, admission or acknowledgment of service
9.2. When particulars of claim are served on a defendant, the defendant may— (a) file or serve an admission in accordance with Part 14; (b) file a defence in accordance with Part 15,
(or do both, if he admits only part of the claim); or (c) file an acknowledgment of service in accordance with Part 10.
PART 10 ACKNOWLEDGMENT OF SERVICE
Contents of this Part
Acknowledgment of service Rule 10.1
Consequence of not filing an acknowledgment of service
Rule 10.2
The period for filing an acknowledgment of service
Rule 10.3
Notice to claimant that defendant has filed an acknowledgment of service
Rule 10.4
Contents of acknowledgment of service Rule 10.5
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
28
Acknowledgment of service
10.1. (1) This Part deals with the procedure for filing an acknowledgment of service. (2) Where the claimant uses the procedure set out in Part 8 (alternative procedure for claims) this
Part applies subject to the modifications set out in rule 8.3. (3) A defendant may file an acknowledgment of service if—
(a) he is unable to file a defence within the period specified in rule 15.4; or (b) he wishes to dispute the court’s jurisdiction.
(Part 11 sets out the procedure for disputing the court’s jurisdiction)
Consequence of not filing an acknowledgment of service
10.2. If— (a) a defendant fails to file an acknowledgment of service within the period specified in rule
10.3; and (b) does not within that period file a defence in accordance with Part 15 or serve or file an
admission in accordance with Part 14,
the claimant may obtain default judgment if Part 12 allows it.
The period for filing an acknowledgment of service
10.3. (1) The general rule is that the period for filing an acknowledgment of service is— (a) where the defendant is served with a claim form which states that particulars of claim are
to follow, 14 days after service of the particulars of claim; and (b) in any other case, 14 days after service of the claim form.
(2) The general rule is subject to the following rules— (a) RSC Order 11 r.1A (which specifies how the period for filing an acknowledgment of
service is calculated where the claim form is served out of the jurisdiction); and (b) rule 6.16(4) (which requires the court to specify the period for responding to the particulars
of claim when it makes an order under that rule).
Notice to claimant that defendant has filed an acknowledgment of service
10.4. On receipt of an acknowledgment of service, the court must notify the claimant in writing.
Contents of acknowledgment of service
10.5. An acknowledgment of service must— (a) be signed by the defendant or his legal representative; and (b) include the defendant’s address for service.
(Rule 6.5 provides that an address for service must be within the jurisdiction)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
29
PART 11 DISPUTING THE COURT'S JURISDICTION
Contents of this Part
Procedure for disputing the court’s jurisdiction. Rule 11
Procedure for disputing the court’s jurisdiction
11. (1) A defendant who wishes to— (a) dispute the court’s jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction,
may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.
(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.
(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction.
(4) An application under this rule must— (a) be made within the period for filing a defence; and (b) be supported by evidence.
(Rule 15.4 sets out the period for filing a defence) (5) If the defendant—
(a) files an acknowledgment of service; and (b) does not make such an application within the period for filing a defence,
he is to be treated as having accepted that the court has jurisdiction to try the claim. (6) An order containing a declaration that the court has no jurisdiction or will not exercise its
jurisdiction may also make further provision including— (a) setting aside the claim form; (b) setting aside service of the claim form; (c) discharging any order made before the claim was commenced or before the claim form
was served; and (d) staying(GL)the proceedings.
(7) If on an application under this rule the court does not make a declaration— (a) the acknowledgment of service shall cease to have effect; and (b) the defendant may file a further acknowledgment of service within 14 days or such other
period as the court may direct. (8) If the defendant files a further acknowledgment of service in accordance with paragraph (7)
(b) he shall be treated as having accepted that the court has jurisdiction to try the claim. (9) Where a defendant makes an application under this rule he need not file a defence before
the hearing of the application. (10) Where the claimant uses the procedure set out in Part 8 (alternative procedure for claims)
this Part applies subject to the modifications set out in rule 8.3.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
30
PART 12 DEFAULT JUDGMENT
Contents of this Part
Meaning of “default judgment” Rule 12.1
Claims in which default judgment may not be obtained
Rule 12.2
Conditions to be satisfied Rule 12.3
Procedure for obtaining default judgment Rule 12.4
Nature of judgment where default judgment obtained by filing a request
Rule 12.5
Interest Rule 12.6
Procedure for deciding an amount or value Rule 12.7
Claim against more than one defendant Rule 12.8
Procedure for obtaining default judgment for costs only
Rule 12.9
Default judgment obtained by making an application
Rule 12.10
Supplementary provisions where applications for default judgment are made
Rule 12.11
Meaning of “default judgment”
12.1. In these Rules, “default judgment” means judgment without trial where a defendant— (a) has failed to file an acknowledgment of service; or (b) has failed to file a defence.
(Part 10 contains provisions about filing an acknowledgment of service and Part 15 contains provisions about filing a defence)
Claims in which default judgment may not be obtained
12.2. A claimant may not obtain a default judgment— (a) on a claim for delivery of goods subject to an agreement regulated by the Consumer Credit
Act 1974(10); (b) where he uses the procedure set out in Part 8 (alternative procedure for claims); or (c) in any other case where a practice direction provides that the claimant may not obtain
default judgment.
Conditions to be satisfied
12.3. (1) The claimant may obtain judgment in default of an acknowledgment of service only if—
(10) 1974 c. 39.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
31
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired. (2) The claimant may obtain judgment in default of defence only if—
(a) the defendant has filed an acknowledgment of service but has not filed a defence; and (b) the relevant time for doing so has expired.
(Rules 10.3 and 15.4 deal respectively with the period for filing an acknowledgment of service and the period for filing a defence)
(3) The claimant may not obtain a default judgment if— (a) the defendant has applied for summary judgment under Part 24, and that application has
not been disposed of; (b) the defendant has satisfied the whole claim (including any claim for costs) on which the
claimant is seeking judgment; or (c) (i) the claimant is seeking judgment on a claim for money; and
(ii) the defendant has filed or served on the claimant an admission under rule 14.4 or 14.7 (admission of liability to pay all of the money claimed) together with a request for time to pay.
(Part 14 sets out the procedure where a defendant admits a money claim and asks for time to pay)
(Rule 6.14 provides that, where the claim form is served by the claimant, he may not obtain default judgment unless he has filed a certificate of service)
Procedure for obtaining default judgment
12.4. (1) Subject to paragraph (2), a claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for—
(a) a specified amount of money; (b) an amount of money to be decided by the court; (c) delivery of goods where the claim form gives the defendant the alternative of paying their
value; or (d) any combination of these remedies.
(2) The claimant must make an application in accordance with Part 23 if he wishes to obtain a default judgment—
(a) on a claim which consists of or includes a claim for any other remedy; or (b) where rule 12.9 or rule 12.10 so provides.
(3) Where a claimant— (a) claims any other remedy in his claim form in addition to those specified in paragraph (1);
but (b) abandons that claim in his request for judgment,
he may still obtain a default judgment by filing a request under paragraph (1).
Nature of judgment where default judgment obtained by filing a request
12.5. (1) Where the claim is for a specified sum of money, the claimant may specify in a request filed under rule 12.4(1)—
(a) the date by which the whole of the judgment debt is to be paid; or
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
32
(b) the times and rate at which it is to be paid by instalments. (2) Except where paragraph (4) applies, a default judgment on a claim for a specified amount of
money obtained on the filing of a request, will be judgment for the amount of the claim (less any payments made) and costs—
(a) to be paid by the date or at the rate specified in the request for judgment; or (b) if none is specified, immediately.
(Interest may be included in a default judgment obtained by filing a request if the conditions set out in Rule 12.6 are satisfied)
(Rule 45.4 provides for fixed costs on the entry of a default judgment) 12.5. (3) Where the claim is for an unspecified amount of money, a default judgment obtained
on the filing of a request will be for an amount to be decided by the court and costs. (4) Where the claim is for delivery of goods and the claim form gives the defendant the alternative
of paying their value, a default judgment obtained on the filing of a request will be judgment requiring the defendant to—
(a) deliver the goods or (if he does not do so) pay the value of the goods as decided by the court (less any payments made); and
(b) pay costs.
(Rule 12.7 sets out the procedure for deciding the amount of a judgment or the value of the goods) (5) The claimant’s right to enter judgment requiring the defendant to deliver goods is subject to
rule 40.14 (judgment in favour of certain part owners relating to the detention of goods).
Interest
12.6. (1) A default judgment on a claim for a specified amount of money obtained on the filing of a request may include the amount of interest claimed to the date of judgment if—
(a) the particulars of claim include the details required by rule 16.4; (b) where interest is claimed under section 35A of the Supreme Court Act 1981(11) or
section 69 of the County Courts Act 1984(12), the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; and
(c) the claimant’s request for judgment includes a calculation of the interest claimed for the period from the date up to which interest was stated to be calculated in the claim form to the date of the request for judgment.
(2) In any case where paragraph (1) does not apply, judgment will be for an amount of interest to be decided by the court.
(Rule 12.7 sets out the procedure for deciding the amount of interest)
Procedure for deciding an amount or value
12.7. (1) This rule applies where the claimant obtains a default judgment on the filing of a request under rule 12.4(1) and judgment is for—
(a) an amount of money to be decided by the court; (b) the value of goods to be decided by the court; or (c) an amount of interest to be decided by the court.
(11) 1981 c. 54. Section 35A was inserted by the Administration of Justice Act 1982 (c. 53), section 15(1), Schedule 1, Part I. (12) 1984 c. 28. Section 69 was amended by the Courts and Legal Services Act 1990 (c. 41), Schedule 18, paragraph 46.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
33
(2) Where the court enters judgment it will— (a) give any directions it considers appropriate; and (b) if it considers it appropriate, allocate the case.
Claim against more than one defendant
12.8. (1) A claimant may obtain a default judgment on request under this Part on a claim for money or a claim for delivery of goods against one of two or more defendants, and proceed with his claim against the other defendants.
(2) Where a claimant applies for a default judgment against one of two or more defendants— (a) if the claim can be dealt with separately from the claim against the other defendants—
(i) the court may enter a default judgment against that defendant; and (ii) the claimant may continue the proceedings against the other defendants;
(b) if the claim cannot be dealt with separately from the claim against the other defendants— (i) the court will not enter default judgment against that defendant; and
(ii) the court must deal with the application at the same time as it disposes of the claim against the other defendants.
(3) A claimant may not enforce against one of two or more defendants any judgment obtained under this Part for possession of land or for delivery of goods unless—
(a) he has obtained a judgment for possession or delivery (whether or not obtained under this Part) against all the defendants to the claim; or
(b) the court gives permission.
Procedure for obtaining a default judgment for costs only
12.9. (1) Where a claimant wishes to obtain a default judgment for costs only— (a) if the claim is for fixed costs, he may obtain it by filing a request in the relevant practice
form; (b) if the claim is for any other type of costs, he must make an application in accordance with
Part 23. (2) Where an application is made under this rule for costs only, judgment shall be for an amount
to be decided by the court.
(Part 45 sets out when a claimant is entitled to fixed costs)
Default judgment obtained by making an application
12.10. The claimant must make an application in accordance with Part 23 where— (a) the claim is—
(i) a claim against a child or patient; (ii) a claim in tort by one spouse against the other; or
(iii) a claim against the Crown. (b) he wishes to obtain a default judgment where the defendant has failed to file an
acknowledgment of service—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
34
(i) against a defendant who has been served with the claim out of the jurisdiction under RSC Order 11 r.1(2)(a) (service without leave under the Civil Jurisdiction and Judgments Act 1982(13));
(ii) against a defendant domiciled in Scotland or Northern Ireland or in any other Convention territory;
(iii) against a State; (iv) against a diplomatic agent who enjoys immunity from civil jurisdiction by virtue of
the Diplomatic Privileges Act 1964(14); or (v) against persons or organisations who enjoy immunity from civil jurisdiction pursuant
to the provisions of the International Organisations Acts 1968 and 1981(15).
Supplementary provisions where applications for default judgment are made
12.11. (1) Where the claimant makes an application for a default judgment, judgment shall be such judgment as it appears to the court that the claimant is entitled to on his statement of case.
(2) Any evidence relied on by the claimant in support of his application need not be served on a party who has failed to file an acknowledgment of service.
(3) An application for a default judgment on a claim against a child or patient or a claim in tort between spouses must be supported by evidence.
(4) An application for a default judgment may be made without notice if— (a) the claim was served in accordance with the Civil Jurisdiction and Judgments Act 1982; (b) the defendant has failed to file an acknowledgment of service; and (c) notice does not need to be given under any other provision of these Rules.
(5) Where an application is made against a State for a default judgment where the defendant has failed to file an acknowledgment of service—
(a) the application may be made without notice, but the court hearing the application may direct that a copy of the application notice be served on the State;
(b) if the court— (i) grants the application; or
(ii) directs that a copy of the application notice be served on the State, the judgment or application notice (and the evidence in support) may be served out of the jurisdiction without any further order;
(c) where paragraph (5)(b) permits a judgment or an application notice to be served out of the jurisdiction, the procedure for serving the judgment or the application notice is the same as for serving a claim form under RSC Order 11 except where an alternative method of service has been agreed under section 12(6) of the State Immunity Act 1978(16).
(Rule 23.1 defines “application notice”) (6) For the purposes of this rule and rule 12.10—
(a) “domicile” is to be determined in accordance with the provisions of sections 41 to 46 of the Civil Jurisdiction and Judgments Act 1982;
(13) 1982 c. 27. (14) 1964 c. 81. (15) 1968 c. 48; 1981 c. 9. (16) 1978 c. 33.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
35
(b) “Convention territory” means the territory or territories of any Contracting State, as defined by section 1(3) of the Civil Jurisdiction and Judgments Act 1982, to which the Brussels Conventions or Lugano Convention apply;
(c) “State” has the meaning given by section 14 of the State Immunity Act 1978; and (d) “Diplomatic agent” has the meaning given by Article 1 (e) of Schedule 1 to the Diplomatic
Privileges Act 1964.
PART 13 SETTING ASIDE OR VARYING DEFAULT JUDGMENT
Contents of this Part
Scope of this Part Rule 13.1
Cases where the court must set aside judgment entered under Part 12
Rule 13.2
Cases where the court may set aside or vary judgment entered under Part 12
Rule 13.3
Application to set aside or vary judgment— procedure
Rule 13.4
Claimant’s duty to apply to set aside judgment Rule 13.5
Abandoned claim restored where default judgment set aside
Rule 13.6
Scope of this Part
13.1. The rules in this Part set out the procedure for setting aside or varying judgment entered under Part 12 (default judgment).
(CCR Order 22 r.10 sets out the procedure for varying the rate at which a judgment debt must be paid)
Cases where the court must set aside judgment entered under Part 12
13.2. The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because—
(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;
(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or
(c) the whole of the claim was satisfied before judgment was entered.
Cases where the court may set aside or vary judgment entered under Part 12
13.3. (1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if—
(a) the defendant has a real prospect of successfully defending the claim; or
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
36
(b) it appears to the court that there is some other good reason why— (i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.
(2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.
(Rule 3.1(3) provides that the court may attach conditions when it makes an order)
Application to set aside or vary judgment—procedure
13.4. (1) Where— (a) the claim is for a specified amount of money; (b) the judgment was obtained in a court which is not the defendant’s home court; (c) the claim has not been transferred to another defendant’s home court under rule 14.12
(admission—determination of rate of payment by judge) or rule 26.2 (automatic transfer); and
(d) the defendant is an individual,
the court will transfer an application by a defendant under this Part to set aside(GL) or vary judgment to the defendant’s home court.
(Rule 2.3 explains which court is a defendant’s home court) (2) Paragraph (1) does not apply where the claim was commenced in a specialist list.
(3) An application under rule 13.3 (cases where the court may set aside(GL) or vary judgment) must be supported by evidence.
Claimant’s duty to apply to set aside judgment
13.5. (1) This rule applies where— (a) the claimant has purported to serve particulars of claim; and (b) the claimant has entered judgment under Part 12 against the defendant to whom the
particulars of claim were sent. (2) If a claimant who has entered judgment subsequently has good reason to believe that the
particulars of claim did not reach the defendant before the claimant entered judgment, he must— (a) file a request for the judgment to be set aside(GN( � or (b) apply to the court for directions.
(3) The claimant may take no further step in the proceedings for the enforcement of the judgment until the judgment has been set aside(GL) or the court has disposed of the application for directions.
Abandoned claim restored where default judgment set aside
13.6. Where— (a) the claimant claimed a remedy in addition to one specified in rule 12.4(1) (claims in respect
of which the claimant may obtain default judgment by filing a request); (b) the claimant abandoned his claim for that remedy in order to obtain default judgment on
request in accordance with rule 12.4(3); and (c) that default judgment is set aside(GL) under this Part,
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
37
the abandoned claim is restored when the default judgment is set aside.
PART 14 ADMISSIONS
Contents of this Part
Making an admission Rule 14.1
Period for making an admission Rule 14.2
Admission by notice in writing—application for judgment
Rule 14.3
Admission of whole of claim for specified amount of money
Rule 14.4
Admission of part of claim for specified amount of money
Rule 14.5
Admission of liability to pay whole of claim for unspecified amount of money
Rule 14.6
Admission of liability to pay claim for unspecified amount of money where defendant offers a sum in satisfaction of the claim
Rule 14.7
Allocation of claims in relation to outstanding matters
Rule 14.8
Request for time to pay Rule 14.9
Determination of rate of payment Rule 14.10
Determination of rate of payment by court officer
Rule 14.11
Determination of rate of payment by judge Rule 14.12
Right of re-determination Rule 14.13
Interest Rule 14.14
Making an admission
14.1. (1) A party may admit the truth of the whole or any part of another party’s case. (2) He may do this by giving notice in writing (such as in a statement of case or by letter). (3) Where the only remedy which the claimant is seeking is the payment of money, the defendant
may also make an admission in accordance with— (a) rule 14.4 (admission of whole claim for specified amount of money); (b) rule 14.5 (admission of part of claim for specified amount of money); (c) rule 14.6 (admission of liability to pay whole of claim for unspecified amount of money);
or (d) rule 14.7 (admission of liability to pay claim for unspecified amount of money where
defendant offers a sum in satisfaction of the claim).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
38
(4) Where the defendant makes an admission as mentioned in paragraph (3), the claimant has a right to enter judgment except where—
(a) the defendant is a child or patient; or (b) the claimant is a child or patient and the admission is made under rule 14.5 or 14.7.
(Rule 21.10 provides that, where a claim is made by or on behalf of a child or patient or against a child or patient, no settlement, compromise or payment shall be valid, so far as it relates to that person’s claim, without the approval of the court)
(5) The court may allow a party to amend or withdraw an admission.
(Rule 3.1(3) provides that the court may attach conditions when it makes an order)
Period for making an admission
14.2. (1) The period for returning an admission under rule 14.4 or for filing it under rules 14.5, 14.6 or 14.7 is—
(a) where the defendant is served with a claim form which states that particulars of claim will follow, 14 days after service of the particulars; and
(b) in any other case, 14 days after service of the claim form. (2) Paragraph (1) is subject to the following rules—
(a) RSC Order 11 r.1A (which specifies how the period for filing or returning an admission is calculated where the claim form is served out of the jurisdiction); and
(b) rule 6.16(4) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule).
(3) A defendant may return an admission under rule 14.4 or file it under rules 14.5, 14.6 or 14.7 after the end of the period for returning or filing it specified in paragraph (1) if the claimant has not obtained default judgment under Part 12.
(4) If he does so, this Part shall apply as if he had made the admission within that period.
Admission by notice in writing—application for judgment
14.3. (1) Where a party makes an admission under rule 14.1(2) (admission by notice in writing), any other party may apply for judgment on the admission.
(2) Judgment shall be such judgment as it appears to the court that the applicant is entitled to on the admission.
Admission of whole of claim for specified amount of money
14.4. (1) This rule applies where— (a) the only remedy which the claimant is seeking is the payment of a specified amount of
money; and (b) the defendant admits the whole of the claim.
(2) The defendant may admit the claim by returning to the claimant an admission in the relevant practice form.
(3) The claimant may obtain judgment by filing a request in the relevant practice form and, if he does so—
(a) if the defendant has not requested time to pay, the procedure in paragraphs (4) to (6) will apply;
(b) if the defendant has requested time to pay, the procedure in rule 14.9 will apply.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
39
(4) The claimant may specify in his request for judgment— (a) the date by which the whole of the judgment debt is to be paid; or (b) the times and rate at which it is to be paid by instalments.
(5) On receipt of the request for judgment the court will enter judgment. (6) Judgment will be for the amount of the claim (less any payments made) and costs—
(a) to be paid by the date or at the rate specified in the request for judgment; or (b) if none is specified, immediately.
(Rule 14.14 deals with the circumstances in which judgment under this rule may include interest)
Admission of part of a claim for a specified amount of money
14.5. (1) This rule applies where— (a) the only remedy which the claimant is seeking is the payment of a specified amount of
money; and (b) the defendant admits part of the claim.
(2) The defendant may admit part of the claim by filing an admission in the relevant practice form. (3) On receipt of the admission, the court will serve a notice on the claimant requiring him to
return the notice stating that— (a) he accepts the amount admitted in satisfaction of the claim; (b) he does not accept the amount admitted by the defendant and wishes the proceedings to
continue; or (c) if the defendant has requested time to pay, he accepts the amount admitted in satisfaction
of the claim, but not the defendant’s proposals as to payment. (4) The claimant must—
(a) file the notice; and (b) serve a copy on the defendant,
within 14 days after it is served on him. (5) If the claimant does not file the notice within 14 days after it is served on him, the claim is
stayed(GL) until he files the notice. (6) If the claimant accepts the amount admitted in satisfaction of the claim, he may obtain
judgment by filing a request in the relevant practice form and, if he does so— (a) if the defendant has not requested time to pay, the procedure in paragraphs (7) to (9) will
apply; (b) if the defendant has requested time to pay, the procedure in rule 14.9 will apply.
(7) The claimant may specify in his request for judgment— (a) the date by which the whole of the judgment debt is to be paid; or (b) the time and rate at which it is to be paid by instalments.
(8) On receipt of the request for judgment, the court will enter judgment. (9) Judgment will be for the amount admitted (less any payments made) and costs—
(a) to be paid by the date or at the rate specified in the request for judgment; or (b) if none is specified, immediately.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
40
(If the claimant files notice under paragraph (3) that he wishes the proceedings to continue, the procedure which then follows is set out in Part 26)
Admission of liability to pay whole of claim for unspecified amount of money
14.6. (1) This rule applies where— (a) the only remedy which the claimant is seeking is the payment of money; (b) the amount of the claim is not specified; and (c) the defendant admits liability but does not offer to pay a specified amount of money in
satisfaction of the claim. (2) The defendant may admit the claim by filing an admission in the relevant practice form. (3) On receipt of the admission, the court will serve a copy on the claimant. (4) The claimant may obtain judgment by filing a request in the relevant practice form. (5) If the claimant does not file a request for judgment within 14 days after service of the
admission on him, the claim is stayed(GL) until he files the request. (6) On receipt of the request for judgment the court will enter judgment. (7) Judgment will be for an amount to be decided by the court and costs.
Admission of liability to pay claim for unspecified amount of money where defendant offers a sum in satisfaction of the claim
14.7. (1) This rule applies where— (a) the only remedy which the claimant is seeking is the payment of money; (b) the amount of the claim is not specified; and (c) the defendant—
(i) admits liability; and (ii) offers to pay a specified amount of money in satisfaction of the claim.
(2) The defendant may admit the claim by filing an admission in the relevant practice form. (3) On receipt of the admission, the court will serve a notice on the claimant requiring him to
return the notice stating whether or not he accepts the amount in satisfaction of the claim. (4) If the claimant does not file the notice within 14 days after it is served on him, the claim is
stayed(GL) until he files the notice. (5) If the claimant accepts the offer he may obtain judgment by filing a request in the relevant
practice form and if he does so— (a) if the defendant has not requested time to pay, the procedure in paragraphs (6) to (8) will
apply; (b) if the defendant has requested time to pay, the procedure in rule 14.9 will apply.
(6) The claimant may specify in his request for judgment— (a) the date by which the whole of the judgment debt is to be paid; or (b) the times and rate at which it is to be paid by instalments.
(7) On receipt of the request for judgment, the court will enter judgment. (8) Judgment will be for the amount offered by the defendant (less any payments made) and
costs— (a) to be paid on the date or at the rate specified in the request for judgment; or
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
41
(b) if none is specified, immediately. (9) If the claimant does not accept the amount offered by the defendant, he may obtain judgment
by filing a request in the relevant practice form. (10) Judgment under paragraph (9) will be for an amount to be decided by the court and costs.
Allocation of claims in relation to outstanding matters
14.8. Where the court enters judgment under rule 14.6 or 14.7 for an amount to be decided by the court it will—
(a) give any directions it considers appropriate; and (b) if it considers it appropriate, allocate the case.
Request for time to pay
14.9. (1) A defendant who makes an admission under rules 14.4, 14.5 or 14.7 (admission relating to a claim for a specified amount of money or offering to pay a specified amount of money) may make a request for time to pay.
(2) A request for time to pay is a proposal about the date of payment or a proposal to pay by instalments at the times and rate specified in the request.
(3) The defendant’s request for time to pay must be served or filed (as the case may be) with his admission.
(4) If the claimant accepts the defendant’s request, he may obtain judgment by filing a request in the relevant practice form.
(5) On receipt of the request for judgment, the court will enter judgment. (6) Judgment will be—
(a) where rule 14.4 applies, for the amount of the claim (less any payments made) and costs; (b) where rule 14.5 applies, for the amount admitted (less any payments made) and costs; or (c) where rule 14.7 applies, for the amount offered by the defendant (less any payments made)
and costs; and (in all cases) will be for payment at the time and rate specified in the defendant’s request for time to pay.
(Rule 14.10 sets out the procedure to be followed if the claimant does not accept the defendant’s request for time to pay)
Determination of rate of payment
14.10. (1) This rule applies where the defendant makes a request for time to pay under rule 14.9. (2) If the claimant does not accept the defendant’s proposals for payment, he must file a notice
in the relevant practice form. (3) Where the defendant’s admission was served direct on the claimant, a copy of the admission
and the request for time to pay must be filed with the claimant’s notice. (4) When the court receives the claimant’s notice, it will enter judgment for the amount admitted
(less any payments made) to be paid at the time and rate of payment determined by the court.
Determination of rate of payment by court officer
14.11. (1) A court officer may exercise the powers of the court under rule 14.10(4) where the amount outstanding (including costs) is not more than £50,000.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
42
(2) Where a court officer is to determine the time and rate of payment, he must do so without a hearing.
Determination of rate of payment by judge
14.12. (1) Where a judge is to determine the time and rate of payment, he may do so without a hearing.
(2) Where a judge is to determine the time and rate of payment at a hearing, the proceedings must be transferred automatically to the defendant’s home court if—
(a) the only claim is for a specified amount of money; (b) the defendant is an individual; (c) the claim has not been transferred to another defendant’s home court under rule 13.4
(application to set aside(GL) or vary default judgment—procedure) or rule 26.2 (automatic transfer);
(d) the claim was not started in the defendant’s home court; and (e) the claim was not started in a specialist list.
(Rule 2.3 explains which court is a defendant’s home court) (3) If there is to be a hearing to determine the time and rate of payment, the court must give each
party at least 7 days' notice of the hearing.
Right of re-determination
14.13. (1) Where— (a) a court officer has determined the time and rate of payment under rule 14.11; or (b) a judge has determined the time and rate of payment under rule 14.12 without a hearing,
either party may apply for the decision to be re-determined by a judge. (2) An application for re-determination must be made within 14 days after service of the
determination on the applicant. (3) Where an application for re-determination is made, the proceedings must be transferred to
the defendant’s home court if— (a) the only claim (apart from a claim for interest or costs) is for a specified amount of money; (b) the defendant is an individual; (c) the claim has not been transferred to another defendant’s home court under rule 13.4
(application to set aside(GL) or vary default judgment—procedure) or rule 26.2 (automatic transfer);
(d) the claim was not started in the defendant’s home court; and (e) the claim was not started in a specialist list.
(Rule 2.3 explains which court is a defendant’s home court)
Interest
14.14. (1) Judgment under rule 14.4 (admission of whole of claim for specified amount of money) shall include the amount of interest claimed to the date of judgment if—
(a) the particulars of claim include the details required by rule 16.4;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
43
(b) where interest is claimed under section 35A of the Supreme Court Act 1981(17) or section 69 of the County Courts Act 1984(18), the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; and
(c) the claimant’s request for judgment includes a calculation of the interest claimed for the period from the date up to which interest was stated to be calculated in the claim form to the date of the request for judgment.
(2) In any case where judgment is entered under rule 14.4 and the conditions in paragraph (1) are not satisfied judgment shall be for an amount of interest to be decided by the court.
(3) Where judgment is entered for an amount of interest to be decided by the court, the court will give directions for the management of the case.
PART 15 DEFENCE AND REPLY
Contents of this Part
Part not to apply where claimant uses Part 8 procedure
Rule 15.1
Filing a defence Rule 15.2
Consequence of not filing a defence Rule 15.3
The period for filing a defence Rule 15.4
Agreement extending the period for filing a defence
Rule 15.5
Service of copy of defence Rule 15.6
Making a counterclaim Rule 15.7
Reply to defence Rule 15.8
No statement of case after a reply to be filed without court’s permission
Rule 15.9
Claimant’s notice where defence is that money claimed has been paid
Rule 15.10
Claim stayed if it is not defended or admitted Rule 15.11
Part not to apply where claimant uses the Part 8 procedure
15.1. This Part does not apply where the claimant uses the procedure set out in Part 8 (alternative procedure for claims).
Filing a defence
15.2. A defendant who wishes to defend all or part of a claim must file a defence.
(Part 14 contains further provisions which apply where the defendant admits a claim)
(17) 1981 c. 54. Section 35A was inserted by the Administration of Justice Act 1982 (c. 53), section 15(1), Schedule 1, Part I. (18) 1984 c. 28. Section 69 was amended by the Courts and Legal Services Act 1990 (c. 41), section 125(3), Schedule 18, paragraph
46.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
44
Consequence of not filing a defence
15.3. If a defendant fails to file a defence, the claimant may obtain default judgment if Part 12 allows it.
The period for filing a defence
15.4. (1) The general rule is that the period for filing a defence is— (a) 14 days after service of the particulars of claim; or (b) if the defendant files an acknowledgment of service under Part 10, 28 days after service
of the particulars of claim.
(Rule 7.4 provides for the particulars of claim to be contained in or served with the claim form or served within 14 days of service of the claim form)
(2) The general rule is subject to the following rules— (a) RSC Order 11 r.1B (which specifies how the period for filing a defence is calculated where
the claim form is served out of the jurisdiction); (b) rule 11 (which provides that, where the defendant makes an application disputing the
court’s jurisdiction, he need not file a defence before the hearing); (c) rule 24.4(2) (which provides that, if the claimant applies for summary judgment before the
defendant has filed a defence, the defendant need not file a defence before the summary judgment hearing); and
(d) rule 6.16(4) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule).
Agreement extending the period for filing a defence
15.5. (1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.
(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.
Service of copy of defence
15.6. A copy of the defence must be served on every other party. (Part 16 sets out what a defence must contain)
Making a counterclaim
15.7. Part 20 applies to a defendant who wishes to make a counterclaim.
Reply to defence
15.8. If a claimant files a reply to the defence, he must— (a) file his reply when he files his allocation questionnaire; and (b) serve his reply on the other parties at the same time as he files it.
(Rule 26.3(6) requires the parties to file allocation questionnaires and specifies the period for doing so)
(Part 22 requires a reply to be verified by a statement of truth)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
45
No statement of case after a reply to be filed without court’s permission
15.9. A party may not file or serve any statement of case after a reply without the permission of the court.
Claimant’s notice where defence is that money claimed has been paid
15.10. (1) Where— (a) the only claim (apart from a claim for costs and interest) is for a specified amount of
money; and (b) the defendant states in his defence that he has paid to the claimant the amount claimed,
the court will send notice to the claimant requiring him to state in writing whether he wishes the proceedings to continue.
(2) When the claimant responds, he must serve a copy of his response on the defendant. (3) If the claimant fails to respond under this rule within 28 days after service of the court’s notice
on him the claim shall be stayed(GL).
(4) Where a claim is stayed under this rule any party may apply for the stay(GL) to be lifted.
(If the claimant files notice under this rule that he wishes the proceedings to continue, the procedure which then follows is set out in Part 26)
Claim stayed if it is not defended or admitted
15.11. (1) Where— (a) at least 6 months have expired since the end of the period for filing a defence specified
in rule 15.4; (b) no defendant has served or filed an admission or filed a defence or counterclaim; and (c) the claimant has not entered or applied for judgment under Part 12 (default judgment), or
Part 24 (summary judgment),
the claim shall be stayed(GL).
(2) Where a claim is stayed(GL) under this rule any party may apply for the stay to be lifted.
PART 16 STATEMENTS OF CASE
Contents of this Part
Part not to apply where claimant uses Part 8 procedure
Rule 16.1
Contents of the claim form Rule 16.2
Statement of value to be included in the claim form
Rule 16.3
Contents of the particulars of claim Rule 16.4
Contents of defence Rule 16.5
Defence of set-off Rule 16.6
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
46
Reply to defence Rule 16.7
Court’s power to dispense with statements of case
Rule 16.8
Part not to apply where claimant uses Part 8 procedure
16.1. This Part does not apply where the claimant uses the procedure set out in Part 8 (alternative procedure for claims).
Contents of the claim form
16.2. (1) The claim form must— (a) contain a concise statement of the nature of the claim; (b) specify the remedy which the claimant seeks; (c) where the claimant is making a claim for money, contain a statement of value in accordance
with rule 16.3; and (d) contain such other matters as may be set out in a practice direction.
(2) If the particulars of claim specified in rule 16.4 are not contained in or are not served with the claim form, the claimant must state on the claim form that the particulars of claim will follow.
(3) If the claimant is claiming in a representative capacity, the claim form must state what that capacity is.
(4) If the defendant is sued in a representative capacity, the claim form must state what that capacity is.
(5) The court may grant any remedy to which the claimant is entitled even if that remedy is not specified in the claim form.
(Part 22 requires a claim form to be verified by a statement of truth)
Statement of value to be included in the claim form
16.3. (1) This rule applies where the claimant is making a claim for money. (2) The claimant must, in the claim form, state—
(a) the amount of money which he is claiming; (b) that he expects to recover—
(i) not more than £5,000; (ii) more than £5,000 but not more than £15,000; or
(iii) more than £15,000; or (c) that he cannot say how much he expects to recover.
(3) In a claim for personal injuries, the claimant must also state in the claim form whether the amount which he expects to recover as general damages for pain, suffering and loss of amenity is—
(a) not more than £1,000; or (b) more than £1,000.
(4) In a claim which includes a claim by a tenant of residential premises against his landlord where the tenant is seeking an order requiring the landlord to carry out repairs or other work to the premises, the claimant must also state in the claim form whether the amount he expects to recover as damages in respect of those repairs or other work is—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
47
(a) not more than £1,000; or (b) more than £1,000.
(5) If the claim form is to be issued in the High Court it must, where this rule applies— (a) state that the claimant expects to recover more than £15,000; (b) state that some other enactment provides that the claim may be commenced only in the
High Court and specify that enactment; (c) if the claim is a claim for personal injuries state that the claimant expects to recover
£50,000 or more; or (d) state that the claim is to be in one of the specialist High Court lists and state which list.
(6) When calculating how much he expects to recover, the claimant must disregard any possibility —
(a) that he may recover— (i) interest;
(ii) costs; (b) that the court may make a finding of contributory negligence against him; (c) that the defendant may make a counterclaim or that the defence may include a set-off; or (d) that the defendant may be liable to pay an amount of money which the court awards to the
claimant to the Secretary of State for Social Security under section 6 of the Social Security (Recovery of Benefits) Act 1997(19).
(7) The statement of value in the claim form does not limit the power of the court to give judgment for the amount which it finds the claimant is entitled to.
Contents of the particulars of claim
16.4. (1) Particulars of claim must include— (a) a concise statement of the facts on which the claimant relies; (b) if the claimant is seeking interest, a statement to that effect and the details set out in
paragraph (2); (c) if the claimant is seeking aggravated damages(GL) or exemplary damages(GL), a statement
to that effect and his grounds for claiming them; (d) if the claimant is seeking provisional damages, a statement to that effect and his grounds
for claiming them; and (e) such other matters as may be set out in a practice direction.
(2) If the claimant is seeking interest he must— (a) state whether he is doing so—
(i) under the terms of a contract; (ii) under an enactment and if so which; or
(iii) on some other basis and if so what that basis is; and (b) if the claim is for a specified amount of money, state—
(i) the percentage rate at which interest is claimed; (ii) the date from which it is claimed;
(19) 1997 c. 27.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
48
(iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued;
(iv) the total amount of interest claimed to the date of calculation; and (v) the daily rate at which interest accrues after that date.
(Part 22 requires particulars of claim to be verified by a statement of truth)
Contents of defence
16.5. (1) In his defence, the defendant must state— (a) which of the allegations in the particulars of claim he denies; (b) which allegations he is unable to admit or deny, but which he requires the claimant to
prove; and (c) which allegations he admits.
(2) Where the defendant denies an allegation— (a) he must state his reasons for doing so; and (b) if he intends to put forward a different version of events from that given by the claimant,
he must state his own version. (3) A defendant who—
(a) fails to deal with an allegation; but (b) has set out in his defence the nature of his case in relation to the issue to which that
allegation is relevant, shall be taken to require that allegation to be proved.
(4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.
(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.
(6) If the defendant disputes the claimant’s statement of value under rule 16.3 he must— (a) state why he disputes it; and (b) if he is able, give his own statement of the value of the claim.
(7) If the defendant is defending in a representative capacity, he must state what that capacity is. (8) If the defendant has not filed an acknowledgment of service under Part 10, he must give an
address for service.
(Part 22 requires a defence to be verified by a statement of truth) (Rule 6.5 provides that an address for service must be within the jurisdiction)
Defence of set-off
16.6. Where a defendant— (a) contends he is entitled to money from the claimant; and (b) relies on this as a defence to the whole or part of the claim,
the contention may be included in the defence and set off against the claim, whether or not it is also a Part 20 claim.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
49
Reply to defence
16.7. (1) A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence.
(2) A claimant who— (a) files a reply to a defence; but (b) fails to deal with a matter raised in the defence,
shall be taken to require that matter to be proved.
(Part 22 requires a reply to be verified by a statement of truth)
Court’s power to dispense with statements of case
16.8. If a claim form has been— (a) issued in accordance with rule 7.2; and (b) served in accordance with rule 7.5,
the court may make an order that the claim will continue without any other statement of case.
PART 17 AMENDMENTS TO STATEMENTS OF CASE
Contents of this Part
Amendments to statements of case Rule 17.1
Power of court to disallow amendments made without permission
Rule 17.2
Amendments to statements of case with the permission of the court
Rule 17.3
Amendments to statements of case after the end of a relevant limitation period
Rule 17.4
Amendments to statements of case
17.1. (1) A party may amend his statement of case at any time before it has been served on any other party.
(2) If his statement of case has been served, a party may amend it only— (a) with the written consent of all the other parties; or (b) with the permission of the court.
(Part 19 also applies where the amendment relates to the addition, substitution or removal of a party)
(Part 22 requires amendments to a statement of case to be verified by a statement of truth unless the court orders otherwise)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
50
Power of court to disallow amendments made without permission
17.2. (1) If a party has amended his statement of case where permission of the court was not required, the court may disallow the amendment.
(2) A party may apply to the court for an order under paragraph (1) within 14 days of service of a copy of the amended statement of case on him.
Amendments to statements of case with the permission of the court
17.3. (1) Where the court gives permission for a party to amend his statement of case, it may give directions as to—
(a) amendments to be made to any other statement of case; and (b) service of any amended statement of case.
(2) The power of the court to give permission under this rule is subject to— (a) rule 19.1 (change of parties—generan( � (b) rule 19.4 (special provisions about adding or substituting parties after the end of a relevant
limitation period(GL)); and (c) rule 17.4 (amendments of statement of case after the end of a relevant limitation period).
Amendments to statements of case after the end of a relevant limitation period
17.4. (1) This rule applies where— (a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and (b) a period of limitation has expired under—
(i) the Limitation Act 1980(20); (ii) the Foreign Limitation Periods Act 1984(21);
(iii) section 190 of the Merchant Shipping Act 1995(22); or (iv) any other statutory provision.
(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.
(3) The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.
(4) The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.
(Rule 19.4 specifies the circumstances in which the court may allow a new party to be added or substituted after the end of a relevant limitation period(GL))
(20) 1980 c. 58. (21) 1984 c. 16. (22) 1995 c. 21.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
51
PART 18 FURTHER INFORMATION
Contents of this Part
Obtaining further information Rule 18.1
Restriction on the use of further information Rule 18.2
Obtaining further information
18.1. (1) The court may at any time order a party to— (a) clarify any matter which is in dispute in the proceedings; or (b) give additional information in relation to any such matter,
whether or not the matter is contained or referred to in a statement of case. (2) Paragraph (1) is subject to any rule of law to the contrary. (3) Where the court makes an order under paragraph (1), the party against whom it is made must—
(a) file his response; and (b) serve it on the other parties,
within the time specified by the court.
(Part 22 requires a response to be verified by a statement of truth)
Restriction on the use of further information
18.2. The court may direct that information provided by a party to another party (whether given voluntarily or following an order made under rule 18.1) must not be used for any purpose except for that of the proceedings in which it is given.
PART 19 ADDITION AND SUBSTITUTION OF PARTIES
Contents of this Part
Change of parties—general Rule 19.1
Provisions applicable where two or more persons are jointly entitled to a remedy
Rule 19.2
Procedure for adding and substituting parties Rule 19.3
Special provisions about adding or substituting parties after the end of a relevant limitation period
Rule 19.4
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
52
Change of parties—general
19.1. (1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.4 (special provisions about changing parties after the end of a relevant limitation period(GL)).
(2) The court may order a person to be added as a new party if— (a) it is desirable to add the new party so that the court can resolve all the matters in dispute
in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the
matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.
(3) The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings.
(4) The court may order a new party to be substituted for an existing one if— (a) the existing party’s interest or liability has passed to the new party; and (b) it is desirable to substitute the new party so that the court can resolve the matters in dispute
in the proceedings.
Provisions applicable where two or more persons are jointly entitled to a remedy
19.2. (1) Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise.
(2) If any person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.
(3) This rule does not apply in probate proceedings.
Procedure for adding and substituting parties
19.3. (1) An application for permission to remove, add or substitute a party may be made by— (a) an existing party; or (b) a person who wishes to become a party.
(2) An application for an order under rule 19.1(4) (substitution of new party where existing party’s interest or liability has passed)—
(a) may be made without notice; and (b) must be supported by evidence.
(3) Nobody may be added or substituted as a claimant unless— (a) he has given his consent in writing; and (b) that consent has been filed with the court.
(4) An order for the removal, addition or substitution of a party must be served on— (a) all parties to the proceedings; and (b) any other person affected by the order.
(5) When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions about—
(a) filing and serving the claim form on any new defendant; (b) serving relevant documents on the new party; and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
53
(c) the management of the proceedings.
Special provisions about adding or substituting parties after the end of a relevant limitation period
19.4. (1) This rule applies to a change of parties after the end of a period of limitation under— (a) the Limitation Act 1980(23); (b) the Foreign Limitation Periods Act 1984(24); (c) section 190 of the Merchant Shipping Act 1995(25); or (d) any other statutory provision.
(2) The court may add or substitute a party only if— (a) the relevant limitation period(GL) was current when the proceedings were started; and (b) the addition or substitution is necessary.
(3) The addition or substitution of a party is necessary only if the court is satisfied that— (a) the new party is to be substituted for a party who was named in the claim form in mistake
for the new party; (b) the claim cannot properly be carried on by or against the original party unless the new
party is added or substituted as claimant or defendant; or (c) the original party has died or had a bankruptcy order made against him and his interest or
liability has passed to the new party. (4) In addition, in a claim for personal injuries the court may add or substitute a party where
it directs that— (a) (i) section 11 (special time limit for claims for personal injuries); or
(ii) section 12 (special time limit for claims under fatal accidents legislation), of the Limitation Act 1980 shall not apply to the claim by or against the new party; or
(b) the issue of whether those sections apply shall be determined at trial.
(Rule 17.4 deals with other changes after the end of a relevant limitation period(GL))
PART 20 COUNTERCLAIMS AND OTHER ADDITIONAL CLAIMS
Contents of this Part
Purpose of Part 20 Rule 20.1
Meaning of “Part 20 claim” Rule 20.2
Part 20 claim to be treated as a claim for the purposes of the Rules
Rule 20.3
Defendant’s counterclaim against the claimant Rule 20.4
(23) 1980 c. 58. (24) 1984 c. 16. (25) 1995 c. 21.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
54
Counterclaim against a person other than the claimant
Rule 20.5
Defendant’s claim for contribution or indemnity from co-defendant
Rule 20.6
Procedure for making any other Part 20 claim Rule 20.7
Service of a Part 20 claim form Rule 20.8
Matters relevant to question of whether a Part 20 claim should be separate from main claim
Rule 20.9
Effect of service of a Part 20 claim Rule 20.10
Special provisions relating to default judgment on a Part 20 claim other than a counterclaim or a contribution or indemnity notice
Rule 20.11
Procedural steps on service of a Part 20 claim form on a non-party
Rule 20.12
Case management where there is a defence to a Part 20 claim form
Rule 20.13
Purpose of Part 20
20.1. The purpose of Part 20 is to enable Part 20 claims to be managed in the most convenient and effective manner.
Meaning of “Part 20 claim”
20.2. (1) A Part 20 claim is any claim other than a claim by a claimant against a defendant and includes—
(a) a counterclaim by a defendant against the claimant or against the claimant and some other person;
(b) a claim by a defendant against any person (whether or not already a party) for contribution (GL) or indemnity (GL) or some other remedy; and
(c) where a Part 20 claim has been made against a person who is not already a party, any claim made by that person against any other person (whether or not already a party).
(2) In this Part “Part 20 claimant” means a person who makes a Part 20 claim.
Part 20 claim to be treated as a claim for the purposes of the Rules
20.3. (1) A Part 20 claim shall be treated as if it were a claim for the purposes of these Rules, except as provided by this Part.
(2) The following rules do not apply to Part 20 claims— (a) rules 7.5 and 7.6 (time within which a claim form may be served); (b) rule 16.3(5) (statement of value where claim to be issued in the High Court); and (c) Part 26 (Case management—preliminary stage).
(3) The following rules do not apply to Part 20 claims except where the Part 20 claim is a counterclaim—
(a) Part 12 (default judgment); and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
55
(b) Part 14 (admissions) except rules 14.1(1) and (2) (which provide that a party may admit in writing the truth of another party’s case) and 14.3 (admission by notice in writing— application for judgment).
(Rule 20.11 makes special provision for default judgment on a Part 20 claim)
Defendant’s counterclaim against the claimant
20.4. (1) A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.
(2) A defendant may make a counterclaim against a claimant— (a) without the court’s permission if he files it with his defence; or (b) at any other time with the court’s permission.
(Part 15 makes provision for a defence to a claim and applies to a defence to a counterclaim by virtue of rule 20.3)
(3) Part 10 (acknowledgment of service) does not apply to a claimant who wishes to defend a counterclaim.
Counterclaim against a person other than the claimant
20.5. (1) A defendant who wishes to counterclaim against a person other than the claimant must apply to the court for an order that that person be added as defendant to the counterclaim.
(2) An application for an order under paragraph (1) may be made without notice unless the court directs otherwise.
(3) Where the court makes an order under paragraph (1), it will give directions as to the management of the case.
Defendant’s claim for contribution or indemnity from co-defendant
20.6. A defendant who has filed an acknowledgment of service or a defence may make a Part 20 claim for contribution(GL) or indemnity(GL) against another defendant by—
(a) filing a notice containing a statement of the nature and grounds of his claim; and (b) serving that notice on the other defendant.
Procedure for making any other Part 20 claim
20.7. (1) This rule applies to any Part 20 claim except— (a) a counterclaim; and (b) a claim for contribution(GL) or indemnity(GL) made in accordance with rule 20.6.
(2) A Part 20 claim is made when the court issues a Part 20 claim form. (3) A defendant may make a Part 20 claim—
(a) without the court’s permission if the Part 20 claim is issued before or at the same time as he files his defence;
(b) at any other time with the court’s permission.
(Rule 15.4 sets out the period for filing a defence) (4) Particulars of a Part 20 claim must be contained in or served with the Part 20 claim form.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
56
(5) An application for permission to make a Part 20 claim may be made without notice, unless the court directs otherwise.
Service of a Part 20 claim form
20.8. (1) Where a Part 20 claim may be made without the court’s permission, the Part 20 claim form must—
(a) in the case of a counterclaim, be served on every other party when a copy of the defence is served;
(b) in the case of any other Part 20 claim, be served on the person against whom it is made within 14 days after the date on which the party making the Part 20 claim files his defence.
(2) Paragraph (1) does not apply to a claim for contribution(GL) or indemnity(GL) made in accordance with rule 20.6.
(3) Where the court gives permission to make a Part 20 claim it will at the same time give directions as to the service of the Part 20 claim.
Matters relevant to question of whether a Part 20 claim should be separate from main claim
20.9. (1) This rule applies where the court is considering whether to— (a) permit a Part 20 claim to be made; (b) dismiss a Part 20 claim; or (c) require a Part 20 claim to be dealt with separately from the claim by the claimant against
the defendant.
(Rule 3.1(2)(e) and (j) deal respectively with the court’s power to order that part of proceedings be dealt with as separate proceedings and to decide the order in which issues are to be tried)
(2) The matters to which the court may have regard include— (a) the connection between the Part 20 claim and the claim made by the claimant against the
defendant; (b) whether the Part 20 claimant is seeking substantially the same remedy which some other
party is claiming from him; and (c) whether the Part 20 claimant wants the court to decide any question connected with the
subject matter of the proceedings— (i) not only between existing parties but also between existing parties and a person not
already a party; or (ii) against an existing party not only in a capacity in which he is already a party but
also in some further capacity.
Effect of service of a Part 20 claim
20.10. (1) A person on whom a Part 20 claim is served becomes a party to the proceedings if he is not a party already.
(2) When a Part 20 claim is served on an existing party for the purpose of requiring the court to decide a question against that party in a further capacity, that party also becomes a party in the further capacity specified in the Part 20 claim.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
57
Special provisions relating to default judgment on a Part 20 claim other than a counterclaim or a contribution or indemnity notice
20.11. (1) This rule applies if— (a) the Part 20 claim is not—
(i) a counterclaim; or (ii) a claim by a defendant for contribution(GL) or indemnity(GL) against another
defendant under rule 20.6; and (b) the party against whom a Part 20 claim is made fails to file an acknowledgment of service
or defence in respect of the Part 20 claim. (2) The party against whom the Part 20 claim is made—
(a) is deemed to admit the Part 20 claim, and is bound by any judgment or decision in the main proceedings in so far as it is relevant to any matter arising in the Part 20 claim;
(b) subject to paragraph (3), if default judgment under Part 12 is given against the Part 20 claimant, the Part 20 claimant may obtain judgment in respect of the Part 20 claim by filing a request in the relevant practice form.
(3) A Part 20 claimant may not enter judgment under paragraph (2)(b) without the court’s permission if—
(a) he has not satisfied the default judgment which has been given against him; or (b) he wishes to obtain judgment for any remedy other than a contribution(GL) or indemnity(GL).
(4) An application for the court’s permission under paragraph (3) may be made without notice unless the court directs otherwise.
(5) The court may at any time set aside(GL) or vary a judgment entered under paragraph (2)(b).
Procedural steps on service of a Part 20 claim form on a non-party
20.12. (1) Where a Part 20 claim form is served on a person who is not already a party it must be accompanied by—
(a) a form for defending the claim; (b) a form for admitting the claim; (c) a form for acknowledging service; and (d) a copy of— (i) every statement of case which has already been served in the proceedings; and
(ii) such other documents as the court may direct. (2) A copy of the Part 20 claim form must be served on every existing party.
Case management where there is a defence to a Part 20 claim form
20.13. (1) Where a defence is filed to a Part 20 claim the court must consider the future conduct of the proceedings and give appropriate directions.
(2) In giving directions under paragraph (1) the court must ensure that, so far as practicable, the Part 20 claim and the main claim are managed together.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
58
PART 21 CHILDREN AND PATIENTS
Contents of this Part
Scope of this Part Rule 21.1
Requirement for litigation friend in proceedings by or against children and patients
Rule 21.2
Stage of proceedings at which a litigation friend becomes necessary
Rule 21.3
Who may be a litigation friend without a court order
Rule 21.4
How a person becomes a litigation friend without a court order
Rule 21.5
How a person becomes a litigation friend by court order
Rule 21.6
Court’s power to change litigation friend and to prevent person acting as litigation friend
Rule 21.7
Appointment of litigation friend by court order —supplementary
Rule 21.8
Procedure where appointment of litigation friend ceases
Rule 21.9
Compromise etc. by or on behalf of child or patient
Rule 21.10
Control of money recovered by or on behalf of child or patient
Rule 21.11
Appointment of guardian of child’s estate Rule 21.12
Scope of this Part
21.1. (1) This Part— (a) contains special provisions which apply in proceedings involving children and patients;
and (b) sets out how a person becomes a litigation friend.
(2) In this Part— (a) “child” means a person under 18; and (b) “patient” means a person who by reason of mental disorder within the meaning of the
Mental Health Act 1983(26) is incapable of managing and administering his own affairs.
(Rule 6.6 contains provisions about the service of documents on children and patients) (Rule 48.5 deals with costs where money is payable by or to a child or patient)
(26) 1983 c. 20.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
59
Requirement for litigation friend in proceedings by or against children and patients
21.2. (1) A patient must have a litigation friend to conduct proceedings on his behalf. (2) A child must have a litigation friend to conduct proceedings on his behalf unless the court
makes an order under paragraph (3). (3) The court may make an order permitting the child to conduct proceedings without a litigation
friend. (4) An application for an order under paragraph (3)—
(a) may be made by the child; (b) if the child already has a litigation friend, must be made on notice to the litigation friend;
and (c) if the child has no litigation friend, may be made without notice.
(5) Where— (a) the court has made an order under paragraph (3); and (b) it subsequently appears to the court that it is desirable for a litigation friend to conduct
the proceedings on behalf of the child, the court may appoint a person to be the child’s litigation friend.
Stage of proceedings at which a litigation friend becomes necessary
21.3. (1) This rule does not apply where the court has made an order under rule 21.2(3). (2) A person may not, without the permission of the court—
(a) make an application against a child or patient before proceedings have started; or (b) take any step in proceedings except—
(i) issuing and serving a claim form; or (ii) applying for the appointment of a litigation friend under rule 21.6,
until the child or patient has a litigation friend. (3) If a party becomes a patient during proceedings, no party may take any step in the proceedings
without the permission of the court until the patient has a litigation friend. (4) Any step taken before a child or patient has a litigation friend shall be of no effect unless
the court otherwise orders.
Who may be a litigation friend without a court order
21.4. (1) This rule does not apply if the court has appointed a person to be a litigation friend. (2) A person authorised under Part VII of the Mental Health Act 1983 to conduct legal
proceedings in the name of a patient or on his behalf is entitled to be the litigation friend of the patient in any proceedings to which his authority extends.
(3) If nobody has been appointed by the court or, in the case of a patient, authorised under Part VII, a person may act as a litigation friend if he—
(a) can fairly and competently conduct proceedings on behalf of the child or patient; (b) has no interest adverse to that of the child or patient; and (c) where the child or patient is a claimant, undertakes to pay any costs which the child or
patient may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or patient.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
60
How a person becomes a litigation friend without a court order
21.5. (1) If the court has not appointed a litigation friend, a person who wishes to act as a litigation friend must follow the procedure set out in this rule.
(2) A person authorised under Part VII of the Mental Health Act 1983 must file an official copy(GL) of the order or other document which constitutes his authorisation to act.
(3) Any other person must file a certificate of suitability stating that he satisfies the conditions specified in rule 21.4(3).
(4) A person who is to act as a litigation friend for a claimant must file— (a) the authorisation; or (b) the certificate of suitability, at the time when the claim is made.
(5) A person who is to act as a litigation friend for a defendant must file— (a) the authorisation; or (b) the certificate of suitability,
at the time when he first takes a step in the proceedings on behalf of the defendant. (6) The litigation friend must—
(a) serve the certificate of suitability on every person on whom, in accordance with rule 6.6 (service on parent, guardian etc.), the claim form should be served; and
(b) file a certificate of service when he files the certificate of suitability.
(Rule 6.10 sets out the details to be contained in a certificate of service)
How a person becomes a litigation friend by court order
21.6. (1) The court may make an order appointing a litigation friend. (2) An application for an order appointing a litigation friend may be made by—
(a) a person who wishes to be the litigation friend; or (b) a party.
(3) Where— (a) a person makes a claim against a child or patient; (b) the child or patient has no litigation friend; (c) the court has not made an order under rule 21.2(3) (order that a child can act without a
litigation friend); and (d) either—
(i) someone who is not entitled to be a litigation friend files a defence; or (ii) the claimant wishes to take some step in the proceedings,
the claimant must apply to the court for an order appointing a litigation friend for the child or patient.
(4) An application for an order appointing a litigation friend must be supported by evidence. (5) The court may not appoint a litigation friend under this rule unless it is satisfied that the
person to be appointed complies with the conditions specified in rule 21.4(3).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
61
Court’s power to change litigation friend and to prevent person acting as litigation friend
21.7. (1) The court may— (a) direct that a person may not act as a litigation friend; (b) terminate a litigation friend’s appointment; (c) appoint a new litigation friend in substitution for an existing one.
(2) An application for an order under paragraph (1) must be supported by evidence. (3) The court may not appoint a litigation friend under this rule unless it is satisfied that the
person to be appointed complies with the conditions specified in rule 21.4(3).
Appointment of litigation friend by court order—supplementary
21.8. (1) An application for an order under rule 21.6 or 21.7 must be served on every person on whom, in accordance with rule 6.6 (service on parent, guardian etc.), the claim form should be served.
(2) Where an application for an order under rule 21.6 is in respect of a patient, the application must also be served on the patient unless the court orders otherwise.
(3) An application for an order under rule 21.7 must also be served on— (a) the person who is the litigation friend, or who is purporting to act as the litigation friend,
when the application is made; and (b) the person who it is proposed should be the litigation friend, if he is not the applicant.
(4) On an application for an order under rule 21.6 or 21.7, the court may appoint the person proposed or any other person who complies with the conditions specified in rule 21.4(3).
Procedure where appointment of litigation friend ceases
21.9. (1) When a child who is not a patient reaches the age of 18, a litigation friend’s appointment ceases.
(2) When a party ceases to be a patient, the litigation friend’s appointment continues until it is ended by a court order.
(3) An application for an order under paragraph (2) may be made by— (a) the former patient; (b) the litigation friend; or (c) a party.
(4) The child or patient in respect of whom the appointment to act has ceased must serve notice on the other parties—
(a) stating that the appointment of his litigation friend to act has ceased; (b) giving his address for service; and (c) stating whether or not he intends to carry on the proceedings.
(5) If he does not do so within 28 days after the day on which the appointment of the litigation friend ceases the court may, on application, strike out(GL) any claim or defence brought by him.
(6) The liability of a litigation friend for costs continues until— (a) the person in respect of whom his appointment to act has ceased serves the notice referred
to in paragraph (4); or (b) the litigation friend serves notice on the parties that his appointment to act has ceased.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
62
Compromise etc. by or on behalf of child or patient
21.10. (1) Where a claim is made— (a) by or on behalf of a child or patient; or (b) against a child or patient,
no settlement, compromise or payment and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or patient, without the approval of the court.
(2) Where— (a) before proceedings in which a claim is made by or on behalf of, or against a child or
patient (whether alone or with any other person) are begun, an agreement is reached for the settlement of the claim; and
(b) the sole purpose of proceedings on that claim is to obtain the approval of the court to a settlement or compromise of the claim,
the claim must— (i) be made using the procedure set out in Part 8 (alternative procedure for claims); and
(ii) include a request to the court for approval of the settlement or compromise.
(Rule 48.5 contains provisions about costs where money is payable to a child or patient)
Control of money recovered by or on behalf of child or patient
21.11. (1) Where in any proceedings— (a) money is recovered by or on behalf of or for the benefit of a child or patient; or (b) money paid into court is accepted by or on behalf of a child or patient, the money shall
be dealt with in accordance with directions given by the court under this rule and not otherwise.
(2) Directions given under this rule may provide that the money shall be wholly or partly paid into court and invested or otherwise dealt with.
Appointment of guardian of child’s estate
21.12. (1) The court may appoint the Official Solicitor to be a guardian of a child’s estate where— (a) money is paid into court on behalf of the child in accordance with directions given under
rule 21.11 (control of money received by a child or patient); (b) the Criminal Injuries Compensation Board or the Criminal Injuries Compensation
Authority notifies the court that it has made or intends to make an award to the child; (c) a court or tribunal outside England and Wales notifies the court that it has ordered or
intends to order that money be paid to the child; (d) the child is absolutely entitled to the proceeds of a pension fund; or (e) in any other case, such an appointment seems desirable to the court.
(2) The court may not appoint the Official Solicitor under this rule unless— (a) the persons with parental responsibility (within the meaning of section 3 of the Children
Act 1989(27)) agree; or (b) the court considers that their agreement can be dispensed with.
(27) 1989 c. 41.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
63
(3) The Official Solicitor’s appointment may continue only until the child reaches 18.
PART 22 STATEMENTS OF TRUTH
Contents of this Part
Documents to be verified by a statement of truth
Rule 22.1
Failure to verify a statement of case Rule 22.2
Failure to verify a witness statement Rule 22.3
Power of the court to require a document to be verified
Rule 22.4
Documents to be verified by a statement of truth
22.1. (1) The following documents must be verified by a statement of truth— (a) a statement of case; (b) a response complying with an order under rule 18.1 to provide further information; and (c) a witness statement.
(2) Where a statement of case is amended, the amendments must be verified by a statement of truth unless the court orders otherwise.
(Part 17 provides for amendments to statements of case) (3) If an applicant wishes to rely on matters set out in his application notice as evidence, the
application notice must be verified by a statement of truth. (4) Subject to paragraph (5), a statement of truth is a statement that—
(a) the party putting forward the document; or (b) in the case of a witness statement, the maker of the witness statement,
believes the facts stated in the document are true. (5) If a party is conducting proceedings with a litigation friend, the statement of truth in—
(a) a statement of case; (b) a response; or (c) an application notice, is a statement that the litigation friend believes the facts stated in the document being verified are true.
(6) The statement of truth must be signed by— (a) in the case of a statement of case, a response or an application—
(i) the party or litigation friend; or (ii) the legal representative on behalf of the party or litigation friend; and
(b) in the case of a witness statement, the maker of the statement. (7) A statement of truth which is not contained in the document which it verifies, must clearly
identify that document.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
64
(8) A statement of truth in a statement of case may be made by— (a) a person who is not a party; or (b) by two parties jointly, where this is permitted by a relevant practice direction.
Failure to verify a statement of case
22.2. (1) If a party fails to verify his statement of case by a statement of truth— (a) the statement of case shall remain effective unless struck out; but (b) the party may not rely on the statement of case as evidence of any of the matters set out in it.
(2) The court may strike out(GL) a statement of case which is not verified by a statement of truth. (3) Any party may apply for an order under paragraph (2).
Failure to verify a witness statement
22.3. If the maker of a witness statement fails to verify the witness statement by a statement of truth the court may direct that it shall not be admissible as evidence.
Power of the court to require a document to be verified
22.4. (1) The court may order a person who has failed to verify a document in accordance with rule 22.1 to verify the document.
(2) Any party may apply for an order under paragraph (1).
PART 23 GENERAL RULES ABOUT APPLICATIONS FOR COURT ORDERS
Contents of this Part
Meaning of “application notice” and “respondent”
Rule 23.1
Where to make an application Rule 23.2
Application notice to be filed Rule 23.3
Notice of an application Rule 23.4
Time when an application is made Rule 23.5
What an application notice must include Rule 23.6
Service of a copy of an application notice Rule 23.7
Applications which may be dealt with without a hearing
Rule 23.8
Service of application where application made without notice
Rule 23.9
Application to set aside or vary order made without notice
Rule 23.10
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
65
Power of the court to proceed in the absence of a party
Rule 23.11
Meaning of “application notice” and “respondent”
23.1. In this Part— “application notice” means a document in which the applicant states his intention to seek a court order; and “respondent” means— (a) the person against whom the order is sought; and (b) such other person as the court may direct.
Where to make an application
23.2. (1) The general rule is that an application must be made to the court where the claim was started.
(2) If a claim has been transferred to another court since it was started, an application must be made to the court to which the claim has been transferred.
(3) If the parties have been notified of a fixed date for the trial, an application must be made to the court where the trial is to take place.
(4) If an application is made before a claim has been started, it must be made to the court where it is likely that the claim to which the application relates will be started unless there is good reason to make the application to a different court.
(5) If an application is made after proceedings to enforce judgment have begun, it must be made to any court which is dealing with the enforcement of the judgment unless any rule or practice direction provides otherwise.
Application notice to be filed
23.3. (1) The general rule is that an applicant must file an application notice. (2) An applicant may make an application without filing an application notice if—
(a) this is permitted by a rule or practice direction; or (b) the court dispenses with the requirement for an application notice.
Notice of an application
23.4. (1) The general rule is that a copy of the application notice must be served on each respondent.
(2) An application may be made without serving a copy of the application notice if this is permitted by—
(a) a rule; (b) a practice direction; or (c) a court order.
(Rule 23.7 deals with service of a copy of the application notice)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
66
Time when an application is made
23.5. Where an application must be made within a specified time, it is so made if the application notice is received by the court within that time.
What an application notice must include
23.6. An application notice must state— (a) what order the applicant is seeking; and (b) briefly, why the applicant is seeking the order.
(Part 22 requires an application notice to be verified by a statement of truth if the applicant wishes to rely on matters set out in his application notice as evidence)
Service of a copy of an application notice
23.7. (1) A copy of the application notice— (a) must be served as soon as practicable after it is filed; and (b) except where another time limit is specified in these Rules or a practice direction, must in
any event be served at least 3 days before the court is to deal with the application. (2) If a copy of the application notice is to be served by the court, the applicant must, when he
files the application notice, file a copy of any written evidence in support. (3) When a copy of an application notice is served it must be accompanied by—
(a) a copy of any written evidence in support; and (b) a copy of any draft order which the applicant has attached to his application.
(4) If— (a) an application notice is served; but (b) the period of notice is shorter than the period required by these Rules or a practice direction,
the court may direct that, in the circumstances of the case, sufficient notice has been given and hear the application.
(5) This rule does not require written evidence— (a) to be filed if it has already been filed; or (b) to be served on a party on whom it has already been served.
(Part 6 contains the general rules about service of documents including who must serve a copy of the application notice)
Applications which may be dealt with without a hearing
23.8. The court may deal with an application without a hearing if— (a) the parties agree as to the terms of the order sought; (b) the parties agree that the court should dispose of the application without a hearing, or (c) the court does not consider that a hearing would be appropriate.
Service of application where application made without notice
23.9. (1) This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
67
(2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person—
(a) against whom the order was made; and (b) against whom the order was sought.
(3) The order must contain a statement of the right to make an application to set aside(GL) or vary the order under rule 23.10.
Application to set aside or vary order made without notice
23.10. (1) A person served with an order made on an application but on whom a copy of the application notice was not served may apply to the court for the order to be set aside(GL) or varied.
(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.
Power of the court to proceed in the absence of a party
23.11. (1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence.
(2) Where— (a) the applicant or any respondent fails to attend the hearing of an application; and (b) the court makes an order at the hearing,
the court may, on application or of its own initiative, re-list the application.
(Part 40 deals with service of orders)
PART 24 SUMMARY JUDGMENT
Contents of this Part
Scope of this Part Rule 24.1
Grounds for summary judgment Rule 24.2
Types of proceedings in which summary judgment is available
Rule 24.3
ProcedureRule 24.4
Evidence for the purposes of a summary judgment hearing
Rule 24.5
Court’s powers when it determines a summary judgment application
Rule 24.6
Scope of this Part
24.1. This Part sets out a procedure by which the court may decide a claim or a particular issue without a trial.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
68
Grounds for summary judgment
24.2. The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if—
(a) it considers that— (i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other reason why the case or issue should be disposed of at a trial.
(Rule 3.4 makes provision for the court to strike out(GL) a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim)
Types of proceedings in which summary judgment is available
24.3. (1) The court may give summary judgment against a claimant in any type of proceedings. (2) The court may give summary judgment against a defendant in any type of proceedings except
— (a) proceedings for possession of residential premises against a tenant, a mortgagor or a person
holding over after the end of his tenancy; and (b) proceedings for an admiralty claim in rem.
Procedure
24.4. (1) A claimant may not apply for summary judgment until the defendant against whom the application is made has filed—
(a) an acknowledgement of service; or (b) a defence,
unless— (i) the court gives permission; or (ii) a practice direction provides otherwise.
(Rule 10.3 sets out the period for filing an acknowledgment of service and rule 15.4 the period for filing a defence)
(2) If a claimant applies for summary judgment before a defendant against whom the application is made has filed a defence, that defendant need not file a defence before the hearing.
(3) Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the court’s own initiative) must be given at least 14 days' notice of—
(a) the date fixed for the hearing; and (b) the issues which it is proposed that the court will decide at the hearing.
(Part 23 contains the general rules about how to make an application)
(Rule 3.3 applies where the court exercises its powers of its own initiative)
Evidence for the purposes of a summary judgment hearing
24.5. (1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must—
(a) file the written evidence; and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
69
(b) serve copies on every other party to the application, at least 7 days before the summary judgment hearing.
(2) If the applicant wishes to rely on written evidence in reply, he must— (a) file the written evidence; and (b) serve a copy on the respondent,
at least 3 days before the summary judgment hearing. (3) Where a summary judgment hearing is fixed by the court of its own initiative—
(a) any party who wishes to rely on written evidence at the hearing must— (i) file the written evidence; and
(ii) unless the court orders otherwise, serve copies on every other party to the proceedings,
at least 7 days before the date of the hearing; (b) any party who wishes to rely on written evidence at the hearing in reply to any other party’s
written evidence must— (i) file the written evidence in reply; and
(ii) unless the court orders otherwise serve copies on every other party to the proceedings,
at least 3 days before the date of the hearing. (4) This rule does not require written evidence—
(a) to be filed if it has already been filed; or (b) to be served on a party on whom it has already been served.
Court’s powers when it determines a summary judgment application
24.6. When the court determines a summary judgment application it may— (a) give directions as to the filing and service of a defence; (b) give further directions about the management of the case.
(Rule 3.1(3) provides that the court may attach conditions when it makes an order)
25.2 INTERIM REMEDIES
Contents of this Part
Orders for interim remedies Rule 25.1
Time when an order for an interim remedy may be made
Rule 25.2
How to apply for an interim remedy Rule 25.3
Application for an interim remedy where there is no related claim
Rule 25.4
Inspection of property before commencement or against a non-party
Rule 25.5
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
70
Interim payments—general procedure Rule 25.6
Interim payments—conditions to be satisfied and matters to be taken into ac count
Rule 25.7
Powers of court where it has made an order for interim payment
Rule 25.8
Restriction on disclosure of an interim payment Rule 25.9
Interim injunction to cease if claim stayed Rule 25.10
Orders for interim remedies
25.1. (1) The court may grant the following interim remedies— (a) an interim injunction(GN( � (b) an interim declaration; (c) an order—
(i) for the detention, custody or preservation of relevant property; (ii) for the inspection of relevant property;
(iii) for the taking of a sample of relevant property; (iv) for the carrying out of an experiment on or with relevant property; (v) for the sale of relevant property which is of a perishable nature or which for any
other good reason it is desirable to sell quickly; and (vi) for the payment of income from relevant property until a claim is decided;
(d) an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out an order under sub-paragraph (c);
(e) an order under section 4 of the Torts (Interference with Goods) Act 1977(28) to deliver up goods;
(f) an order (referred to as a “freezing injunction(GL)”)— (i) restraining a party from removing from the jurisdiction assets located there; or
(ii) restraining a party from dealing with any assets whether located within the jurisdiction or not;
(g) an order directing a party to provide information about the location of relevant property or assets or to provide information about relevant property or assets which are or may be the subject of an application for a freezing injunction(GN( �
(h) an order (referred to as a “search order”) under section 7 of the Civil Procedure Act 1997(29) (order requiring a party to admit another party to premises for the purpose of preserving evidence etc.);
(i) an order under section 33 of the Supreme Court Act 1981(30) or section 52 of the County Courts Act 1984(31) (order for disclosure of documents or inspection of property before a claim has been made);
(28) 1977 c. 32; section 4 was amended by the Supreme Court Act 1981 (c. 54), section 152(1), Schedule 5; by the County Courts Act 1984 (c. 28), section 148(1), Schedule 2, Part V, paragraph 64 and by S.I.1980/397 (NI3).
(29) 1997 c. 12. (30) 1981 c. 54. Section 33 was amended by S.I. 1998/ 2940. (31) 1984 c. 28. Section 52 was amended by the Courts and Legal Services Act 1990 (c. 41), Schedule 18, paragraph 43 and by
S.I. 1998/2940.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
71
(j) an order under section 34 of the Supreme Court Act 1981(32) or section 53 of the County Courts Act 1984(33) (order in certain proceedings for disclosure of documents or inspection of property against a non-party);
(k) an order (referred to as an order for interim payment) under rule 25.6 for payment by a defendant on account of any damages, debt or other sum (except costs) which the court may hold the defendant liable to pay;
(l) an order for a specified fund to be paid into court or otherwise secured, where there is a dispute over a party’s right to the fund;
(m) an order permitting a party seeking to recover personal property to pay money into court pending the outcome of the proceedings and directing that, if he does so, the property shall be given up to him; and
(n) an order directing a party to prepare and file accounts relating to the dispute.
(Rule 34.2 provides for the court to issue a witness summons requiring a witness to produce documents to the court at the hearing or on such date as the court may direct)
(2) In paragraph (1)(c) and (g), “relevant property” means property (including land) which is the subject of a claim or as to which any question may arise on a claim.
(3) The fact that a particular kind of interim remedy is not listed in paragraph (1) does not affect any power that the court may have to grant that remedy.
(4) The court may grant an interim remedy whether or not there has been a claim for a final remedy of that kind.
Time when an order for an interim remedy may be made
25.2. (1) An order for an interim remedy may be made at any time, including— (a) before proceedings are started; and (b) after judgment has been given.
(Rule 7.2 provides that proceedings are started when the court issues a claim form) (2) However—
(a) paragraph (1) is subject to any rule, practice direction or other enactment which provides otherwise;
(b) the court may grant an interim remedy before a claim has been made only if— (i) the matter is urgent; or
(ii) it is otherwise desirable to do so in the interests of justice; and (c) unless the court otherwise orders, a defendant may not apply for any of the orders listed
in rule 25.1(1) before he has filed either an acknowledgement of service or a defence.
(Part 10 provides for filing an acknowledgment of service and Part 15 for filing a defence) (3) Where the court grants an interim remedy before a claim has been commenced, it may give
directions requiring a claim to be commenced. (4) In particular, the court need not direct that a claim be commenced where the application is
made under section 33 of the Supreme Court Act 1981 or section 52 of the County Courts Act 1984 (order for disclosure, inspection etc. before commencement of a claim).
(32) 1981 c. 54. Section 34 was amended by S.I. 1998/ 2940. (33) 1984 c. 28. Section 53 was amended by the Courts and Legal Services Act 1990 (c. 41), Schedule 18, paragraph 44 and by
S.I. 1998/2940.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
72
How to apply for an interim remedy
25.3. (1) The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice.
(2) An application for an interim remedy must be supported by evidence, unless the court orders otherwise.
(3) If the applicant makes an application without giving notice, the evidence in support of the application must state the reasons why notice has not been given.
(Part 3 lists general powers of the court) (Part 23 contains general rules about making an application)
Application for an interim remedy where there is no related claim
25.4. (1) This rule applies where a party wishes to apply for an interim remedy but— (a) the remedy is sought in relation to proceedings which are taking place, or will take place,
outside the jurisdiction; or (b) the application is made under section 33 of the Supreme Court Act 1981 or section 52 of
the County Courts Act 1984 (order for disclosure, inspection etc. before commencement) before a claim has been commenced.
(2) An application under this rule must be made in accordance with the general rules about applications contained in Part 23.
(The following provisions are also relevant— Rule 25.5 (inspection of property before commencement or against a non-party) Rule 31.16 (orders for disclosure of documents before proceedings start) Rule 31.17 (orders for disclosure of documents against a person not a party))
Inspection of property before commencement or against a non-party
25.5. (1) This rule applies where a person makes an application under— (a) section 33(1) of the Supreme Court Act 1981 or section 52(1) of the County Courts Act
1984 (inspection etc. of property before commencement); (b) section 34(3) of the Supreme Court Act 1981 or section 53(3) of the County Courts Act
1984 (inspection etc. of property against a non-party). (2) The evidence in support of such an application must show, if practicable by reference to
any statement of case prepared in relation to the proceedings or anticipated proceedings, that the property—
(a) is or may become the subject matter of such proceedings; or (b) is relevant to the issues that will arise in relation to such proceedings.
(3) A copy of the application notice and a copy of the evidence in support must be served on— (a) the person against whom the order is sought; and (b) in relation to an application under section 34(3) of the Supreme Court Act 1981 or
section 53(3) of the County Courts Act 1984, every party to the proceedings other than the applicant.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
73
Interim payments—general procedure
25.6. (1) The claimant may not apply for an order for an interim payment before the end of the period for filing an acknowledgement of service applicable to the defendant against whom the application is made.
(Rule 10.3 sets out the period for filing an acknowledgement of service) (Rule 25.1(1)(k) defines an interim payment)
25.6. (2) The claimant may make more than one application for an order for an interim payment. (3) A copy of an application notice for an order for an interim payment must—
(a) be served at least 14 days before the hearing of the application; and (b) be supported by evidence.
(4) If the respondent to an application for an order for an interim payment wishes to rely on written evidence at the hearing, he must—
(a) file the written evidence; and (b) serve copies on every other party to the application,
at least 7 days before the hearing of the application. (5) If the applicant wishes to rely on written evidence in reply, he must—
(a) file the written evidence; and (b) serve a copy on the respondent, at least 3 days before the hearing of the application.
(6) This rule does not require written evidence— (a) to be filed if it has already been filed; or (b) to be served on a party on whom it has already been served.
(7) The court may order an interim payment in one sum or in instalments.
(Part 23 contains general rules about applications)
Interim payments—conditions to be satisfied and matters to be taken into account
25.7. (1) The court may make an order for an interim payment only if— (a) the defendant against whom the order is sought has admitted liability to pay damages or
some other sum of money to the claimant; (b) the claimant has obtained judgment against that defendant for damages to be assessed or
for a sum of money (other than costs) to be assessed; (c) except where paragraph (3) applies, it is satisfied that, if the claim went to trial, the claimant
would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment; or
(d) the following conditions are satisfied— (i) the claimant is seeking an order for possession of land (whether or not any other
order is also sought); and (ii) the court is satisfied that, if the case went to trial, the defendant would be held
liable (even if the claim for possession fails) to pay the claimant a sum of money for the defendant’s occupation and use of the land while the claim for possession was pending.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
74
(2) In addition, in a claim for personal injuries the court may make an order for an interim payment of damages only if—
(a) the defendant is insured in respect of the claim; (b) the defendant’s liability will be met by—
(i) an insurer under section 151 of the Road Traffic Act 1988(34); or (ii) an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers
Bureau where it is acting itself; or (c) the defendant is a public body.
(3) In a claim for personal injuries where there are two or more defendants, the court may make an order for the interim payment of damages against any defendant if—
(a) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for substantial damages against at least one of the defendants (even if the court has not yet determined which of them is liable); and
(b) paragraph (2) is satisfied in relation to each of the defendants. (4) The court must not order an interim payment of more than a reasonable proportion of the
likely amount of the final judgment. (5) The court must take into account—
(a) contributory negligence; and (b) any relevant set-off or counterclaim.
Powers of court where it has made an order for interim payment
25.8. (1) Where a defendant has been ordered to make an interim payment, or has in fact made an interim payment (whether voluntarily or under an order), the court may make an order to adjust the interim payment.
(2) The court may in particular— (a) order all or part of the interim payment to be repaid; (b) vary or discharge the order for the interim payment; (c) order a defendant to reimburse, either wholly or partly, another defendant who has made
an interim payment. (3) The court may make an order under paragraph (2)(c) only if—
(a) the defendant to be reimbursed made the interim payment in relation to a claim in respect of which he has made a claim against the other defendant for a contribution(GL), indemnity(GL) or other remedy; and
(b) where the claim or part to which the interim payment relates has not been discontinued or disposed of, the circumstances are such that the court could make an order for interim payment under rule 25.7.
(4) The court may make an order under this rule without an application by any party if it makes the order when it disposes of the claim or any part of it.
(5) Where— (a) a defendant has made an interim payment; and (b) the amount of the payment is more than his total liability under the final judgment or order,
(34) 1988 c. 52. Section 151 was amended by the Road Traffic Act 1991 (c. 40), section 83, Schedule 8.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
75
the court may award him interest on the overpaid amount from the date when he made the interim payment.
Restriction on disclosure of an interim payment
25.9. The fact that a defendant has made an interim payment, whether voluntarily or by court order, shall not be disclosed to the trial judge until all questions of liability and the amount of money to be awarded have been decided unless the defendant agrees.
Interim injunction to cease if claim is stayed
25.10. If— (a) the court has granted an interim injunction(GN( � and (b) the claim is stayed(GL) other than by agreement between the parties, the interim
injunction(GL) shall be set aside(GL) unless the court orders that it should continue to have effect even though the claim is stayed.
PART 26 CASE MANAGEMENT—PRELIMINARY STAGE
Contents of this Part
Scope of this Part Rule 26.1
Automatic transfer Rule 26.2
Allocation questionnaire Rule 26.3
Stay to allow for settlement of the case Rule 26.4
Allocation Rule 26.5
Scope of each track Rule 26.6
General rule for allocation Rule 26.7
Matters relevant to allocation to a track Rule 26.8
Notice of allocation Rule 26.9
Re-allocation Rule 26.10
Scope of this Part
26.1. (1) This Part provides for— (a) the automatic transfer of some defended cases between courts; and (b) the allocation of defended cases to case management tracks.
(2) There are three tracks— (a) the small claims track; (b) the fast track; and (c) the multi-track.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
76
(Rule 26.6 sets out the normal scope of each track. Part 27 makes provision for the small claims track. Part 28 makes provision for the fast track. Part 29 makes provision for the multi-track)
Automatic transfer
26.2. (1) This rule applies to proceedings where— (a) the claim is for a specified amount of money; (b) the claim was commenced in a court which is not the defendant’s home court; (c) the claim has not been transferred to another defendant’s home court under rule 13.4
(application to set aside(GL) or vary default judgment—procedure) or rule 14.12 (admission —de termination of rate of payment by judge); and
(d) the defendant is an individual.
(2) This rule does not apply where the claim was commenced in a specialist list(GL). (3) Where this rule applies, the court will transfer the proceedings to the defendant’s home court
when a defence is filed, unless paragraph (4) applies.
(Rule 2.3 defines “defendant’s home court”) (4) Where the claimant notifies the court under rule 15.10 or rule 14.5 that he wishes the
proceedings to continue, the court will transfer the proceedings to the defendant’s home court when it receives that notification from the claimant.
(Rule 15.10 deals with a claimant’s notice where the defence is that money claimed has been paid)
(Rule 14.5 sets out the procedure where the defendant admits part of a claim for a specified amount of money)
(5) Where— (a) the claim is against two or more defendants with different home courts; and (b) the defendant whose defence is filed first is an individual,
proceedings are to be transferred under this rule to the home court of that defendant. (6) The time when a claim is automatically transferred under this rule may be varied by a practice
direction in respect of claims issued by the Production Centre.
(Rule 7.10 makes provision for the Production Centre)
Allocation questionnaire
26.3. (1) When a defendant files a defence the court will serve an allocation questionnaire on each party unless—
(a) rule 15.10 or rule 14.5 applies; or (b) the court dispenses with the need for a questionnaire.
(2) Where there are two or more defendants and at least one of them files a defence, the court will serve the allocation questionnaire under paragraph (1)—
(a) when all the defendants have filed a defence; or (b) when the period for the filing of the last defence has expired,
whichever is the sooner.
(Rule 15.4 specifies the period for filing a defence)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
77
(3) Where proceedings are automatically transferred to the defendant’s home court under rule 26.2, the court in which the proceedings have been commenced will serve an allocation questionnaire before the proceedings are transferred.
(4) Where— (a) rule 15.10 or rule 14.5 applies; and (b) the proceedings are not automatically transferred to the defendant’s home court under rule
26.2, the court will serve an allocation questionnaire on each party when the claimant files a notice indicating that he wishes the proceedings to continue.
(5) The court may, on the application of the claimant, serve an allocation questionnaire earlier than it would otherwise serve it under this rule.
(6) Each party must file the completed allocation questionnaire no later than the date specified in it, which shall be at least 14 days after the date when it is deemed to be served on the party in question.
(7) The time when the court serves an allocation questionnaire under this rule may be varied by a practice direction in respect of claims issued by the Production Centre.
(Rule 7.10 makes provision for the Production Centre)
(Rule 6.7 specifies when a document is deemed to be served)
Stay to allow for settlement of the case
26.4. (1) A party may, when filing the completed allocation questionnaire, make a written request for the proceedings to be stayed(GL) while the parties try to settle the case by alternative dispute resolution(GL) or other means.
(2) Where— (a) all parties request a stay(GL) under paragraph (1); or (b) the court, of its own initiative, considers that such a stay would be appropriate,
the court will direct that the proceedings be stayed for one month.
(3) The court may extend the stay(GL) until such date or for such specified period as it considers appropriate.
(4) Where the court stays(GL) the proceedings under this rule, the claimant must tell the court if a settlement is reached.
(5) If the claimant does not tell the court by the end of the period of the stay(GL) that a settlement has been reached, the court will give such directions as to the management of the case as it considers appropriate.
Allocation
26.5. (1) The court will allocate the claim to a track— (a) when every defendant has filed an allocation questionnaire, or (b) when the period for filing the allocation questionnaires has expired,
whichever is the sooner, unless it has— (i) stayed(GL) the proceedings under rule 26.4; or
(ii) dispensed with the need for allocation questionnaires.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
78
(Rules 12.7 and 14.8 provide for the court to allocate a claim to a track where the claimant obtains default judgment on request or judgment on admission for an amount to be decided by the court)
(2) If the court has stayed(GL) the proceedings under rule 26.4, it will allocate the claim to a track at the end of the period of the stay.
(3) Before deciding the track to which to allocate proceedings or deciding whether to give directions for an allocation hearing to be fixed, the court may order a party to provide further information about his case.
(4) The court may hold an allocation hearing if it thinks it is necessary. (5) If a party fails to file an allocation questionnaire, the court may give any direction it considers
appropriate.
Scope of each track
26.6. (1) The small claims track is the normal track for— (a) any claim for personal injuries where—
(i) the financial value of the claim is not more than £5,000; and (ii) the financial value of any claim for damages for personal injuries is not more than
£1,000; (b) any claim which includes a claim by a tenant of residential premises against his landlord
where— (i) the tenant is seeking an order requiring the landlord to carry out repairs or other work
to the premises (whether or not the tenant is also seeking some other remedy); (ii) the cost of the repairs or other work to the premises is estimated to be not more than
£1,000; and (iii) the financial value of any other claim for damages is not more than £1,000.
(Rule 2.3 defines “claim for personal injuries” as proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person’s death)
(2) For the purposes of paragraph (1) “damages for personal injuries” means damages claimed as compensation for pain, suffering and loss of amenity and does not include any other damages which are claimed.
(3) Subject to paragraph (1), the small claims track is the normal track for any claim which has a financial value of not more than £5,000.
(Rule 26.7(4) provides that the court will not allocate to the small claims track certain claims in respect of harassment or unlawful eviction)
(4) Subject to paragraph (5), the fast track is the normal track for any claim— (a) for which the small claims track is not the normal track; and (b) which has a financial value of not more than £15,000.
(5) The fast track is the normal track for the claims referred to in paragraph (4) only if the court considers that—
(a) the trial is likely to last for no longer than one day; and (b) oral expert evidence at trial will be limited to—
(i) one expert per party in relation to any expert field; and (ii) expert evidence in two expert fields.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
79
(6) The multi-track is the normal track for any claim for which the small claims track or the fast track is not the normal track.
General rule for allocation
26.7. (1) In considering whether to allocate a claim to the normal track for that claim under rule 26.6, the court will have regard to the matters mentioned in rule 26.8(1).
(2) The court will allocate a claim which has no financial value to the track which it considers most suitable having regard to the matters mentioned in rule 26.8(1).
(3) The court will not allocate proceedings to a track if the financial value of any claim in those proceedings, assessed by the court under rule 26.8, exceeds the limit for that track unless all the parties consent to the allocation of the claim to that track.
(4) The court will not allocate a claim to the small claims track, if it includes a claim by a tenant of residential premises against his landlord for a remedy in respect of harassment or unlawful eviction.
Matters relevant to allocation to a track
26.8. (1) When deciding the track for a claim, the matters to which the court shall have regard include—
(a) the financial value, if any, of the claim; (b) the nature of the remedy sought; (c) the likely complexity of the facts, law or evidence; (d) the number of parties or likely parties; (e) the value of any counterclaim or other Part 20 claim and the complexity of any matters
relating to it; (f) the amount of oral evidence which may be required; (g) the importance of the claim to persons who are not parties to the proceedings; (h) the views expressed by the parties; and (i) the circumstances of the parties.
(2) It is for the court to assess the financial value of a claim and in doing so it will disregard— (a) any amount not in dispute; (b) any claim for interest; (c) costs; and (d) any contributory negligence.
(3) Where— (a) two or more claimants have started a claim against the same defendant using the same
claim form; and (b) each claimant has a claim against the defendant separate from the other claimants,
the court will consider the claim of each claimant separately when it assesses financial value under paragraph (1).
Notice of allocation
26.9. (1) When it has allocated a claim to a track, the court will serve notice of allocation on every party.
(2) When the court serves notice of allocation on a party, it will also serve—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
80
(a) a copy of the allocation questionnaires filed by the other parties; and (b) a copy of any further information provided by another party about his case (whether by
order or not).
(Rule 26.5 provides that the court may, before allocating proceedings, order a party to provide further information about his case)
Re-allocation
26.10. The court may subsequently re-allocate a claim to a different track.
PART 27 THE SMALL CLAIMS TRACK
Contents of this Part
Scope of this Part Rule 27.1
Extent to which other Parts apply Rule 27.2
Court’s power to grant a final remedy Rule 27.3
Preparation for the hearing Rule 27.4
Experts Rule 27.5
Preliminary hearing Rule 27.6
Power of court to add to, vary or revoke directions
Rule 27.7
Conduct of the hearing Rule 27.8
Non-attendance of parties at a final hearing Rule 27.9
Disposal without a hearing Rule 27.10
Setting judgment aside and re-hearing Rule 27.11
Right of appeal under Part 27 Rule 27.12
Procedure for making an appeal Rule 27.13
Costs on the small claims track Rule 27.14
Claim re-allocated from the small claims track to another track
Rule 27.15
Scope of this Part
27.1. (1) This Part— (a) sets out the special procedure for dealing with claims which have been allocated to the
small claims track under Part 26; and (b) limits the amount of costs that can be recovered in respect of a claim which has been
allocated to the small claims track.
(Rule 27.14 deals with costs on the small claims track)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
81
(2) A claim being dealt with under this Part is called a small claim.
(Rule 26.6 provides for the scope of the small claims track. A claim for a remedy for harassment or unlawful eviction relating, in either case, to residential premises shall not be allocated to the small claims track whatever the financial value of the claim.
Otherwise, the small claims track will be the normal track for— any claim which has a financial value of not more than £5,000 subject to the special provisions about claims for personal injuries and housing disrepair claims; any claim for personal injuries which has a financial value of not more than £5,000 where the claim for damages for personal injuries is not more than £1,000; and any claim which includes a claim by a tenant of residential premises against his landlord for repairs or other work to the premises where the estimated cost of the repairs or other work is not more than £1,000 and the financial value of any claim for damages in respect of those repairs or other work is not more than £1,000)
Extent to which other Parts apply
27.2. (1) The following Parts of these Rules do not apply to small claims— (a) Part 25 (interim remedies) except as it relates to interim injunctions(GN( � (b) Part 31 (disclosure and inspection); (c) Part 32 (evidence) except rule 32.1 (power of court to control evidence); (d) Part 33 (miscellaneous rules about evidence); (e) Part 35 (experts and assessors) except rules 35.1 (duty to restrict expert evidence), 35.3
(experts—overriding duty to the court) and 35.8 (instructions to a single joint expert); (f) Part 18 (further information); (g) Part 36 (offers to settle and payments into court); and (h) Part 39 (hearings) except rule 39.2 (general rule—hearing to be in public).
(2) The other Parts of these Rules apply to small claims except to the extent that a rule limits such application.
Court’s power to grant a final remedy
27.3. The court may grant any final remedy in relation to a small claim which it could grant if the proceedings were on the fast track or the multi-track.
Preparation for the hearing
27.4. (1) After allocation the court will— (a) give standard directions and fix a date for the final hearing; (b) give special directions and fix a date for the final hearing; (c) give special directions and direct that the court will consider what further directions are to
be given no later than 28 days after the date the special directions were given; (d) fix a date for a preliminary hearing under rule 27.6; or (e) give notice that it proposes to deal with the claim without a hearing under rule 27.10 and
invite the parties to notify the court by a specified date if they agree the proposal. (2) The court will—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
82
(a) give the parties at least 21 days' notice of the date fixed for the final hearing, unless the parties agree to accept less notice; and
(b) inform them of the amount of time allowed for the final hearing. (3) In this rule
(a) “standard directions” means— (i) a direction that each party shall, at least 14 days before the date fixed for the final
hearing, file and serve on every other party copies of all documents (including any expert’s report) on which he intends to rely at the hearing; and
(ii) any other standard directions set out in the relevant practice direction; and (b) “special directions” means directions given in addition to or instead of the standard
directions.
Experts
27.5. No expert may give evidence, whether written or oral, at a hearing without the permission of the court.
(Rule 27.14(3)(d) provides for the payment of an expert’s fees)
Preliminary hearing
27.6. (1) The court may hold a preliminary hearing for the consideration of the claim, but only— (a) where—
(i) it considers that special directions, as defined in rule 27.4, are needed to ensure a fair hearing; and
(ii) it appears necessary for a party to attend at court to ensure that he understands what he must do to comply with the special directions; or
(b) to enable it to dispose of the claim on the basis that one or other of the parties has no real prospect of success at a final hearing; or
(c) to enable it to strike out(GL) a statement of case or part of a statement of case on the basis that the statement of case, or the part to be struck out, discloses no reasonable grounds for bringing or defending the claim.
(2) When considering whether or not to hold a preliminary hearing, the court must have regard to the desirability of limiting the expense to the parties of attending court.
(3) Where the court decides to hold a preliminary hearing, it will give the parties at least 14 days' notice of the date of the hearing.
(4) The court may treat the preliminary hearing as the final hearing of the claim if all the parties agree.
(5) At or after the preliminary hearing the court will— (a) fix the date of the final hearing (if it has not been fixed already) and give the parties at
least 21 days' notice of the date fixed unless the parties agree to accept less notice; (b) inform them of the amount of time allowed for the final hearing; and (c) give any appropriate directions.
Power of court to add to, vary or revoke directions
27.7. The court may add to, vary or revoke directions.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
83
Conduct of the hearing
27.8. (1) The court may adopt any method of proceeding at a hearing that it considers to be fair. (2) Hearings will be informal. (3) The strict rules of evidence do not apply. (4) The court need not take evidence on oath.
(5) The court may limit cross-examination(GL). (6) The court must give reasons for its decision.
Non-attendance of parties at a final hearing
27.9. (1) If a party who does not attend a final hearing— (a) has given the court written notice at least 7 days before the date of the hearing that he
will not attend; and (b) has, in that notice, requested the court to decide the claim in his absence,
the court will take into account that party’s statement of case and any other documents he has filed when it decides the claim.
(2) If a claimant does not— (a) attend the hearing; and (b) give the notice referred to in paragraph (1)
the court may strike out(GL) the claim. (3) If—
(a) a defendant does not (i) attend the hearing; or
(ii) give the notice referred to in paragraph (1); and (b) the claimant either—
(i) does attend the hearing; or (ii) gives the notice referred to in paragraph (1),
the court may decide the claim on the basis of the evidence of the claimant alone. (4) If neither party attends or gives the notice referred to in paragraph (1), the court may strike
out(GL) the claim and any defence and counterclaim.
Disposal without a hearing
27.10. The court may, if all parties agree, deal with the claim without a hearing.
Setting judgment aside and re-hearing
27.11. (1) A party— (a) who was neither present nor represented at the hearing of the claim; and (b) who has not given written notice to the court under rule 27.9(1),
may apply for an order that a judgment under this Part shall be set aside(GL) and the claim re-heard. (2) A party who applies for an order setting aside a judgment under this rule must make the
application not more than 14 days after the day on which notice of the judgment was served on him.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
84
(3) The court may grant an application under paragraph (2) only if the applicant— (a) had a good reason for not attending or being represented at the hearing or giving written
notice to the court under rule 27.9(1); and (b) has a reasonable prospect of success at the hearing.
(4) If a judgment is set aside(GL)— (a) the court must fix a new hearing for the claim; and (b) the hearing may take place immediately after the hearing of the application to set the
judgment aside and may be dealt with by the judge who set aside(GL) the judgment.
(5) A party may not apply to set aside(GL) a judgment under this rule if the court dealt with the claim without a hearing under rule 27.10.
Right of appeal under Part 27
27.12. (1) A party may appeal against an order under this Part only on the grounds that— (a) there was serious irregularity affecting the proceedings; or (b) the court made a mistake of law.
(2) On an appeal the court may make any order it considers appropriate. (3) The court may dismiss an appeal without a hearing. (4) This rule does not limit any right of appeal arising under any Act.
Procedure for making an appeal
27.13. (1) A party who wishes to appeal must file a notice of appeal not more than 14 days after the day on which notice of the order was served on him.
(2) Notice of appeal— (a) must be filed at the court which made the order; and (b) must set out the grounds for the appeal with particulars of the serious irregularity or
mistake of law alleged.
Costs on the small claims track
27.14. (1) This rule applies to any case which has been allocated to the small claims track unless paragraph (5) applies.
(Rules 44.9 and 44.11 make provision in relation to orders for costs made before a claim has been allocated to the small claims track)
(2) The court may not order a party to pay a sum to another party in respect of that other party’s costs except—
(a) the fixed costs payable under Part 45 attributable to issuing the claim; (b) in proceedings which included a claim for an injunction(GL) or an order for specific
performance a sum not exceeding the amount specified in the relevant practice direction for legal advice and assistance relating to that claim;
(c) costs assessed by the summary procedure in relation to an appeal under rule 27.12; and (d) such further costs as the court may assess by the summary procedure and order to be paid
by a party who has behaved unreasonably. (3) The court may also order a party to pay all or part of—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
85
(a) any court fees paid by another party; (b) expenses which a party or witness has reasonably incurred in travelling to and from a
hearing or in staying away from home for the purposes of attending a hearing; (c) a sum not exceeding the amount specified in the relevant practice direction for any loss of
earnings by a party or witness due to attending a hearing or to staying away from home for the purpose of attending a hearing; and
(d) a sum not exceeding the amount specified in the relevant practice direction for an expert’s fees.
(4) The limits on costs imposed by this rule also apply to any fee or reward for acting on behalf of a party to the proceedings charged by a person exercising a right of audience by virtue of an order under section 11 of the Courts and Legal Services Act 1990(35) (a lay representative).
(5) Where— (a) the financial value of a claim exceeds the limit for the small claims track; but (b) the claim has been allocated to the small claims track in accordance with rule 26.7(3),
the claim shall be treated, for the purposes of costs, as if it were proceeding on the fast track except that trial costs shall be in the discretion of the court and shall not exceed the amount set out for the value of the claim in rule 46.2 (amount of fast track trial costs).
(Rule 26.7(3) allows the parties to consent to a claim being allocated to a track where the financial value of the claim exceeds the limit for that track)
Claim re-allocated from the small claims track to another track
27.15. Where a claim is allocated to the small claims track and subsequently re-allocated to another track, rule 27.14 (costs on the small claims track) will cease to apply after the claim has been re-allocated and the fast track or multi-track costs rules will apply from the date of re-allocation.
PART 28 THE FAST TRACK
Contents of this Part
Scope of this Part Rule 28.1
General provisions Rule 28.2
Directions Rule 28.3
Variation of case management timetable Rule 28.4
Listing questionnaire Rule 28.5
Fixing or confirming the trial date and giving directions
Rule 28.6
Conduct of trial Rule 28.7
(35) 1990 c. 41.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
86
Scope of this Part
28.1. This Part contains general provisions about management of cases allocated to the fast track and applies only to cases allocated to that track.
(Part 27 sets out the procedure for claims allocated to the small claims track) (Part 29 sets out the procedure for claims allocated to the multi-track)
General provisions
28.2. (1) When it allocates a case to the fast track, the court will give directions for the management of the case and set a timetable for the steps to be taken between the giving of the directions and the trial.
(2) When it gives directions, the court will— (a) fix the trial date; or (b) fix a period, not exceeding 3 weeks, within which the trial is to take place.
(3) The trial date or trial period will be specified in the notice of allocation. (4) The standard period between the giving of directions and the trial will be not more than 30
weeks. (5) The court’s power to award trial costs is limited in accordance with Part 46.
Directions
28.3. (1) The matters to be dealt with by directions under rule 28.2(1) include— (a) disclosure of documents; (b) service of witness statements; and (c) expert evidence.
(2) If the court decides not to direct standard disclosure, it may— (a) direct that no disclosure take place; or (b) specify the documents or the classes of documents which the parties must disclose.
(Rule 31.6 explains what is meant by standard disclosure) (Rule 26.6(5) deals with limitations in relation to expert evidence and the likely length of trial in fast track cases)
Variation of case management timetable
28.4. (1) A party must apply to the court if he wishes to vary the date which the court has fixed for—
(a) the return of a listing questionnaire under rule 28.5; (b) the trial; or (c) the trial period.
(2) Any date set by the court or these Rules for doing any act may not be varied by the parties if the variation would make it necessary to vary any of the dates mentioned in paragraph (1).
(Rule 2.11 allows the parties to vary a date by written agreement except where the rules provide otherwise or the court orders otherwise)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
87
Listing questionnaire
28.5. (1) The court will send the parties a listing questionnaire for completion and return by the date specified in the notice of allocation unless it considers that the claim can be listed for trial without the need for a listing questionnaire.
(2) The date specified for filing a listing questionnaire will not be more than 8 weeks before the trial date or the beginning of the trial period.
(3) If— (a) a party fails to file the completed questionnaire by the date specified; (b) a party has failed to give all the information requested by the listing questionnaire; or (c) the court considers that a hearing is necessary to enable it to decide what directions to give
in order to complete preparation of the case for trial, the court may fix a listing hearing or give such other directions as it thinks appropriate.
Fixing or confirming the trial date and giving directions
28.6. (1) As soon as practicable after the date specified for filing a completed listing questionnaire the court will—
(a) fix the date for the trial (or, if it has already done so, confirm that date); (b) give any directions for the trial, including a trial timetable, which it considers appropriate;
and (c) specify any further steps that need to be taken before trial.
(2) The court will give the parties at least 3 weeks' notice of the date of the trial unless, in exceptional circumstances, the court directs that shorter notice will be given.
Conduct of trial
28.7. Unless the trial judge otherwise directs, the trial will be conducted in accordance with any order previously made.
PART 29 THE MULTI-TRACK
Contents of this Part
Scope of this Part Rule 29.1
Case management Rule 29.2
Case management conference and pre-trial review
Rule 29.3
Steps taken by the parties Rule 29.4
Variation of case management timetable Rule 29.5
Listing questionnaire Rule 29.6
Pre-trial review Rule 29.7
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
88
Setting a trial timetable and fixing or confirming the trial date or week
Rule 29.8
Conduct of the trial Rule 29.9
Scope of this Part
29.1. This Part contains general provisions about management of cases allocated to the multi- track and applies only to cases allocated to that track.
(Part 27 sets out the procedure for claims allocated to the small claims track) (Part 28 sets out the procedure for claims allocated to the fast track)
Case management
29.2. (1) When it allocates a case to the multi-track, the court will— (a) give directions for the management of the case and set a timetable for the steps to be taken
between the giving of directions and the trial; or (b) fix—
(i) a case management conference; or (ii) a pre-trial review,
or both, and give such other directions relating to the management of the case as it sees fit. (2) The court will fix the trial date or the period in which the trial is to take place as soon as
practicable. (3) When the court fixes the trial date or the trial period under paragraph (2), it will—
(a) give notice to the parties of the date or period; and (b) specify the date by which the parties must file a listing questionnaire.
Case management conference and pre-trial review
29.3. (1) The court may fix— (a) a case management conference; or (b) a pre-trial review,
at any time after the claim has been allocated. (2) If a party has a legal representative, a representative—
(a) familiar with the case; and (b) with sufficient authority to deal with any issues that are likely to arise, must attend case
management conferences and pre-trial reviews.
(Rule 3.1(2)(c) provides that the court may require a party to attend the court)
Steps taken by the parties
29.4. If— (a) the parties agree proposals for the management of the proceedings (including a proposed
trial date or period in which the trial is to take place); and (b) the court considers that the proposals are suitable,
it may approve them without a hearing and give directions in the terms proposed.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
89
Variation of case management timetable
29.5. (1) A party must apply to the court if he wishes to vary the date which the court has fixed for—
(a) a case management conference; (b) a pre-trial review; (c) the return of a listing questionnaire under rule 29.6; (d) the trial; or (e) the trial period.
(2) Any date set by the court or these Rules for doing any act may not be varied by the parties if the variation would make it necessary to vary any of the dates mentioned in paragraph (1).
(Rule 2.11 allows the parties to vary a date by written agreement except where the rules provide otherwise or the court orders otherwise)
Listing questionnaire
29.6. (1) The court will send the parties a listing questionnaire for completion and return by the date specified in directions given under rule 29.2(3) unless it considers that the claim can be listed for trial without the need for a listing questionnaire.
(2) Each party must file the completed listing questionnaire by the date specified by the court. (3) If—
(a) a party fails to file the completed questionnaire by the date specified; (b) a party has failed to give all the information requested by the listing questionnaire; or (c) the court considers that a hearing is necessary to enable it to decide what directions to give
in order to complete preparation of the case for trial, the court may fix a date for a listing hearing or give such other directions as it thinks appropriate.
Pre-trial review
29.7. If, on receipt of the parties' listing questionnaires, the court decides— (a) to hold a pre-trial review; or (b) to cancel a pre-trial review which has already been fixed,
it will serve notice of its decision at least 7 days before the date fixed for the hearing or, as the case may be, the cancelled hearing.
Setting a trial timetable and fixing or confirming the trial date or week
29.8. As soon as practicable after— (a) each party has filed a completed listing questionnaire; (b) the court has held a listing hearing under rule 29.6(3); or (c) the court has held a pre-trial review under rule 29.7,
the court will— (i) set a timetable for the trial unless a timetable has already been fixed, or the court
considers that it would be inappropriate to do so; (ii) fix the date for the trial or the week within which the trial is to begin (or, if it has
already done so, confirm that date); and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
90
(iii) notify the parties of the trial timetable (where one is fixed under this rule) and the date or trial period.
Conduct of trial
29.9. Unless the trial judge otherwise directs, the trial will be conducted in accordance with any order previously made.
PART 30 TRANSFER
Contents of this Part
Scope of this Part Rule 30.1
Transfer between county courts and within the High Court
Rule 30.2
Criteria for a transfer order Rule 30.3
Procedure Rule 30.4
Transfer between Divisions and to and from a specialist list
Rule 30.5
Power to specify place where hearings are to be held
Rule 30.6
Transfer of control of money in court Rule 30.7
Certiorari or prohibition Rule 30.8
Scope of this Part
30.1. This Part deals with the transfer of proceedings between county courts, between the High Court and the county courts and within the High Court.
(Rule 26.2 provides for automatic transfer in certain cases)
Transfer between county courts and within the High Court
30.2. (1) A county court may order proceedings before that court, or any part of them (such as a counterclaim or an application made in the proceedings), to be transferred to another county court if it is satisfied that—
(a) an order should be made having regard to the criteria in rule 30.3; or (b) proceedings for
(i) the detailed assessment of costs; or (ii) the enforcement of a judgment or order,
could be more conveniently or fairly taken in that other county court. (2) If proceedings have been started in the wrong county court, a judge of the county court may
order that the proceedings— (a) be transferred to the county court in which they ought to have been started;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
91
(b) continue in the county court in which they have been started; or (c) be struck out.
(3) An application for an order under paragraph (1) or (2) must be made to the county court where the claim is proceeding.
(4) The High Court may, having regard to the criteria in rule 30.3, order proceedings in the Royal Courts of Justice or a district registry, or any part of such proceedings (such as a counterclaim or an application made in the proceedings), to be transferred—
(a) from the Royal Courts of Justice to a district registry; or (b) from a district registry to the Royal Courts of Justice or to another district registry.
(5) A district registry may order proceedings before it for the detailed assessment of costs to be transferred to another district registry if it is satisfied that the proceedings could be more conveniently or fairly taken in that other district registry.
(6) An application for an order under paragraph (4) or (5) must, if the claim is proceeding in a district registry, be made to that registry.
(7) Where some enactment, other than these Rules, requires proceedings to be started in a particular county court, neither paragraphs (1) nor (2) give the court power to order proceedings to be transferred to a county court which is not the court in which they should have been started or to order them to continue in the wrong court.
(8) Probate proceedings may only be transferred under paragraph (4) to the Chancery Division at the Royal Courts of Justice or to one of the Chancery district registries.
Criteria for a transfer order
30.3. (1) Paragraph (2) sets out the matters to which the court must have regard when considering whether to make an order under—
(a) s.40(2), 41(1) or 42(2) of the County Courts Act 1984(36) (transfer between the High Court and a county court);
(b) rule 30.2(1) (transfer between county courts); or (c) rule 30.2(4) (transfer between the Royal Courts of Justice and the district registries).
(2) The matters to which the court must have regard include— (a) the financial value of the claim and the amount in dispute, if different; (b) whether it would be more convenient or fair for hearings (including the trial) to be held
in some other court; (c) the availability of a judge specialising in the type of claim in question; (d) whether the facts, legal issues, remedies or procedures involved are simple or complex; (e) the importance of the outcome of the claim to the public in general; (f) the facilities available at the court where the claim is being dealt with and whether they
may be inadequate because of any disabilities of a party or potential witness.
Procedure
30.4. (1) Where the court orders proceedings to be transferred, the court from which they are to be transferred must give notice of the transfer to all the parties.
(36) 1984 c. 28. Section 40 was substituted by section 2(1) of the Courts and Legal Services Act 1990 (c. 41). Section 41 was amended by the Matrimonial and Family Proceedings Act 1984 (c. 42), Schedule 1, paragraph 31 and by section 2(2) of the Courts and Legal Services Act 1990. Section 42 was substituted by section 2(3) of the Courts and Legal Services Act 1990.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
92
(2) An order made before the transfer of the proceedings shall not be affected by the order to transfer.
Transfer between Divisions and to and from a specialist list
30.5. (1) The High Court may order proceedings in any Division of the High Court to be transferred to another Division.
(2) The court may order proceedings to be transferred to or from a specialist list. (3) An application for the transfer of proceedings to or from a specialist list must be made to a
judge dealing with claims in that list.
Power to specify place where hearings are to be held
30.6. The court may specify the place (for instance, a particular county court) where the trial or some other hearing in any proceedings is to be held and may do so without ordering the proceedings to be transferred.
Transfer of control of money in court
30.7. The court may order that control of any money held by it under rule 21.11 (control of money recovered by or on behalf of a child or patient) be transferred to another court if that court would be more convenient.
Certiorari or prohibition
30.8. A party obtaining from the High Court, on an application made without notice, an order giving permission to make an application for—
(a) an order of certiorari to remove proceedings from a county court; or (b) an order of prohibition to any county court,
must immediately serve a copy of the order on the other parties and on the court officer of the county court.
PART 31 DISCLOSURE AND INSPECTION OF DOCUMENTS
Contents of this Part
Scope of this Part Rule 31.1
Meaning of disclosure Rule 31.2
Right of inspection of a disclosed document Rule 31.3
Meaning of document Rule 31.4
Disclosure limited to standard disclosure Rule 31.5
Standard disclosure—what documents are to be disclosed
Rule 31.6
Duty of search Rule 31.7
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
93
Duty of disclosure limited to documents which are or have been in a party’s control
Rule 31.8
Disclosure of copies Rule 31.9
Procedure for standard disclosure Rule 31.10
Duty of disclosure continues during proceedings
Rule 31.11
Specific disclosure or inspection Rule 31.12
Disclosure in stages Rule 31.13
Documents referred to in statements of case etc. Rule 31.14
Inspection and copying of documents Rule 31.15
Disclosure before proceedings start Rule 31.16
Orders for disclosure against a person not a party
Rule 31.17
Rules not to limit other powers of the court to order disclosure
Rule 31.18
Claim to withhold inspection or disclosure of a document
Rule 31.19
Restriction on use of a privileged document inspection of which has been inadvertently allowed
Rule 31.20
Consequence of failure to disclose documents or permit inspection
Rule 31.21
Subsequent use of disclosed documents Rule 31.22
Scope of this Part
31.1. (1) This Part sets out rules about the disclosure and inspection of documents. (2) This Part applies to all claims except a claim on the small claims track.
Meaning of disclosure
31.2. A party discloses a document by stating that the document exists or has existed.
Right of inspection of a disclosed document
31.3. (1) A party to whom a document has been disclosed has a right to inspect that document except where—
(a) the document is no longer in the control of the party who disclosed it; (b) the party disclosing the document has a right or a duty to withhold inspection of it; or (c) paragraph (2) applies.
(Rule 31.8 sets out when a document is in the control of a party) (Rule 31.19 sets out the procedure for claiming a right or duty to withhold inspection)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
94
31.3. (2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) —
(a) he is not required to permit inspection of documents within that category or class; but (b) he must state in his disclosure statement that inspection of those documents will not be
permitted on the grounds that to do so would be disproportionate.
(Rule 31.6 provides for standard disclosure)
(Rule 31.10 makes provision for a disclosure statement)
(Rule 31.12 provides for a party to apply for an order for specific inspection of documents)
Meaning of document
31.4. In this Part— “document” means anything in which information of any description is recorded; and “copy”, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.
Disclosure limited to standard disclosure
31.5. (1) An order to give disclosure is an order to give standard disclosure unless the court directs otherwise.
(2) The court may dispense with or limit standard disclosure. (3) The parties may agree in writing to dispense with or to limit standard disclosure.
(The court may make an order requiring standard disclosure under rule 28.3 which deals with directions in relation to cases on the fast track and under rule 29.2 which deals with case management in relation to cases on the multi-track)
Standard disclosure—what documents are to be disclosed
31.6. Standard disclosure requires a party to disclose only— (a) the documents on which he relies; and (b) the documents which—
(i) adversely affect his own case; (ii) adversely affect another party’s case; or
(iii) support another party’s case; and (c) the documents which he is required to disclose by a relevant practice direction.
Duty of search
31.7. (1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).
(2) The factors relevant in deciding the reasonableness of a search include the following— (a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document; and (d) the significance of any document which is likely to be located during the search.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
95
(3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.
(Rule 31.10 makes provision for a disclosure statement)
Duty of disclosure limited to documents which are or have been in party’s control
31.8. (1) A party’s duty to disclose documents is limited to documents which are or have been in his control.
(2) For this purpose a party has or has had a document in his control if— (a) it is or was in his physical possession; (b) he has or has had a right to possession of it; or (c) he has or has had a right to inspect or take copies of it.
Disclosure of copies
31.9. (1) A party need not disclose more than one copy of a document. (2) A copy of a document that contains a modification, obliteration or other marking or feature—
(a) on which a party intends to rely; or (b) which adversely affects his own case or another party’s case or supports another party’s
case; shall be treated as a separate document.
(Rule 31.4 sets out the meaning of a copy of a document)
Procedure for standard disclosure
31.10. (1) The procedure for standard disclosure is as follows. (2) Each party must make and serve on every other party, a list of documents in the relevant
practice form. (3) The list must identify the documents in a convenient order and manner and as concisely as
possible. (4) The list must indicate—
(a) those documents in respect of which the party claims a right or duty to withhold inspection; and
(b) (i) those documents which are no longer in the party’s control; and (ii) what has happened to those documents.
(Rule 31.19 (3) and (4) require a statement in the list of documents relating to any documents inspection of which a person claims he has a right or duty to withhold)
(5) The list must include a disclosure statement. (6) A disclosure statement is a statement made by the party disclosing the documents—
(a) setting out the extent of the search that has been made to locate documents which he is required to disclose;
(b) certifying that he understands the duty to disclose documents; and (c) certifying that to the best of his knowledge he has carried out that duty.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
96
(7) Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also—
(a) identify the person making the statement; and (b) explain why he is considered an appropriate person to make the statement.
(8) The parties may agree in writing— (a) to disclose documents without making a list; and (b) to disclose documents without the disclosing party making a disclosure statement.
(9) A disclosure statement may be made by a person who is not a party where this is permitted by a relevant practice direction.
Duty of disclosure continues during proceedings
31.11. (1) Any duty of disclosure continues until the proceedings are concluded. (2) If documents to which that duty extends come to a party’s notice at any time during the
proceedings, he must immediately notify every other party.
Specific disclosure or inspection
31.12. (1) The court may make an order for specific disclosure or specific inspection. (2) An order for specific disclosure is an order that a party must do one or more of the following
things— (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; (c) disclose any documents located as a result of that search.
(3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).
(Rule 31.3(2) allows a party to state in his disclosure statement that he will not permit inspection of a document on the grounds that it would be disproportionate to do so)
Disclosure in stages
31.13. The parties may agree in writing, or the court may direct, that disclosure or inspection or both shall take place in stages.
Documents referred to in statements of case etc.
31.14. A party may inspect a document mentioned in— (a) a statement of case; (b) a witness statement; (c) a witness summary; (d) an affidavit(GN( � or (e) subject to rule 35.10(4), an expert’s report.
(Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report)
Inspection and copying of documents
31.15. Where a party has a right to inspect a document—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
97
(a) that party must give the party who disclosed the document written notice of his wish to inspect it;
(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and
(c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.
(Rule 31.3 and 31.14 deal with the right of a party to inspect a document)
Disclosure before proceedings start
31.16. (1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started(37).
(2) The application must be supported by evidence. (3) The court may make an order under this rule only where—
(a) the respondent is likely to be a party to subsequent proceedings; (b) the applicant is also likely to be a party to those proceedings; (c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in
rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
(d) disclosure before proceedings have started is desirable in order to— (i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without proceedings; or (iii) save costs.
(4) An order under this rule must— (a) specify the documents or the classes of documents which the respondent must disclose;
and (b) require him, when making disclosure, to specify any of those documents—
(i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection.
(5) Such an order may— (a) require the respondent to indicate what has happened to any documents which are no
longer in his control; and (b) specify the time and place for disclosure and inspection.
Orders for disclosure against a person not a party
31.17. (1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings(38).
(2) The application must be supported by evidence. (3) The court may make an order under this rule only where—
(37) An application for disclosure before proceedings have started is permitted under section 33 of the Supreme Court Act 1981(c. 54) or section 52 of the County Courts Act 1984 (c. 28).
(38) An application for disclosure against a person who is not a party to proceedings is permitted under section 34 of the Supreme Court Act 1981(c. 54) or section 53 of the County Courts Act 1984 (c. 28).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
98
(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs. (4) An order under this rule must—
(a) specify the documents or the classes of documents which the respondent must disclose; and
(b) require the respondent, when making disclosure, to specify any of those documents— (i) which are no longer in his control; or
(ii) in respect of which he claims a right or duty to withhold inspection. (5) Such an order may—
(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and
(b) specify the time and place for disclosure and inspection.
Rules not to limit other powers of the court to order disclosure
31.18. Rules 31.16 and 31.17 do not limit any other power which the court may have to order— (a) disclosure before proceedings have started; and (b) disclosure against a person who is not a party to proceedings.
Claim to withhold inspection or disclosure of a document
31.19. (1) A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.
(2) Unless the court orders otherwise, an order of the court under paragraph (1)— (a) must not be served on any other person; and (b) must not be open to inspection by any person.
(3) A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document, must state in writing—
(a) that he has such a right or duty; and (b) the grounds on which he claims that right or duty.
(4) The statement referred to in paragraph (3) must be made— (a) in the list in which the document is disclosed; or (b) if there is no list, to the person wishing to inspect the document.
(5) A party may apply to the court to decide whether a claim made under paragraph (3) should be upheld.
(6) For the purpose of deciding an application under paragraph (1) (application to withhold disclosure) or paragraph (3) (claim to withhold inspection) the court may—
(a) require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and
(b) invite any person, whether or not a party, to make representations. (7) An application under paragraph (1) or paragraph (5) must be supported by evidence.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
99
(8) This Part does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest.
Restriction on use of a privileged document inspection of which has been inadvertently allowed
31.20. Where a party inadvertently allows a privileged(GL) document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.
Consequence of failure to disclose documents or permit inspection
31.21. A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.
Subsequent use of disclosed documents
31.22. (1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where—
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree.
(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.
(3) An application for such an order may be made— (a) by a party; or (b) by any person to whom the document belongs.
PART 32 EVIDENCE
Contents of this Part
Power of court to control evidence Rule 32.1
Evidence of witnesses—general rule Rule 32.2
Evidence by video link or other means Rule 32.3
Requirement to serve witness statements for use at trial
Rule 32.4
Use at trial of witness statements which have been served
Rule 32.5
Evidence in proceedings other than at trial Rule 32.6
Order for cross-examination Rule 32.7
Form of witness statement Rule 32.8
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
100
Witness summaries Rule 32.9
Consequence of failure to serve witness statement or summary
Rule 32.10
Cross-examination on a witness statement Rule 32.11
Use of witness statements for other purposes Rule 32.12
Availability of witness statements for inspection
Rule 32.13
False statements Rule 32.14
Affidavit evidence Rule 32.15
Form of affidavit Rule 32.16
Affidavit made outside the jurisdiction Rule 32.17
Notice to admit facts Rule 32.18
Notice to admit or produce documents Rule 32.19
Power of court to control evidence
32.1. (1) The court may control the evidence by giving directions as to— (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.
(3) The court may limit cross-examination(GL).
Evidence of witnesses—general rule
32.2. (1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved—
(a) at trial, by their oral evidence given in public; and (b) at any other hearing, by their evidence in writing.
(2) This is subject— (a) to any provision to the contrary contained in these Rules or elsewhere; or (b) to any order of the court.
Evidence by video link or other means
32.3. The court may allow a witness to give evidence through a video link or by other means.
Requirement to serve witness statements for use at trial
32.4. (1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
101
(2) The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.
(3) The court may give directions as to— (a) the order in which witness statements are to be served; and (b) whether or not the witness statements are to be filed.
Use at trial of witness statements which have been served
32.5. (1) If— (a) a party has served a witness statement; and (b) he wishes to rely at trial on the evidence of the witness who made the statement,
he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence.
(Part 33 contains provisions about hearsay evidence) (2) Where a witness is called to give oral evidence under paragraph (1), his witness statement
shall stand as his evidence in chief (GL) unless the court orders otherwise. (3) A witness giving oral evidence at trial may with the permission of the court—
(a) amplify his witness statement; and (b) give evidence in relation to new matters which have arisen since the witness statement
was served on the other parties. (4) The court will give permission under paragraph (3) only if it considers that there is good
reason not to confine the evidence of the witness to the contents of his witness statement. (5) If a party who has served a witness statement does not—
(a) call the witness to give evidence at trial; or (b) put the witness statement in as hearsay evidence,
any other party may put the witness statement in as hearsay evidence.
Evidence in proceedings other than at trial
32.6. (1) Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.
(2) At hearings other than the trial, a party may, in support of his application, rely on the matters set out in—
(a) his statement of case; or (b) his application notice,
if the statement of case or application notice is verified by a statement of truth.
Order for cross-examination
32.7. (1) Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence.
(2) If the court gives permission under paragraph (1) but the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
102
Form of witness statement
32.8. A witness statement must comply with the requirements set out in the relevant practice direction.
(Part 22 requires a witness statement to be verified by a statement of truth)
Witness summaries
32.9. (1) A party who— (a) is required to serve a witness statement for use at trial; but (b) is unable to obtain one,
may apply, without notice, for permission to serve a witness summary instead. (2) A witness summary is a summary of—
(a) the evidence, if known, which would otherwise be included in a witness statement; or (b) if the evidence is not known, the matters about which the party serving the witness
summary proposes to question the witness. (3) Unless the court orders otherwise, a witness summary must include the name and address
of the intended witness. (4) Unless the court orders otherwise, a witness summary must be served within the period in
which a witness statement would have had to be served. (5) Where a party serves a witness summary, so far as practicable rules 32.4 (requirement to
serve witness statements for use at trial), 32.5(3) (amplifying witness statements), and 32.8 (form of witness statement) shall apply to the summary.
Consequence of failure to serve witness statement or summary
32.10. If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.
Cross-examination on a witness statement
32.11. Where a witness is called to give evidence at trial, he may be cross-examined on his witness statement whether or not the statement or any part of it was referred to during the witness’s evidence in chief(GL).
Use of witness statements for other purposes
32.12. (1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.
(2) Paragraph (1) does not apply if and to the extent that— (a) the witness gives consent in writing to some other use of it; (b) the court gives permission for some other use; or (c) the witness statement has been put in evidence at a hearing held in public.
Availability of witness statements for inspection
32.13. (1) A witness statement which stands as evidence in chief(GL) is open to inspection unless the court otherwise directs during the course of the trial.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
103
(2) Any person may ask for a direction that a witness statement is not open to inspection. (3) The court will not make a direction under paragraph (2) unless it is satisfied that a witness
statement should not be open to inspection because of— (a) the interests of justice; (b) the public interest; (c) the nature of any expert medical evidence in the statement; (d) the nature of any confidential information (including information relating to personal
financial matters) in the statement; or (e) the need to protect the interests of any child or patient.
(4) The court may exclude from inspection words or passages in the statement.
False statements
32.14. (1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
(Part 22 makes provision for a statement of truth) (2) Proceedings under this rule may be brought only—
(a) by the Attorney General; or (b) with the permission of the court.
Affidavit evidence
32.15. (1) Evidence must be given by affidavit(GL) instead of or in addition to a witness statement if this is required by the court, a provision contained in any other rule, a practice direction or any other enactment.
(2) Nothing in these Rules prevents a witness giving evidence by affidavit(GL) at a hearing other than the trial if he chooses to do so in a case where paragraph (1) does not apply, but the party putting forward the affidavit(GL) may not recover the additional cost of making it from any other party unless the court orders otherwise.
Form of affidavits
32.16. An affidavit(GL) must comply with the requirements set out in the relevant practice direction.
Affidavit made outside the jurisdiction
32.17. A person may make an affidavit(GL) outside the jurisdiction in accordance with— (a) this Part; or (b) the law of the place where he makes the affidavit(GL).
Notice to admit facts
32.18. (1) A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice.
(2) A notice to admit facts must be served no later than 21 days before the trial.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
104
(3) Where the other party makes any admission in response to the notice, the admission may be used against him only—
(a) in the proceedings in which the notice to admit is served; and (b) by the party who served the notice.
(4) The court may allow a party to amend or withdraw any admission made by him on such terms as it thinks just.
Notice to admit or produce documents
32.19. (1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.
(2) A notice to prove a document must be served— (a) by the latest date for serving witness statements; or (b) within 7 days of disclosure of the document,
whichever is later.
PART 33 MISCELLANEOUS RULES ABOUT EVIDENCE
Contents of this Part
Introductory Rule 33.1
Notice of intention to rely on hearsay evidence Rule 33.2
Circumstances in which notice of intention to rely on hearsay evidence is not required
Rule 33.3
Power to call witness for cross-examination on hearsay evidence
Rule 33.4
Credibility Rule 33.5
Use of plans, photographs and models as evidence
Rule 33.6
Evidence of finding on question of foreign law Rule 33.7
Evidence of consent of trustee to act Rule 33.8
Introductory
33.1. In this Part— (a) “hearsay” means a statement, made otherwise than by a person while giving oral evidence
in proceedings, which is tendered as evidence of the matters stated; and (b) references to hearsay include hearsay of whatever degree.
Notice of intention to rely on hearsay evidence
33.2. (1) Where a party intends to rely on hearsay evidence at trial and either—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
105
(a) that evidence is to be given by a witness giving oral evidence; or (b) that evidence is contained in a witness statement of a person who is not being called to
give oral evidence; that party complies with section 2(1)(a) of the Civil Evidence Act 1995(39) by serving a witness statement on the other parties in accordance with the court’s order.
(2) Where paragraph (1)(b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement—
(a) inform the other parties that the witness is not being called to give oral evidence; and (b) give the reason why the witness will not be called.
(3) In all other cases where a party intends to rely on hearsay evidence at trial, that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a notice on the other parties which—
(a) identifies the hearsay evidence; (b) states that the party serving the notice proposes to rely on the hearsay evidence at trial; and (c) gives the reason why the witness will not be called.
(4) The party proposing to rely on the hearsay evidence must— (a) serve the notice no later than the latest date for serving witness statements; and (b) if the hearsay evidence is to be in a document, supply a copy to any party who requests
him to do so.
Circumstances in which notice of intention to rely on hearsay evidence is not required
33.3. Section 2(1) of the Civil Evidence Act 1995 (duty to give notice of intention to rely on hearsay evidence) does not apply—
(a) to evidence at hearings other than trials; (b) to a statement which a party to a probate action wishes to put in evidence and which is
alleged to have been made by the person whose estate is the subject of the proceedings; or (c) where the requirement is excluded by a practice direction.
Power to call witness for cross-examination on hearsay evidence
33.4. (1) Where a party— (a) proposes to rely on hearsay evidence; and (b) does not propose to call the person who made the original statement to give oral evidence,
the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.
(2) An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant.
Credibility
33.5. (1) Where a party— (a) proposes to rely on hearsay evidence; but
(39) 1995 c. 38. Section 2 provides that a party proposing to bring hearsay evidence must notify any other party of that fact and, on request, give particulars of or relating to the evidence.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
106
(b) does not propose to call the person who made the original statement to give oral evidence; and
(c) another party wishes to call evidence to attack the credibility of the person who made the statement,
the party who so wishes must give notice of his intention to the party who proposes to give the hearsay statement in evidence.
(2) A party must give notice under paragraph (1) not more than 14 days after the day on which a hearsay notice relating to the hearsay evidence was served on him.
Use of plans, photographs and models as evidence
33.6. (1) This rule applies to evidence (such as a plan, photograph or model) which is not— (a) contained in a witness statement, affidavit(GL) or expert’s report; (b) to be given orally at trial; or (c) evidence of which prior notice must be given under rule 33.2.
(2) This rule includes documents which may be received in evidence without further proof under section 9 of the Civil Evidence Act 1995(40).
(3) Unless the court orders otherwise the evidence shall not be receivable at a trial unless the party intending to put it in evidence has given notice to the other parties in accordance with this rule.
(4) Where the party intends to use the evidence as evidence of any fact then, except where paragraph (6) applies, he must give notice not later than the latest date for serving witness statements.
(5) He must give notice at least 21 days before the hearing at which he proposes to put in the evidence, if—
(a) there are not to be witness statements; or (b) he intends to put in the evidence solely in order to disprove an allegation made in a witness
statement. (6) Where the evidence forms part of expert evidence, he must give notice when the expert’s
report is served on the other party. (7) Where the evidence is being produced to the court for any reason other than as part of factual
or expert evidence, he must give notice at least 21 days before the hearing at which he proposes to put in the evidence.
(8) Where a party has given notice that he intends to put in the evidence, he must give every other party an opportunity to inspect it and to agree to its admission without further proof.
Evidence of finding on question of foreign law
33.7. (1) This rule sets out the procedure which must be followed by a party who intends to put in evidence a finding on a question of foreign law by virtue of section 4(2) of the Civil Evidence Act 1972(41).
(2) He must give any other party notice of his intention. (3) He must give the notice—
(a) if there are to be witness statements, not later than the latest date for serving them; or
(40) Section 9 of the Civil Evidence Act 1995 provides that documents that form part of the records of a business or public authority, as defined in that section, may be received in evidence without further proof.
(41) 1972 c. 30.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
107
(b) otherwise, not less than 21 days before the hearing at which he proposes to put the finding in evidence.
(4) The notice must— (a) specify the question on which the finding was made; and (b) enclose a copy of a document where it is reported or recorded.
Evidence of consent of trustee to act
33.8. A document purporting to contain the written consent of a person to act as trustee and to bear his signature verified by some other person is evidence of such consent.
PART 34 DEPOSITIONS AND COURT ATTENDANCE BY WITNESSES
Contents of this Part
Scope of this Part Rule 34.1
Witness summonses Rule 34.2
Issue of a witness summons Rule 34.3
Witness summons in aid of inferior court or of tribunal
Rule 34.4
Time for serving a witness summons Rule 34.5
Who is to serve a witness summons Rule 34.6
Right of witness to travelling expenses and compensation for loss of time
Rule 34.7
Evidence by deposition Rule 34.8
Conduct of examination Rule 34.9
Enforcing attendance of witness Rule 34.10
Use of deposition at a hearing Rule 34.11
Restrictions on subsequent use of deposition taken for the purpose of any hearing except the trial
Rule 34.12
Where a person to be examined is out of the jurisdiction—letter of request
Rule 34.13
Fees and expenses of examiner Rule 34.14
Examiners of the court Rule 34.15
Scope of this Part
34.1. (1) This Part provides— (a) for the circumstances in which a person may be required to attend court to give evidence
or to produce a document; and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
108
(b) for a party to obtain evidence before a hearing to be used at the hearing. (2) In this Part, reference to a hearing includes a reference to the trial.
Witness summonses
34.2. (1) A witness summons is a document issued by the court requiring a witness to— (a) attend court to give evidence; or (b) produce documents to the court.
(2) A witness summons must be in the relevant practice form. (3) There must be a separate witness summons for each witness. (4) A witness summons may require a witness to produce documents to the court either—
(a) on the date fixed for a hearing; or (b) on such date as the court may direct.
(5) The only documents that a summons under this rule can require a person to produce before a hearing are documents which that person could be required to produce at the hearing.
Issue of a witness summons
34.3. (1) A witness summons is issued on the date entered on the summons by the court. (2) A party must obtain permission from the court where he wishes to—
(a) have a summons issued less than 7 days before the date of the trial; (b) have a summons issued for a witness to attend court to give evidence or to produce
documents on any date except the date fixed for the trial; or (c) have a summons issued for a witness to attend court to give evidence or to produce
documents at any hearing except the trial. (3) A witness summons must be issued by—
(a) the court where the case is proceeding; or (b) the court where the hearing in question will be held.
(4) The court may set aside(GL) or vary a witness summons issued under this rule.
Witness summons in aid of inferior court or of tribunal
34.4. (1) The court may issue a witness summons in aid of an inferior court or of a tribunal. (2) The court which issued the witness summons under this rule may set it aside. (3) In this rule, “inferior court or tribunal” means any court or tribunal that does not have power
to issue a witness summons in relation to proceedings before it.
Time for serving a witness summons
34.5. (1) The general rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the court or tribunal.
(2) The court may direct that a witness summons shall be binding although it will be served less than 7 days before the date on which the witness is required to attend before the court or tribunal.
(3) A witness summons which is— (a) served in accordance with this rule; and (b) requires the witness to attend court to give evidence,
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
109
is binding until the conclusion of the hearing at which the attendance of the witness is required.
Who is to serve a witness summons
34.6. (1) A witness summons is to be served by the court unless the party on whose behalf it is issued indicates in writing, when he asks the court to issue the summons, that he wishes to serve it himself.
(2) Where the court is to serve the witness summons, the party on whose behalf it is issued must deposit, in the court office, the money to be paid or offered to the witness under rule 34.7.
Right of witness to travelling expenses and compensation for loss of time
34.7. At the time of service of a witness summons the witness must be offered or paid— (a) a sum reasonably sufficient to cover his expenses in travelling to and from the court; and (b) such sum by way of compensation for loss of time as may be specified in the relevant
practice direction.
Evidence by deposition
34.8. (1) A party may apply for an order for a person to be examined before the hearing takes place.
(2) A person from whom evidence is to be obtained following an order under this rule is referred to as a “deponent” and the evidence is referred to as a “deposition”.
(3) An order under this rule shall be for a deponent to be examined on oath before— (a) a judge; (b) an examiner of the court; or (c) such other person as the court appoints.
(Rule 34.15 makes provision for the appointment of examiners of the court) (4) The order may require the production of any document which the court considers is necessary
for the purposes of the examination. (5) The order must state the date, time and place of the examination. (6) At the time of service of the order the deponent must be offered or paid—
(a) a sum reasonably sufficient to cover his expenses in travelling to and from the place of examination; and
(b) such sum by way of compensation for loss of time as may be specified in the relevant practice direction.
(7) Where the court makes an order for a deposition to be taken, it may also order the party who obtained the order to serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.
(Part 32 contains the general rules about witness statements and witness summaries)
Conduct of examination
34.9. (1) Subject to any directions contained in the order for examination, the examination must be conducted in the same way as if the witness were giving evidence at a trial.
(2) If all the parties are present, the examiner may conduct the examination of a person not named in the order for examination if all the parties and the person to be examined consent.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
110
(3) The examiner may conduct the examination in private if he considers it appropriate to do so. (4) The examiner must ensure that the evidence given by the witness is recorded in full. (5) The examiner must send a copy of the deposition—
(a) to the person who obtained the order for the examination of the witness; and (b) to the court where the case is proceeding.
(6) The party who obtained the order must send each of the other parties a copy of the deposition which he receives from the examiner.
Enforcing attendance of witness
34.10. (1) If a person served with an order to attend before an examiner— (a) fails to attend; or (b) refuses to be sworn for the purpose of the examination or to answer any lawful question
or produce any document at the examination, a certificate of his failure or refusal, signed by the examiner, must be filed by the party requiring the deposition.
(2) On the certificate being filed, the party requiring the deposition may apply to the court for an order requiring that person to attend or to be sworn or to answer any question or produce any document, as the case may be.
(3) An application for an order under this rule may be made without notice. (4) The court may order the person against whom an order is made under this rule to pay any
costs resulting from his failure or refusal.
Use of deposition at a hearing
34.11. (1) A deposition ordered under rule 34.8 may be given in evidence at a hearing unless the court orders otherwise.
(2) A party intending to put in evidence a deposition at a hearing must serve notice of his intention to do so on every other party.
(3) He must serve the notice at least 21 days before the day fixed for the hearing. (4) The court may require a deponent to attend the hearing and give evidence orally. (5) Where a deposition is given in evidence at trial, it shall be treated as if it were a witness
statement for the purposes of rule 32.13 (availability of witness statements for inspection).
Restrictions on subsequent use of deposition taken for the purpose of any hearing except the trial
34.12. (1) Where the court orders a party to be examined about his or any other assets for the purpose of any hearing except the trial, the deposition may be used only for the purpose of the proceedings in which the order was made.
(2) However, it may be used for some other purpose— (a) by the party who was examined; (b) if the party who was examined agrees; or (c) if the court gives permission.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
111
Where a person to be examined is out of the jurisdiction—letter of request
34.13. (1) Where a party wishes to take a deposition from a person outside the jurisdiction, the High Court may order the issue of a letter of request to the judicial authorities of the country in which the proposed deponent is.
(2) A letter of request is a request to a judicial authority to take the evidence of that person, or arrange for it to be taken.
(3) The High Court may make an order under this rule in relation to county court proceedings. (4) If the government of the country to which the letter is sent allows a person appointed by the
High Court to examine a person in that country, the High Court may make an order appointing a special examiner for that purpose.
(5) A person may be examined under this rule on oath or affirmation or in accordance with any procedure permitted in the country in which the examination is to take place.
(6) If the High Court makes an order for the issue of a letter of request, the party who sought the order must file—
(a) the following documents and, except where paragraph (7) applies, a translation of them— (i) a draft letter of request;
(ii) a statement of the issues relevant to the proceedings; (iii) a list of questions or the subject matter of questions to be put to the person to be
examined; and (b) an undertaking to be responsible for the Secretary of State’s expenses.
(7) There is no need to file a translation if— (a) English is one of the official languages of the country where the examination is to take
place; or (b) a practice direction has specified that country as a country where no translation is
necessary.
Fees and expenses of examiner
34.14. (1) The examiner may charge a fee for the examination. (2) He need not send the deposition to the court unless the fee is paid. (3) The examiner’s fees and expenses must be paid by the party who obtained the order for
examination. (4) If the fees and expenses due to an examiner are not paid within a reasonable time, he may
report that fact to the court. (5) The court may order the party who obtained the order for examination to deposit in the court
office a specified sum in respect of the examiner’s fees and, where it does so, the examiner will not be asked to act until the sum has been deposited.
(6) An order under this rule does not affect any decision as to the party who is ultimately to bear the costs of the examination.
Examiners of the court
34.15. (1) The Lord Chancellor shall appoint persons to be examiners of the court. (2) The persons appointed shall be barristers or solicitor-advocates who have been practising for
a period of not less than three years. (3) The Lord Chancellor may revoke an appointment at any time.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
112
PART 35 EXPERTS AND ASSESSORS
Contents of this Part
Duty to restrict expert evidence Rule 35.1
Interpretation Rule 35.2
Experts—overriding duty to the court Rule 35.3
Court’s power to restrict expert evidence Rule 35.4
General requirement for expert evidence to be given in written report
Rule 35.5
Written questions to experts Rule 35.6
Court’s power to direct that evidence is to be given by a single joint expert
Rule 35.7
Instructions to a single joint expert Rule 35.8
Power of court to direct party to provide information
Rule 35.9
Contents of report Rule 35.10
Use by one party of expert’s report disclosed by another
Rule 35.11
Discussions between experts Rule 35.12
Consequence of failure to disclose expert’s report
Rule 35.13
Expert’s right to ask court for directions Rule 35.14
Assessors Rule 35.15
Duty to restrict expert evidence
35.1. Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.
Interpretation
35.2. A reference to an “expert” in this Part is a reference to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings.
Experts—overriding duty to the court
35.3. (1) It is the duty of an expert to help the court on the matters within his expertise. (2) This duty overrides any obligation to the person from whom he has received instructions or
by whom he is paid.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
113
Court’s power to restrict expert evidence
35.4. (1) No party may call an expert or put in evidence an expert’s report without the court’s permission.
(2) When a party applies for permission under this rule he must identify— (a) the field in which he wishes to rely on expert evidence; and (b) where practicable the expert in that field on whose evidence he wishes to rely.
(3) If permission is granted under this rule it shall be in relation only to the expert named or the field identified under paragraph (2).
(4) The court may limit the amount of the expert’s fees and expenses that the party who wishes to rely on the expert may recover from any other party.
General requirement for expert evidence to be given in a written report
35.5. (1) Expert evidence is to be given in a written report unless the court directs otherwise. (2) If a claim is on the fast track, the court will not direct an expert to attend a hearing unless it
is necessary to do so in the interests of justice.
Written questions to experts
35.6. (1) A party may put to— (a) an expert instructed by another party; or (b) a single joint expert appointed under rule 35.7,
written questions about his report. (2) Written questions under paragraph (1)—
(a) may be put once only; (b) must be put within 28 days of service of the expert’s report; and (c) must be for the purpose only of clarification of the report,
unless in any case, (i) the court gives permission; or
(ii) the other party agrees. (3) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as
part of the expert’s report. (4) Where—
(a) a party has put a written question to an expert instructed by another party in accordance with this rule; and
(b) the expert does not answer that question, the court may make one or both of the following orders in relation to the party who instructed the expert—
(i) that the party may not rely on the evidence of that expert; or (ii) that the party may not recover the fees and expenses of that expert from any other party.
Court’s power to direct that evidence is to be given by a single joint expert
35.7. (1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to given by one expert only.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
114
(2) The parties wishing to submit the expert evidence are called “the instructing parties”. (3) Where the instructing parties cannot agree who should be the expert, the court may—
(a) select the expert from a list prepared or identified by the instructing parties; or (b) direct that the expert be selected in such other manner as the court may direct.
Instructions to a single joint expert
35.8. (1) Where the court gives a direction under rule 35.7 for a single joint expert to be used, each instructing party may give instructions to the expert.
(2) When an instructing party gives instructions to the expert he must, at the same time, send a copy of the instructions to the other instructing parties.
(3) The court may give directions about— (a) the payment of the expert’s fees and expenses; and (b) any inspection, examination or experiments which the expert wishes to carry out.
(4) The court may, before an expert is instructed— (a) limit the amount that can be paid by way of fees and expenses to the expert; and (b) direct that the instructing parties pay that amount into court.
(5) Unless the court otherwise directs, the instructing parties are jointly and severally liable(GL) for the payment of the expert’s fees and expenses.
Power of court to direct a party to provide information
35.9. Where a party has access to information which is not reasonably available to the other party, the court may direct the party who has access to the information to—
(a) prepare and file a document recording the information; and (b) serve a copy of that document on the other party.
Contents of report
35.10. (1) An expert’s report must comply with the requirements set out in the relevant practice direction.
(2) At the end of an expert’s report there must be a statement that— (a) the expert understands his duty to the court; and (b) he has complied with that duty.
(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.
(4) The instructions referred to in paragraph (3) shall not be privileged(GL) against disclosure but the court will not, in relation to those instructions—
(a) order disclosure of any specific document; or (b) permit any questioning in court, other than by the party who instructed the expert,
unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
115
Use by one party of expert’s report disclosed by another
35.11. Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial.
Discussions between experts
35.12. (1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to—
(a) identify the issues in the proceedings; and (b) where possible, reach agreement on an issue.
(2) The court may specify the issues which the experts must discuss. (3) The court may direct that following a discussion between the experts they must prepare a
statement for the court showing— (a) those issues on which they agree; and (b) those issues on which they disagree and a summary of their reasons for disagreeing.
(4) The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.
(5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.
Consequence of failure to disclose expert’s report
35.13. A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.
Expert’s right to ask court for directions
35.14. (1) An expert may file a written request for directions to assist him in carrying out his function as an expert.
(2) An expert may request directions under paragraph (1) without giving notice to any party. (3) The court, when it gives directions, may also direct that a party be served with—
(a) a copy of the directions; and (b) a copy of the request for directions.
Assessors
35.15. (1) This rule applies where the court appoints one or more persons (an “assessor”) under section 70 of the Supreme Court Act 1981(42) or section 63 of the County Courts Act 1984(43).
(2) The assessor shall assist the court in dealing with a matter in which the assessor has skill and experience.
(3) An assessor shall take such part in the proceedings as the court may direct and in particular the court may—
(a) direct the assessor to prepare a report for the court on any matter at issue in the proceedings; and
(42) 1981 c. 54. (43) 1984 c. 28. Section 63 was amended by S.I. 1998/2940.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
116
(b) direct the assessor to attend the whole or any part of the trial to advise the court on any such matter.
(4) If the assessor prepares a report for the court before the trial has begun— (a) the court will send a copy to each of the parties; and (b) the parties may use it at trial.
(5) The remuneration to be paid to the assessor for his services shall be determined by the court and shall form part of the costs of the proceedings.
(6) The court may order any party to deposit in the court office a specified sum in respect of the assessor’s fees and, where it does so, the assessor will not be asked to act until the sum has been deposited.
(7) Paragraphs (5) and (6) do not apply where the remuneration of the assessor is to be paid out of money provided by Parliament.
PART 36 OFFERS TO SETTLE AND PAYMENTS INTO COURT
Contents of this Part
Scope of this Part Rule 36.1
Part 36 offers and Part 36 payments—general provisions
Rule 36.2
A defendant’s offer to settle a money claim requires a Part 36 payment
Rule 36.3
Defendant’s offer to settle the whole of a claim which includes both a money claim and a non- money claim
Rule 36.4
Form and content of a Part 36 offer Rule 36.5
Notice of a Part 36 payment Rule 36.6
Offer to settle a claim for provisional damages Rule 36.7
Time when a Part 36 offer or a Part 36 payment is made and accepted
Rule 36.8
Clarification of a Part 36 offer or a Part 36 payment notice
Rule 36.9
Court to take into account offer to settle made before commencement of proceedings
Rule 36.10
Time for acceptance of a defendant’s Part 36 offer or Part 36 payment
Rule 36.11
Time for acceptance of a claimant’s Part 36 offer
Rule 36.12
Costs consequences of acceptance of a defendant’s Part 36 offer or Part 36 payment
Rule 36.13
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
117
Costs consequences of acceptance of a claimant’s Part 36 offer
Rule 36.14
The effect of acceptance of a Part 36 offer or a Part 36 payment
Rule 36.15
Payment out of a sum in court on the acceptance of a Part 36 payment
Rule 36.16
Acceptance of a Part 36 offer or a Part 36 payment made by one or more, but not all, defendants
Rule 36.17
Other cases where a court order is required to enable acceptance of a Part 36 offer or a Part 36 payment
Rule 36.18
Restriction on disclosure of a Part 36 offer or a Part 36 payment
Rule 36.19
Costs consequences where claimant fails to do better than a Part 36 offer or a Part 36 payment
Rule 36.20
Costs and other consequences where claimant does better than he proposed in his Part 36 offer
Rule 36.21
Interest Rule 36.22
Deduction of benefits Rule 36.23
Scope of this Part
36.1. (1) This Part contains rules about— (a) offers to settle and payments into court; and (b) the consequences where an offer to settle or payment into court is made in accordance
with this Part. (2) Nothing in this Part prevents a party making an offer to settle in whatever way he chooses,
but if that offer is not made in accordance with this Part, it will only have the consequences specified in this Part if the court so orders.
(Part 36 applies to Part 20 claims by virtue of rule 20.3)
Part 36 offers and Part 36 payments—general provisions
36.2. (1) An offer made in accordance with the requirements of this Part is called— (a) if made by way of a payment into court, “a Part 36 payment”; (b) otherwise “a Part 36 offer”.
(Rule 36.3 sets out when an offer has to be made by way of a payment into court) (2) The party who makes an offer is the “offeror”. (3) The party to whom an offer is made is the “offeree”. (4) A Part 36 offer or a Part 36 payment—
(a) may be made at any time after proceedings have started; and (b) may be made in appeal proceedings.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
118
(5) A Part 36 offer or a Part 36 payment shall not have the consequences set out in this Part while the claim is being dealt with on the small claims track unless the court orders otherwise.
(Part 26 deals with allocation to the small claims track)
(Rule 27.2 provides that Part 36 does not apply to small claims)
A defendant’s offer to settle a money claim requires a Part 36 payment
36.3. (1) Subject to rules 36.5(5) and 36.23, an offer by a defendant to settle a money claim will not have the consequences set out in this Part unless it is made by way of a Part 36 payment.
(2) A Part 36 payment may only be made after proceedings have started.
(Rule 36.5(5) permits a Part 36 offer to be made by reference to an interim payment) (Rule 36.10 makes provision for an offer to settle a money claim before the commencement of proceedings) (Rule 36.23 makes provision for where benefit is recoverable under the Social Security (Recovery of Benefit) Act 1997(44))
Defendant’s offer to settle the whole of a claim which includes both a money claim and a non-money claim
36.4. (1) This rule applies where a defendant to a claim which includes both a money claim and a non-money claim wishes—
(a) to make an offer to settle the whole claim which will have the consequences set out in this Part; and
(b) to make an offer in respect of both the money claim and the non-money claim. (2) The defendant must—
(a) make a Part 36 payment in relation to the money claim; and (b) make a Part 36 offer in relation to the non-money claim.
(3) The Part 36 payment notice must— (a) identify the document which sets out the terms of the Part 36 offer; and (b) state that if the claimant gives notice of acceptance of the Part 36 payment he will be
treated as also accepting the Part 36 offer.
(Rule 36.6 makes provision for a Part 36 payment notice) (4) If the claimant gives notice of acceptance of the Part 36 payment, he shall also be taken as
giving notice of acceptance of the Part 36 offer in relation to the non-money claim.
Form and content of a Part 36 offer
36.5. (1) A Part 36 offer must be in writing. (2) A Part 36 offer may relate to the whole claim or to part of it or to any issue that arises in it. (3) A Part 36 offer must—
(a) state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue;
(b) state whether it takes into account any counterclaim; and
(44) 1997 c. 27.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
119
(c) if it is expressed not to be inclusive of interest, give the details relating to interest set out in rule 36.22(2).
(4) A defendant may make a Part 36 offer limited to accepting liability up to a specified proportion.
(5) A Part 36 offer may be made by reference to an interim payment.
(Part 25 contains provisions relating to interim payments) (6) A Part 36 offer made not less than 21 days before the start of the trial must—
(a) be expressed to remain open for acceptance for 21 days from the date it is made; and (b) provide that after 21 days the offeree may only accept it if—
(i) the parties agree the liability for costs; or (ii) the court gives permission.
(7) A Part 36 offer made less than 21 days before the start of the trial must state that the offeree may only accept it if—
(a) the parties agree the liability for costs; or (b) the court gives permission.
(Rule 36.8 makes provision for when a Part 36 offer is treated as being made) (8) If a Part 36 offer is withdrawn it will not have the consequences set out in this Part.
Notice of a Part 36 payment
36.6. (1) A Part 36 payment may relate to the whole claim or part of it or to an issue that arises in it.
(2) A defendant who makes a Part 36 payment must file with the court a notice (“Part 36 payment notice”) which—
(a) states the amount of the payment; (b) states whether the payment relates to the whole claim or to part of it or to any issue that
arises in it and if so to which part or issue; (c) states whether it takes into account any counterclaim; (d) if an interim payment has been made, states that the defendant has taken into account the
interim payment; and (e) if it is expressed not to be inclusive of interest, gives the details relating to interest set out
in rule 36.22(2).
(Rule 25.6 makes provision for an interim payment) (Rule 36.4 provides for further information to be included where a defendant wishes to settle the whole of a claim which includes a money claim and a non-money claim) (Rule 36.23 makes provision for extra information to be included in the payment notice in a case where benefit is recoverable under the Social Security (Recovery of Benefit) Act 1997)
36.6. (3) The court will serve the Part 36 payment notice on the offeree unless the offeror informs the court, when the money is paid into court, that the offeror has served the notice.
(4) Where the offeror serves the Part 36 payment notice he must file a certificate of service.
(Rule 6.10 specifies what must be contained in a certificate of service) (5) A Part 36 payment may be withdrawn only with the permission of the court.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
120
Offer to settle a claim for provisional damages
36.7. (1) A defendant may make a Part 36 payment in respect of a claim which includes a claim for provisional damages.
(2) Where he does so, the Part 36 payment notice must specify whether or not the defendant is offering to agree to the making of an award of provisional damages.
(3) Where the defendant is offering to agree to the making of an award of provisional damages the payment notice must also state—
(a) that the sum paid into court is in satisfaction of the claim for damages on the assumption that the injured person will not develop the disease or suffer the type of deterioration specified in the notice;
(b) that the offer is subject to the condition that the claimant must make any claim for further damages within a limited period; and
(c) what that period is. (4) Where a Part 36 payment is—
(a) made in accordance with paragraph (3); and (b) accepted within the relevant period in rule 36.11,
the Part 36 payment will have the consequences set out in rule 36.13, unless the court orders otherwise.
(5) If the claimant accepts the Part 36 payment he must, within 7 days of doing so, apply to the court for an order for an award of provisional damages under rule 41.2.
(Rule 41.2 provides for an order for an award of provisional damages) (6) The money in court may not be paid out until the court has disposed of the application made
in accordance with paragraph (5).
Time when a Part 36 offer or a Part 36 payment is made and accepted
36.8. (1) A Part 36 offer is made when received by the offeree. (2) A Part 36 payment is made when written notice of the payment into court is served on the
offeree. (3) An improvement to a Part 36 offer will be effective when its details are received by the offeree. (4) An increase in a Part 36 payment will be effective when notice of the increase is served on
the offeree. (5) A Part 36 offer or Part 36 payment is accepted when notice of its acceptance is received by
the offeror.
Clarification of a Part 36 offer or a Part 36 payment notice
36.9. (1) The offeree may, within 7 days of a Part 36 offer or payment being made, request the offeror to clarify the offer or payment notice.
(2) If the offeror does not give the clarification requested under paragraph (1) within 7 days of receiving the request, the offeree may, unless the trial has started, apply for an order that he does so.
(3) If the court makes an order under paragraph (2), it must specify the date when the Part 36 offer or Part 36 payment is to be treated as having been made.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
121
Court to take into account offer to settle made before commencement of proceedings
36.10. (1) If a person makes an offer to settle before proceedings are begun which complies with the provisions of this rule, the court will take that offer into account when making any order as to costs.
(2) The offer must— (a) be expressed to be open for at least 21 days after the date it was made; (b) if made by a person who would be a defendant were proceedings commenced, include an
offer to pay the costs of the offeree incurred up to the date 21 days after the date it was made; and
(c) otherwise comply with this Part. (3) If the offeror is a defendant to a money claim—
(a) he must make a Part 36 payment within 14 days of service of the claim form; and (b) the amount of the payment must be not less than the sum offered before proceedings began.
(4) An offeree may not, after proceedings have begun, accept— (a) an offer made under paragraph (2); or (b) a Part 36 payment made under paragraph (3),
without the permission of the court. (5) An offer under this rule is made when it is received by the offeree.
Time for acceptance of a defendant’s Part 36 offer or Part 36 payment
36.11. (1) A claimant may accept a Part 36 offer or a Part 36 payment made not less than 21 days before the start of the trial without needing the court’s permission if he gives the defendant written notice of acceptance not later than 21 days after the offer or payment was made.
(Rule 36.13 sets out the costs consequences of accepting a defendant’s offer or payment without needing the permission of the court)
(2) If— (a) a defendant’s Part 36 offer or Part 36 payment is made less than 21 days before the start
of the trial; or (b) the claimant does not accept it within the period specified in paragraph (1)—
(i) if the parties agree the liability for costs, the claimant may accept the offer or payment without needing the permission of the court;
(ii) if the parties do not agree the liability for costs the claimant may only accept the offer or payment with the permission of the court.
(3) Where the permission of the court is needed under paragraph (2) the court will, if it gives permission, make an order as to costs.
Time for acceptance of a claimant’s Part 36 offer
36.12. (1) A defendant may accept a Part 36 offer made not less than 21 days before the start of the trial without needing the court’s permission if he gives the claimant written notice of acceptance not later than 21 days after the offer was made.
(Rule 36.14 sets out the costs consequences of accepting a claimant’s offer without needing the permission of the court)
(2) If—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
122
(a) a claimant’s Part 36 offer is made less than 21 days before the start of the trial; or (b) the defendant does not accept it within the period specified in paragraph (1)—
(i) if the parties agree the liability for costs, the defendant may accept the offer without needing the permission of the court;
(ii) if the parties do not agree the liability for costs the defendant may only accept the offer with the permission of the court.
(3) Where the permission of the court is needed under paragraph (2) the court will, if it gives permission, make an order as to costs.
Costs consequences of acceptance of a defendant’s Part 36 offer or Part 36 payment
36.13. (1) Where a Part 36 offer or a Part 36 payment is accepted without needing the permission of the court the claimant will be entitled to his costs of the proceedings up to the date of serving notice of acceptance.
(2) Where— (a) a Part 36 offer or a Part 36 payment relates to part only of the claim; and (b) at the time of serving notice of acceptance the claimant abandons the balance of the claim,
the claimant will be entitled to his costs of the proceedings up to the date of serving notice of acceptance, unless the court orders otherwise.
(3) The claimant’s costs include any costs attributable to the defendant’s counterclaim if the Part 36 offer or the Part 36 payment notice states that it takes into account the counterclaim.
(4) Costs under this rule will be payable on the standard basis if not agreed.
Costs consequences of acceptance of a claimant’s Part 36 offer
36.14. Where a claimant’s Part 36 offer is accepted without needing the permission of the court the claimant will be entitled to his costs of the proceedings up to the date upon which the defendant serves notice of acceptance.
The effect of acceptance of a Part 36 offer or a Part 36 payment
36.15. (1) If a Part 36 offer or Part 36 payment relates to the whole claim and is accepted, the claim will be stayed(GL).
(2) In the case of acceptance of a Part 36 offer which relates to the whole claim— (a) the stay(GL) will be upon the terms of the offer; and (b) either party may apply to enforce those terms without the need for a new claim.
(3) If a Part 36 offer or a Part 36 payment which relates to part only of the claim is accepted— (a) the claim will be stayed(GL) as to that part; and (b) unless the parties have agreed costs, the liability for costs shall be decided by the court.
(4) If the approval of the court is required before a settlement can be binding, any stay(GL) which would otherwise arise on the acceptance of a Part 36 offer or a Part 36 payment will take effect only when that approval has been given.
(5) Any stay(GL) arising under this rule will not affect the power of the court— (a) to enforce the terms of a Part 36 offer; (b) to deal with any question of costs (including interest on costs) relating to the proceedings;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
123
(c) to order payment out of court of any sum paid into court. (6) Where—
(a) a Part 36 offer has been accepted; and (b) a party alleges that—
(i) the other party has not honoured the terms of the offer; and (ii) he is therefore entitled to a remedy for breach of contract,
the party may claim the remedy by applying to the court without the need to start a new claim unless the court orders otherwise.
Payment out of a sum in court on the acceptance of a Part 36 payment
36.16. Where a Part 36 payment is accepted the claimant obtains payment out of the sum in court by making a request for payment in the practice form.
Acceptance of a Part 36 offer or a Part 36 payment made by one or more, but not all, defendants
36.17. (1) This rule applies where the claimant wishes to accept a Part 36 offer or a Part 36 payment made by one or more, but not all, of a number of defendants.
(2) If the defendants are sued jointly or in the alternative, the claimant may accept the offer or payment without needing the permission of the court in accordance with rule 36.11(1) if—
(a) he discontinues his claim against those defendants who have not made the offer or payment; and
(b) those defendants give written consent to the acceptance of the offer or payment.
(3) If the claimant alleges that the defendants have a several liability(GL) to him the claimant may—
(a) accept the offer or payment in accordance with rule 36.11(1); and (b) continue with his claims against the other defendants.
(4) In all other cases the claimant must apply to the court for— (a) an order permitting a payment out to him of any sum in court; and (b) such order as to costs as the court considers appropriate.
Other cases where a court order is required to enable acceptance of a Part 36 offer or a Part 36 payment
36.18. (1) Where a Part 36 offer or a Part 36 payment is made in proceedings to which rule 21.10 applies—
(a) the offer or payment may be accepted only with the permission of the court; and (b) no payment out of any sum in court shall be made without a court order.
(Rule 21.10 deals with compromise etc. by or on behalf of a child or patient) (2) Where the court gives a claimant permission to accept a Part 36 offer or payment after the
trial has started— (a) any money in court may be paid out only with a court order; and (b) the court must, in the order, deal with the whole costs of the proceedings.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
124
(3) Where a claimant accepts a Part 36 payment after a defence of tender before claim(GL) has been put forward by the defendant, the money in court may be paid out only after an order of the court.
(Rule 37.3 requires a defendant who wishes to rely on a defence of tender before claim(GL) to make a payment into court)
Restriction on disclosure of a Part 36 offer or a Part 36 payment
36.19. (1) A Part 36 offer will be treated as “without prejudice(GL) except as to costs”. (2) The fact that a Part 36 payment has been made shall not be communicated to the trial judge
until all questions of liability and the amount of money to be awarded have been decided. (3) Paragraph (2) does not apply—
(a) where the defence of tender before claim(GL) has been raised; (b) where the proceedings have been stayed(GL) under rule 36.15 following acceptance of a
Part 36 offer or Part 36 payment; or (c) where—
(i) the issue of liability has been determined before any assessment of the money claimed; and
(ii) the fact that there has or has not been a Part 36 payment may be relevant to the question of the costs of the issue of liability.
Costs consequences where claimant fails to do better than a Part 36 offer or a Part 36 payment
36.20. (1) This rule applies where at trial a claimant— (a) fails to better a Part 36 payment; or (b) fails to obtain a judgment which is more advantageous than a Part 36 offer.
(2) Unless it considers it unjust to do so, the court will order the claimant to pay any costs incurred by the defendant after the latest date on which the payment or offer could have been accepted without needing the permission of the court.
(Rule 36.11 sets out the time for acceptance of a defendant’s Part 36 offer or Part 36 payment)
Costs and other consequences where claimant does better than he proposed in his Part 36 offer
36.21. (1) This rule applies where at trial— (a) a defendant is held liable for more; or (b) the judgment against a defendant is more advantageous to the claimant,
than the proposals contained in a claimant’s Part 36 offer. (2) The court may order interest on the whole or part of any sum of money (excluding interest)
awarded to the claimant at a rate not exceeding 10% above base rate (GL) for some or all of the period starting with the latest date on which the defendant could have accepted the offer without needing the permission of the court.
(3) The court may also order that the claimant is entitled to— (a) his costs on the indemnity basis from the latest date when the defendant could have
accepted the offer without needing the permission of the court; and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
125
(b) interest on those costs at a rate not exceeding 10% above base rate(GL). (4) Where this rule applies, the court will make the orders referred to in paragraphs (2) and (3)
unless it considers it unjust to do so.
(Rule 36.12 sets out the latest date when the defendant could have accepted the offer) (5) In considering whether it would be unjust to make the orders referred to in paragraphs (2)
and (3) above, the court will take into account all the circumstances of the case including— (a) the terms of any Part 36 offer; (b) the stage in the proceedings when any Part 36 offer or Part 36 payment was made; (c) the information available to the parties at the time when the Part 36 offer or Part 36 payment
was made; and (d) the conduct of the parties with regard to the giving or refusing to give information for the
purposes of enabling the offer or payment into court to be made or evaluated. (6) The power of the court under this rule is in addition to any other power it may have to award
interest.
Interest
36.22. (1) Unless— (a) a claimant’s Part 36 offer which offers to accept a sum of money; or (b) a Part 36 payment notice,
indicates to the contrary, any such offer or payment will be treated as inclusive of all interest until the last date on which it could be accepted without needing the permission of the court.
(2) Where a claimant’s Part 36 offer or Part 36 payment notice is expressed not to be inclusive of interest, the offer or notice must state—
(a) whether interest is offered; and (b) if so, the amount offered, the rate or rates offered and the period or periods for which it
is offered.
Deduction of benefits
36.23. (1) This rule applies where a payment to a claimant following acceptance of a Part 36 offer or Part 36 payment into court would be a compensation payment as defined in section 1 of the Social Security (Recovery of Benefits) Act 1997(45).
(2) A defendant to a money claim may make an offer to settle the claim which will have the consequences set out in this Part, without making a Part 36 payment if—
(a) at the time he makes the offer he has applied for, but not received, a certificate of recoverable benefit; and
(b) he makes a Part 36 payment not more than 7 days after he receives the certificate.
(Section 1 of the 1997 Act defines “recoverable benefit”) (3) A Part 36 payment notice must state—
(a) the amount of gross compensation; (b) the name and amount of any benefit by which that gross amount is reduced in accordance
with section 8 and Schedule 2 to the 1997 Act; and
(45) 1997 c. 27.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
126
(c) that the sum paid in is the net amount after deduction of the amount of benefit. (4) For the purposes of rule 36.20, a claimant fails to better a Part 36 payment if he fails to obtain
judgment for more than the gross sum specified in the Part 36 payment notice. (5) Where—
(a) a Part 36 payment has been made; and (b) application is made for the money remaining in court to be paid out,
the court may treat the money in court as being reduced by a sum equivalent to any further recoverable benefits paid to the claimant since the date of payment into court and may direct payment out accordingly.
PART 37 MISCELLANEOUS PROVISIONS ABOUT PAYMENTS INTO COURT
Contents of this Part
Money paid into court under a court order— general
Rule 37.1
Money paid into court may be treated as a Part 36 payment
Rule 37.2
Money paid into court where defendant wishes to rely on defence of tender before claim
Rule 37.3
Proceedings under Fatal Accidents Act 1976 and Law Reform (Miscellaneous Provisions) Act 1934—apportionment by court
Rule 37.4
Money paid into court under a court order—general
37.1. (1) When a party makes a payment into court under a court order, the court will give notice of the payment to every other party.
(2) Money paid into court under a court order may not be paid out without the court’s permission except where—
(a) the defendant treats the money as a Part 36 payment under rule 37.2; and (b) the claimant accepts the Part 36 payment without needing the permission of the court.
(Rule 36.11 sets out when the claimant can accept a Part 36 payment without needing the permission of the court)
Money paid into court may be treated as a Part 36 payment
37.2. (1) Where a defendant makes a payment into court following an order made under rule 3.1(3) or 3.1(5) he may choose to treat the whole or any part of the money paid into court as a Part 36 payment.
(Rule 36.2 defines a Part 36 payment) (2) To do this he must file a Part 36 payment notice.
(Rule 36.6 sets out what a Part 36 payment notice must contain and provides for the court to serve it on the other parties)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
127
(3) If he does so Part 36 applies to the money as if he had paid it into court as a Part 36 payment.
Money paid into court where defendant wishes to rely on defence of tender before claim
37.3. (1) Where a defendant wishes to rely on a defence of tender before claim(GL) he must make a payment into court of the amount he says was tendered.
(2) If the defendant does not make a payment in accordance with paragraph (1) the defence of tender before claim(GL) will not be available to him until he does so.
(3) Where the defendant makes such payment into court— (a) he may choose to treat the whole or any part of the money paid into court as a Part 36
payment; and (b) if he does so, he must file a Part 36 payment notice.
Proceedings under Fatal Accidents Act 1976(46) and Law Reform (Miscellaneous Provisions) Act 1934(47)—apportionment by court
37.4. (1) Where— (a) a claim includes claims arising under—
(i) the Fatal Accidents Act 1976; and (ii) the Law Reform (Miscellaneous Provisions) Act 1934;
(b) a single sum of money is paid into court in satisfaction of those claims; and (c) the money is accepted,
the court shall apportion the money between the different claims. (2) The court shall apportion money under paragraph (1)—
(a) when it gives directions under rule 21.11 (control of money received by a child or patient); or
(b) if rule 21.11 does not apply, when it gives permission for the money to be paid out of court. (3) Where, in an action in which a claim under the Fatal Accidents Act 1976 is made by or on
behalf of more than one person— (a) a sum in respect of damages is ordered or agreed to be paid in satisfaction of the claim; or (b) a sum of money is accepted in satisfaction of the claim,
the court shall apportion it between the persons entitled to it unless it has already been apportioned by the court, a jury, or agreement between the parties.
PART 38 DISCONTINUANCE
Contents of this Part
Scope of this Part Rule 38.1
Right to discontinue claim Rule 38.2
(46) 1976 c. 30. (47) 1934 c. 41.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
128
Procedure for discontinuing Rule 38.3
Right to apply to have notice of discontinuance set aside
Rule 38.4
When discontinuance takes effect where permission of the court is not needed
Rule 38.5
Liability for costs Rule 38.6
Discontinuance and subsequent proceedings Rule 38.7
Stay of remainder of partly discontinued proceedings where costs not paid
Rule 38.8
Scope of this Part
38.1. (1) The rules in this Part set out the procedure by which a claimant may discontinue all or part of a claim.
(2) A claimant who— (a) claims more than one remedy; and (b) subsequently abandons his claim to one or more of the remedies but continues with his
claim for the other remedies, is not treated as discontinuing all or part of a claim for the purposes of this Part.
(The procedure for amending a statement of case, set out in Part 17, applies where a claimant abandons a claim for a particular remedy but wishes to continue with his claim for other remedies)
Right to discontinue claim
38.2. (1) A claimant may discontinue all or part of a claim at any time. (2) However—
(a) a claimant must obtain the permission of the court if he wishes to discontinue all or part of a claim in relation to which—
(i) the court has granted an interim injunction(GN( � or (ii) any party has given an undertaking to the court;
(b) where the claimant has received an interim payment in relation to a claim (whether voluntarily or pursuant to an order under Part 25), he may discontinue that claim only if—
(i) the defendant who made the interim payment consents in writing; or (ii) the court gives permission;
(c) where there is more than one claimant, a claimant may not discontinue unless— (i) every other claimant consents in writing; or
(ii) the court gives permission. (3) Where there is more than one defendant, the claimant may discontinue all or part of a claim
against all or any of the defendants.
Procedure for discontinuing
38.3. (1) To discontinue a claim or part of a claim, a claimant must— (a) file a notice of discontinuance; and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
129
(b) serve a copy of it on every other party to the proceedings. (2) The claimant must state in the notice of discontinuance which he files that he has served
notice of discontinuance on every other party to the proceedings. (3) Where the claimant needs the consent of some other party, a copy of the necessary consent
must be attached to the notice of discontinuance. (4) Where there is more than one defendant, the notice of discontinuance must specify against
which defendants the claim is discontinued.
Right to apply to have notice of discontinuance set aside
38.4. (1) Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside(GL).
(2) The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him.
When discontinuance takes effect where permission of the court is not needed
38.5. (1) Discontinuance against any defendant takes effect on the date when notice of discontinuance is served on him under rule 38.3(1).
(2) Subject to rule 38.4, the proceedings are brought to an end as against him on that date. (3) However, this does not affect proceedings to deal with any question of costs.
Liability for costs
38.6. (1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom he discontinues incurred on or before the date on which notice of discontinuance was served on him.
(2) If proceedings are only partly discontinued— (a) the claimant is liable under paragraph (1) for costs relating only to the part of the
proceedings which he is discontinuing; and (b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be
assessed until the conclusion of the rest of the proceedings. (3) This rule does not apply to claims allocated to the small claims track.
(Rule 44.12 provides for the basis of assessment where right to costs arises on discontinuance)
Discontinuance and subsequent proceedings
38.7. A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if—
(a) he discontinued the claim after the defendant filed a defence; and (b) the other claim arises out of facts which are the same or substantially the same as those
relating to the discontinued claim.
Stay of remainder of partly discontinued proceedings where costs not paid
38.8. (1) This rule applies where— (a) proceedings are partly discontinued; (b) a claimant is liable to pay costs under rule 38.6; and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
130
(c) the claimant fails to pay those costs within 21 days of— (i) the date on which the parties agreed the sum payable by the claimant; or
(ii) the date on which the court ordered the costs to be paid.
(2) Where this rule applies, the court may stay(GL) the remainder of the proceedings until the claimant pays the whole of the costs which he is liable to pay under rule 38.6
PART 39 MISCELLANEOUS PROVISIONS RELATING TO HEARINGS
Contents of this Part
Interpretation Rule 39.1
General rule—hearing to be in public Rule 39.2
Failure to attend the trial Rule 39.3
Timetable for trial Rule 39.4
Trial bundles Rule 39.5
Representation at trial of companies or other corporations
Rule 39.6
Impounded documents Rule 39.7
Interpretation
39.1. In this Part, reference to a hearing includes a reference to the trial.
General rule—hearing to be in public
39.2. (1) The general rule is that a hearing is to be in public. (2) The requirement for a hearing to be in public does not require the court to make special
arrangements for accommodating members of the public. (3) A hearing, or any part of it, may be in private if—
(a) publicity would defeat the object of the hearing; (b) it involves matters relating to national security; (c) it involves confidential information (including information relating to personal financial
matters) and publicity would damage that confidentiality; (d) a private hearing is necessary to protect the interests of any child or patient; (e) it is a hearing of an application made without notice and it would be unjust to any
respondent for there to be a public hearing; (f) it involves uncontentious matters arising in the administration of trusts or in the
administration of a deceased person’s estate; or (g) the court considers this to be necessary, in the interests of justice.
(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
131
Failure to attend the trial
39.3. (1) The court may proceed with a trial in the absence of a party but— (a) if no party attends the trial, it may strike out(GL) the whole of the proceedings; (b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim;
and (c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).
(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.
(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside(GL).
(4) An application under paragraph (2) or paragraph (3) for an order to restore proceedings must be supported by evidence.
(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant—
(a) acted promptly when he found out that the court had exercised its power to strike out(GL) or to enter judgment or make an order against him;
(b) had a good reason for not attending the trial; and (c) has a reasonable prospect of success at the trial.
Timetable for trial
39.4. When the court sets a timetable for a trial in accordance with rule 28.6 (fixing or confirming the trial date and giving directions—fast track) or rule 29.8 (setting a trial timetable and fixing or confirming the trial date or week—multi-track) it will do so in consultation with the parties.
Trial bundles
39.5. (1) Unless the court orders otherwise, the claimant must file a trial bundle containing documents required by—
(a) a relevant practice direction; and (b) any court order.
(2) The claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.
Representation at trial of companies or other corporations
39.6. A company or other corporation may be represented at trial by an employee if— (a) the employee has been authorised by the company or corporation to appear at trial on its
behalf; and (b) the court gives permission.
Impounded documents
39.7. (1) Documents impounded by order of the court must not be released from the custody of the court except in compliance—
(a) with a court order; or (b) with a written request made by a Law Officer or the Director of Public Prosecutions.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
132
(2) A document released from the custody of the court under paragraph(1)(b) must be released into the custody of the person who requested it.
(3) Documents impounded by order of the court, while in the custody of the court, may not be inspected except by a person authorised to do so by a court order.
PART 40 JUDGMENTS AND ORDERS
Contents of this Part
Scope of this Part Rule 40.1
Standard requirements Rule 40.2
Drawing up and filing of judgments and orders Rule 40.3
Service of judgments and orders Rule 40.4
Power to require judgment or order to be served on a party as well as his solicitor
Rule 40.5
Consent judgments and orders Rule 40.6
When judgment or order takes effect Rule 40.7
Time from which interest begins to run Rule 40.8
Who may apply to set aside or vary a judgment or order
Rule 40.9
Judgment against a State in default of acknowledgment of service
Rule 40.10
Time for complying with a judgment or order Rule 40.11
Correction of errors in judgments and orders Rule 40.12
Cases where court gives judgment both on claim and counterclaim
Rule 40.13
Judgment in favour of certain part owners relating to the detention of goods
Rule 40.14
Scope of this Part
40.1. This Part sets out rules about judgments and orders which apply except where any other of these Rules makes a different provision in relation to the judgment or order in question.
Standard requirements
40.2. (1) Every judgment or order must state the name and judicial title of the person who made it, unless it is—
(a) default judgment entered under rule 12.4(1) (entry of default judgment where judgment is entered by a court officer) or a default costs certificate obtained under rule 47.11;
(b) judgment entered under rule 14.4, 14.5, 14.6, 14.7 and 14.9 (entry of judgment on admission where judgment is entered by a court officer); or
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
133
(c) a consent order under rule 40.6(2) (consent orders made by court officers). (2) Every judgment or order must—
(a) bear the date on which it is given or made; and (b) be sealed(GL) by the court.
Drawing up and filing of judgments and orders
40.3. (1) Every judgment or order will be drawn up by the court unless— (a) the court orders a party to draw it up; (b) a party, with the permission of the court, agrees to draw it up; (c) the court dispenses with the need to draw it up; or (d) it is a consent order under rule 40.6.
(2) The court may direct that— (a) a judgment or an order drawn up by a party must be checked by the court before it is
sealed(GN( � or (b) before a judgment or an order is drawn up by the court, the parties must file an agreed
statement of its terms. (3) Where a judgment or an order is to be drawn up by a party—
(a) he must file it no later than 7 days after the date on which the court ordered or permitted him to draw it up so that it can be sealed(GL) by the court; and
(b) if he fails to file it within that period, any other party may draw it up and file it.
Service of judgments and orders
40.4. (1) Where a judgment or an order has been drawn up by a party and is to be served by the court—
(a) the party who drew it up must file a copy to be retained at court and sufficient copies for service on him and on the other parties; and
(b) once it has been sealed(GL), the court must serve a copy of it on each party to the proceedings.
(2) Unless the court directs otherwise, any order made otherwise than at trial must be served on— (a) the applicant and the respondent; and (b) any other person on whom the court orders it to be served.
(Rule 6.3 specifies who must serve judgments and orders)
Power to require judgment or order to be served on a party as well as his solicitor
40.5. Where the party on whom a judgment or order is to be served is acting by a solicitor, the court may order the judgment or order to be served on the party as well as on his solicitor.
Consent judgments and orders
40.6. (1) This rule applies where all the parties agree the terms in which a judgment should be given or an order should be made.
(2) A court officer may enter and seal(GL) an agreed judgment or order if—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
134
(a) the judgment or order is listed in paragraph (3); (b) none of the parties is a litigant in person; and (c) the approval of the court is not required by these Rules, a practice direction or any
enactment before an agreed order can be made. (3) The judgments and orders referred to in paragraph (2) are—
(a) a judgment or order for— (i) the payment of an amount of money (including a judgment or order for damages or
the value of goods to be decided by the court); or (ii) the delivery up of goods with or without the option of paying the value of the goods
or the agreed value. (b) an order for—
(i) the dismissal of any proceedings, wholly or in part; (ii) the stay(GL) of proceedings on agreed terms, disposing of the proceedings, whether
those terms are recorded in a schedule to the order or elsewhere; (iii) the stay(GL) of enforcement of a judgment, either unconditionally or on condition that
the money due under the judgment is paid by instalments specified in the order; (iv) the setting aside under Part 13 of a default judgment which has not been satisfied; (v) the payment out of money which has been paid into court;
(vi) the discharge from liability of any party; (vii) the payment, assessment or waiver of costs, or such other provision for costs as may
be agreed. (4) Rule 40.3 (drawing up and filing of judgments and orders) applies to judgments and orders
entered and sealed(GL) by a court officer under paragraph (2) as it applies to other judgments and orders.
(5) Where paragraph (2) does not apply, any party may apply for a judgment or order in the terms agreed.
(6) The court may deal with an application under paragraph (5) without a hearing. (7) Where this rule applies—
(a) the order which is agreed by the parties must be drawn up in the terms agreed; (b) it must be expressed as being “By Consent”; (c) it must be signed by the legal representative acting for each of the parties to whom the
order relates or, where paragraph (5) applies, by the party if he is a litigant in person.
When judgment or order takes effect
40.7. (1) A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify.
(2) This rule applies to all judgments and orders except those to which rule 40.10 (judgment against a State) applies.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
135
Time from which interest begins to run
40.8. (1) Where interest is payable on a judgment pursuant to section 17 of the Judgments Act 1838(48) or section 74 of the County Courts Act 1984(49), the interest shall begin to run from the date that judgment is given unless—
(a) a rule in another Part or a practice direction makes different provision; or (b) the court orders otherwise.
(2) The court may order that interest shall begin to run from a date before the date that judgment is given.
Who may apply to set aside or vary a judgment or order
40.9. A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.
Judgment against a State in default of acknowledgment of service
40.10. (1) Where the claimant obtains default judgment under Part 12 on a claim against a State where the defendant has failed to file an acknowledgment of service, the judgment does not take effect until 2 months after service on the State of—
(a) a copy of the judgment; and (b) a copy of the evidence in support of the application for permission to enter default
judgment (unless the evidence has already been served on the State in accordance with an order made under Part 12).
(2) In this rule, “State” has the meaning given by section 14 of the State Immunity Act 1978(50).
Time for complying with a judgment or order
40.11. A party must comply with a judgment or order for the payment of an amount of money (including costs) within 14 days of the date of the judgment or order, unless—
(a) the judgment or order specifies a different date for compliance (including specifying payment by instalments);
(b) any of these Rules specifies a different date for compliance; or (c) the court has stayed the proceedings or judgment.
(Parts 12 and 14 specify different dates for complying with certain default judgments and judgments on admissions)
Correction of errors in judgments and orders
40.12. (1) The court may at any time correct an accidental slip or omission in a judgment or order. (2) A party may apply for a correction without notice.
Cases where court gives judgment both on claim and counterclaim
40.13. (1) This rule applies where the court gives judgment for specified amounts both for the claimant on his claim and against the claimant on a counterclaim.
(48) 1838 c. 110. Section 17 was amended by S.I. 1998/ 2940. (49) 1984 c. 28. Section 74 was amended by section 2 of the Private International Law (Miscellaneous Provisions) Act 1995 (c. 42). (50) 1978 c. 33.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
136
(2) If there is a balance in favour of one of the parties, it may order the party whose judgment is for the lesser amount to pay the balance.
(3) In a case to which this rule applies, the court may make a separate order as to costs against each party.
Judgment in favour of certain part owners relating to the detention of goods
40.14. (1) In this rule “part owner” means one of two or more persons who have an interest in the same goods.
(2) Where— (a) a part owner makes a claim relating to the detention of the goods; and (b) the claim is not based on a right to possession,
any judgment or order given or made in respect of the claim is to be for the payment of damages only, unless the claimant had the written authority of every other part owner of the goods to make the claim on his behalf as well as for himself.
(3) This rule applies notwithstanding anything in subsection (3) of section 3 of the Torts (Interference with Goods) Act 1977(51), but does not affect the remedies and jurisdiction mentioned in subsection (8) of that section.
PART 41 PROVISIONAL DAMAGES
Contents of this Part
Application and definitions Rule 41.1
Order for an award of provisional damages Rule 41.2
Application for further damages Rule 41.3
Application and definitions
41.1. (1) This Part applies to proceedings to which SCA s.32A or CCA s.51 applies. (2) In this Part—
(a) “SCA s.32A” means section 32A of the Supreme Court Act 1981(52); (b) “CCA s.51” means section 51 of the County Courts Act 1984(53); and (c) “award of provisional damages” means an award of damages for personal injuries under
which— (i) damages are assessed on the assumption referred to in SCA s.32A or CCA s.51 that
the injured person will not develop the disease or suffer the deterioration; and (ii) the injured person is entitled to apply for further damages at a future date if he
develops the disease or suffers the deterioration.
(51) 1977 c. 32. (52) 1981 c. 54. Section 32A was inserted by section 6(1) of the Administration of Justice Act 1982 (c. 53) (53) 1984 c. 28.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
137
Order for an award of provisional damages
41.2. (1) The court may make an order for an award of provisional damages if— (a) the particulars of claim include a claim for provisional damages; and (b) the court is satisfied that SCA s.32A or CCA s.51 applies.
(Rule 16.4(1)(d) sets out what must be included in the particulars of claim where the claimant is claiming provisional damages)
(2) An order for an award of provisional damages— (a) must specify the disease or type of deterioration in respect of which an application may
be made at a future date; (b) must specify the period within which such an application may be made; and (c) may be made in respect of more than one disease or type of deterioration and may, in
respect of each disease or type of deterioration, specify a different period within which a subsequent application may be made.
(3) The claimant may make more than one application to extend the period specified under paragraph (2)(b) or (2)(c).
Application for further damages
41.3. (1) The claimant may not make an application for further damages after the end of the period specified under rule 41.2(2), or such period as extended by the court.
(2) Only one application for further damages may be made in respect of each disease or type of deterioration specified in the award of provisional damages.
(3) The claimant must give at least 28 days written notice to the defendant of his intention to apply for further damages.
(4) If the claimant knows— (a) that the defendant is insured in respect of the claim; and (b) the identity of the defendant’s insurers,
he must also give at least 28 days written notice to the insurers. (5) Within 21 days after the end of the 28 day notice period referred to in paragraphs (3) and (4),
the claimant must apply for directions. (6) The rules in Part 25 about the making of an interim payment apply where an application is
made under this rule.
PART 42 CHANGE OF SOLICITOR
Contents of this Part
Solicitor acting for a party Rule 42.1
Change of solicitor—duty to give notice Rule 42.2
Order that a solicitor has ceased to act Rule 42.3
Removal of solicitor who has ceased to act on application of another party
Rule 42.4
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
138
Solicitor acting for a party
42.1. Where the address for service of a party is the business address of his solicitor, the solicitor will be considered to be acting for that party until the provisions of this Part have been complied with.
(Part 6 contains provisions about the address for service)
Change of solicitor—duty to give notice
42.2. (1) This rule applies where— (a) a party for whom a solicitor has acted wants to change his solicitor; (b) a party, after having conducted the claim in person, appoints a solicitor to act on his behalf
(except where the solicitor is appointed only to act as an advocate for a hearing); or (c) a party, after having conducted the claim by a solicitor, intends to act in person.
(2) Where this rule applies, the party or his solicitor (where one is acting) must— (a) file notice of the change; and (b) serve notice of the change on every other party and, where paragraph (1)(a) or (c) applies,
on the former solicitor. (3) The notice must state the party’s new address for service. (4) The notice filed at court must state that notice has been served as required by paragraph (2)(b). (5) Subject to paragraph (6), where a party has changed his solicitor or intends to act in person,
the former solicitor will be considered to be the party’s solicitor unless and until— (a) notice is served in accordance with paragraph (1); or (b) the court makes an order under rule 42.3 and the order is served as required by
paragraph (3) of that rule. (6) Where the certificate of an assisted person within the meaning of the Civil Legal Aid (General)
Regulations 1989(54) is revoked or discharged— (a) the solicitor who acted for the assisted person shall cease to be the solicitor acting in the
case as soon as his retainer is determined under regulation 83 of those Regulations; and (b) if the assisted person wishes to continue—
(i) where he appoints a solicitor to act on his behalf paragraph (2) will apply as if he had previously conducted the claim in person; and
(ii) where he wants to act in person he must give an address for service.
(Rule 6.5 deals with a party’s address for service)
Order that a solicitor has ceased to act
42.3. (1) A solicitor may apply for an order declaring that he has ceased to be the solicitor acting for a party.
(2) Where an application is made under this rule— (a) notice of the application must be given to the party for whom the solicitor is acting, unless
the court directs otherwise; and (b) the application must be supported by evidence.
(3) Where the court makes an order that a solicitor has ceased to act— (a) a copy of the order must be served on every party to the proceedings; and
(54) S.I. 1989/ 339 to which there are amendments not relevant to these Rules.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
139
(b) if it is served by a party or the solicitor, the party or the solicitor (as the case may be) must file a certificate of service.
Removal of solicitor who has ceased to act on application of another party
42.4. (1) Where— (a) a solicitor who has acted for a party—
(i) has died; (ii) has become bankrupt;
(iii) has ceased to practice; or (iv) cannot be found; and
(b) the party has not given notice of a change of solicitor or notice of intention to act in person as required by rule 42.2(2),
any other party may apply for an order declaring that the solicitor has ceased to be the solicitor acting for the other party in the case.
(2) Where an application is made under this rule, notice of the application must be given to the party to whose solicitor the application relates unless the court directs otherwise.
(3) Where the court makes an order made under this rule— (a) a copy of the order must be served on every other party to the proceedings; and (b) where it is served by a party, that party must file a certificate of service.
PART 43 SCOPE OF COST RULES AND DEFINITIONS
Contents of this Part
Scope of this Part Rule 43.1
Definitions and application Rule 43.2
Meaning of summary assessment Rule 43.3
Meaning of detailed assessment Rule 43.4
Scope of this Part
43.1. This Part contains definitions and interpretation of certain matters set out in the rules about costs contained in Parts 44 to 48.
(Part 44 contains general rules about costs; Part 45 deals with fixed costs; Part 46 deals with fast track trial costs; Part 47 deals with the detailed assessment of costs and related appeals and Part 48 deals with costs payable in special cases)
Definitions and application
43.2. (1) In Parts 44 to 48, unless the context otherwise requires— (a) “costs” includes fees, charges, disbursements, expenses,remuneration, reimbursement
allowed to a litigant in person under rule 48.6 and any fee or reward charged by a lay
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
140
representative for acting on behalf of a party in proceedings allocated to the small claims track;
(b) “costs judge” means a taxing master of the Supreme Court; (c) “costs officer” means—
(i) a costs judge; (ii) a district judge; and
(iii) an authorised court officer; (d) “authorised court officer” means any officer of—
(i) a county court; (ii) a district registry;
(iii) the Principal Registry of the Family Division; or (iv) the Supreme Court Costs Office,
whom the Lord Chancellor has authorised to assess costs. (e) “fund” includes any estate or property held for the benefit of any person or class of person
and any fund to which a trustee or personal representative is entitled in his capacity as such; (f) “receiving party” means a party entitled to be paid costs; (g) “paying party” means a party liable to pay costs; (h) “assisted person” means an assisted person within the statutory provisions relating to legal
aid; and (i) “fixed costs” means the amounts which are to be allowed in respect of solicitors' charges
in the circumstances set out in Part 45. (2) The costs to which Parts 44 to 48 apply include—
(a) the following costs where those costs may be assessed by the court— (i) costs of proceedings before an arbitrator or umpire;
(ii) costs of proceedings before a tribunal or other statutory body; and (iii) costs payable by a client to his solicitor; and
(b) costs which are payable by one party to another party under the terms of a contract, where the court makes an order for an assessment of those costs.
Meaning of summary assessment
43.3. “Summary assessment” means the procedure by which the court, when making an order about costs, orders payment of a sum of money instead of fixed costs or “detailed assessment”.
Meaning of detailed assessment
43.4. “Detailed assessment” means the procedure by which the amount of costs is decided by a costs officer in accordance with Part 47.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
141
PART 44 GENERAL RULES ABOUT COSTS
Contents of this Part
Scope of this Part Rule 44.1
Solicitor’s duty to notify client Rule 44.2
Court’s discretion and circumstances to be taken into account when exercising its discretion as to costs
Rule 44.3
Basis of assessment Rule 44.4
Factors to be taken into account in deciding the amount of costs
Rule 44.5
Fixed costs Rule 44.6
Procedure for assessing costs Rule 44.7
Time for complying with an order for costs Rule 44.8
Costs on the small claims track and fast track Rule 44.9
Limitation on amount court may award where a claim allocated to the fast track settles before trial
Rule 44.10
Costs following allocation and re-allocation Rule 44.11
Cases where costs orders deemed to have been made
Rule 44.12
Special situations Rule 44.13
Court’s powers in relation to misconduct Rule 44.14
Scope of this Part
44.1. This Part contains general rules about costs and entitlement to costs.
(The definitions contained in Part 43 are relevant to this Part)
Solicitor’s duty to notify client
44.2. Where— (a) the court makes a costs order against a legally represented party; and (b) the party is not present when the order is made,
the party’s solicitor must notify his client in writing of the costs order no later than 7 days after the solicitor receives notice of the order.
Court’s discretion and circumstances to be taken into account when exercising its discretion as to costs
44.3. (1) The court has discretion as to—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
142
(a) whether costs are payable by one party to another; (b) the amount of those costs; and (c) when they are to be paid.
(2) If the court decides to make an order about costs— (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the
successful party; but (b) the court may make a different order.
(3) The general rule does not apply to the following proceedings— (a) proceedings in the Court of Appeal on an application or appeal made in connection with
proceedings in the Family Division; or (b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or
made in probate proceedings or family proceedings. (4) In deciding what order (if any) to make about costs, the court must have regard to all the
circumstances, including— (a) the conduct of all the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly
successful; and (c) any payment into court or admissible offer to settle made by a party which is drawn to the
court’s attention (whether or not made in accordance with Part 36).
(Part 36 contains further provisions about how the court’s discretion is to be exercised where a payment into court or an offer to settle is made under that Part)
(5) The conduct of the parties includes— (a) conduct before, as well as during, the proceedings and in particular the extent to which
the parties followed any relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or
issue; (c) the manner in which a party has pursued or defended his case or a particular allegation
or issue; and (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his
claim. (6) The orders which the court may make under this rule include an order that a party must pay—
(a) a proportion of another party’s costs; (b) a stated amount in respect of another party’s costs; (c) costs from or until a certain date only; (d) costs incurred before proceedings have begun; (e) costs relating to particular steps taken in the proceedings; (f) costs relating only to a distinct part of the proceedings; and (g) interest on costs from or until a certain date, including a date before judgment.
(7) Where the court would otherwise consider making an order under paragraph (6)(f), it must instead, if practicable, make an order under paragraph (6)(a) or (c).
(8) Where the court has ordered a party to pay costs, it may order an amount to be paid on account before the costs are assessed.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
143
(9) Where a party entitled to costs is also liable to pay costs the court may assess the costs which that party is liable to pay and either—
(a) set off the amount assessed against the amount the party is entitled to be paid and direct him to pay any balance; or
(b) delay the issue of a certificate for the costs to which the party is entitled until he has paid the amount which he is liable to pay.
Basis of assessment
44.4. (1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs—
(a) on the standard basis; or (b) on the indemnity basis,
but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.
(Rule 48.3 sets out how the court decides the amount of costs payable under a contract) (2) Where the amount of costs is to be assessed on the standard basis, the court will—
(a) only allow costs which are proportionate to the matters in issue; and (b) resolve any doubt which it may have as to whether costs were reasonably incurred or
reasonable and proportionate in amount in favour of the paying party.
(Factors which the court may take into account are set out in rule 44.5) (3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve
any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.
(4) Where— (a) the court makes an order about costs without indicating the basis on which the costs are
to be assessed; or (b) the court makes an order for costs to be assessed on a basis other than the standard basis
or the indemnity basis, the costs will be assessed on the standard basis.
(5) This rule and Part 47 (detailed assessment of costs by a costs officer) do not apply to the extent that regulations made under the Legal Aid Act 1988(55) determine the amount payable.
(6) Where the amount of a solicitor’s remuneration in respect of non-contentious business is regulated by any general orders made under the Solicitors Act 1974(56), the amount of the costs to be allowed in respect of any such business which falls to be assessed by the court will be decided in accordance with those general orders rather than this rule and rule 44.5.
Factors to be taken into account in deciding the amount of costs
44.5. (1) The court is to have regard to all the circumstances in deciding whether costs were— (a) if it is assessing costs on the standard basis—
(i) proportionately and reasonably incurred; or (ii) were proportionate and reasonable in amount, or
(55) 1988 c. 34. (56) 1974 c. 47.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
144
(b) if it is assessing costs on the indemnity basis— (i) unreasonably incurred; or
(ii) unreasonable in amount. (2) In particular the court must give effect to any orders which have already been made. (3) The court must also have regard to—
(a) the conduct of all the parties, including in particular— (i) conduct before, as well as during, the proceedings; and
(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;
(b) the amount or value of any money or property involved; (c) the importance of the matter to all the parties; (d) the particular complexity of the matter or the difficulty or novelty of the questions raised; (e) the skill, effort, specialised knowledge and responsibility involved; (f) the time spent on the case; and (g) the place where and the circumstances in which work or any part of it was done.
(Rule 35.4(4) gives the court power to limit the amount that a party may recover with regard to the fees and expenses of an expert)
Fixed costs
44.6. A party may recover the fixed costs specified in Part 45 in accordance with that Part.
Procedure for assessing costs
44.7. Where the court orders a party to pay costs to another party (other than fixed costs) it may either—
(a) make a summary assessment of the costs; or (b) order detailed assessment of the costs by a costs officer,
unless any rule, practice direction or other enactment provides otherwise.
(The costs practice direction sets out the factors which will affect the court’s decision under this rule)
Time for complying with an order for costs
44.8. A party must comply with an order for the payment of costs within 14 days of— (a) the date of the judgment or order if it states the amount of those costs; or (b) if the amount of those costs (or part of them) is decided later in accordance with Part 47,
the date of the certificate which states the amount.
(Part 47 sets out the procedure for detailed assessment of costs)
Costs on the small claims track and fast track
44.9. (1) Part 27 (Small claims) and Part 46 (Fast track trial costs) contain special rules about— (a) liability for costs; (b) the amount of costs which the court may award; and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
145
(c) the procedure for assessing costs. (2) Those special rules do not apply until a claim is allocated to a particular track.
Limitation on amount court may allow where a claim allocated to the fast track settles before trial
44.10. (1) Where the court— (a) assesses costs in relation to a claim which—
(i) has been allocated to the fast track; and (ii) settles before the start of the trial; and
(b) is considering the amount of costs to be allowed in respect of a party’s advocate for preparing for the trial,
it may not allow, in respect of those advocate’s costs, an amount that exceeds the amount of fast track trial costs which would have been payable in relation to the claim had the trial taken place.
(2) When deciding the amount to be allowed in respect of the advocate’s costs, the court shall have regard to—
(a) when the claim was settled; and (b) when the court was notified that the claim had settled.
(3) In this rule, “advocate” and “fast track trial costs” have the meanings given to them by Part 46.
(Part 46 sets out the amount of fast track trial costs which may be awarded)
Costs following allocation and re-allocation
44.11. (1) Any costs orders made before a claim is allocated will not be affected by allocation. (2) Where—
(a) a claim is allocated to a track; and (b) the court subsequently re-allocates that claim to a different track,
then unless the court orders otherwise, any special rules about costs applying— (i) to the first track, will apply to the claim up to the date of re-allocation; and
(ii) to the second track, will apply from the date of re-allocation.
(Part 26 deals with the allocation and re-allocation of claims between tracks)
Cases where costs orders deemed to have been made
44.12. (1) Where a right to costs arises under— (a) rule 3.7 (defendant’s right to costs where claim struck out for non-payment of fees); (b) rule 36.13(1) (claimant’s right to costs where he accepts defendant’s Part 36 offer or Part
36 payment); (c) rule 36.14 (claimant’s right to costs where defendant accepts the claimant’s Part 36 offer);
or (d) rule 38.6 (defendant’s right to costs where claimant discontinues),
a costs order will be deemed to have been made on the standard basis.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
146
(2) Interest payable pursuant to section 17 of the Judgments Act 1838(57) or section 74 of the County Courts Act 1984(58) on the costs deemed to have been ordered under paragraph (1) shall begin to run from the date on which the event which gave rise to the entitlement to costs occurred.
Special situations
44.13. (1) Where the court makes an order which does not mention costs no party is entitled to costs in relation to that order.
(2) The court hearing an appeal may, unless it dismisses the appeal, make orders about the costs of the proceedings giving rise to the appeal as well as the costs of the appeal.
(3) Where proceedings are transferred from one court to another, the court to which they are transferred may deal with all the costs, including the costs before the transfer.
(4) Paragraph (3) is subject to any order of the court which ordered the transfer.
Court’s powers in relation to misconduct
44.14. (1) The court may make an order under this rule where— (a) a party or his legal representative fails to conduct detailed assessment proceedings in
accordance with Part 47 or any direction of the court; or (b) it appears to the court that the conduct of a party or his legal representative, before or
during the proceedings which gave rise to the assessment proceedings, was unreasonable or improper.
(2) Where paragraph (1) applies, the court may— (a) disallow all or part of the costs which are being assessed; or (b) order the party at fault or his legal representative to pay costs which he has caused any
other party to incur. (3) Where—
(a) the court makes an order under paragraph (2) against a legally represented party; and (b) the party is not present when the order is made,
the party’s solicitor must notify his client in writing of the order no later than 7 days after the solicitor receives notice of the order.
PART 45 FIXED COSTS
Contents of this Part
Scope of this Part Rule 45.1
Amount of fixed commencement costs Rule 45.2
When defendant liable for fixed commencement costs
Rule 45.3
Costs on entry of judgment Rule 45.4
(57) 1838 c. 110. Section 17 was amended by S.I. 1998/2940. (58) 1984 c. 28. Section 74 was amended by section (2) of the Private International Law (Miscellaneous Provisions) Act 1995
(c. 42).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
147
Miscellaneous fixed costs Rule 45.5
Scope of this Part
45.1. (1) This Part sets out the amounts which, unless the court orders otherwise, are to be allowed in respect of solicitors' charges in the cases to which this Part applies.
(The definitions contained in Part 43 are relevant to this Part) (2) This Part applies where—
(a) the only claim is a claim for a specified sum of money and— (i) judgment in default is obtained under rule 12.4(1);
(ii) judgment on admission is obtained under rule 14.4(3); (iii) judgment on admission on part of the claim is obtained under rule 14.5(6); (iv) summary judgment is given under Part 24; (v) the court has made an order to strike out (GL) a defence under rule 3.4(2)(a) as
disclosing no reasonable grounds for defending the claim; or (vi) rule 45.3 applies; or
(b) the only claim is a claim where the court gave a fixed date for the hearing when it issued the claim and judgment is given for the delivery of goods,
and in either case the value of the claim exceeds £25.
(The practice direction supplementing rule 7.9 sets out the types of case where a court may give a fixed date for a hearing when it issues a claim)
(3) The rules in this Part do not apply to the extent that regulations under the Legal Aid Act 1988(59) determine the amount of costs payable to legal representatives.
(4) Any appropriate court fee will be allowed in addition to the costs set out in this Part.
Amount of fixed commencement costs
45.2. (1) The claim form may include a claim for fixed commencement costs. (2) The amount of fixed commencement costs which the claim form may include shall be
calculated by reference to the following Table (Table 1). (3) Additional costs may also be claimed in the circumstances specified in Table 3. (4) The amount claimed, or the value of the goods claimed if specified, in the claim form is to
be used for determining the band in the Table that applies to the claim.
(59) 1988 c. 34.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
148
TABLE 1
Fixed costs on commencement of a claim
Relevant Band Where the claim form is served by the court or by any method other than personal service by the claimant
Where the claim form is served personally by the claimant; and there is only one defendant
Where there is more than one defendant, for each additional defendant personally served at separate addresses by the claimant
Where— the value of the claim exceeds £25 but does not exceed £500
£50 £60 £15
Where— the value of the claim exceeds £500 but does not exceed £1000
£70 £80 £15
Where— the value of the claim exceeds £1000 but does not exceed £5000; or the only claim is for delivery of goods and no value is specified or stated on the claim form
£80 £90 £15
Where— the value of the claim exceeds £5000
£100 £110 £15
When defendant only liable for fixed commencement costs
45.3. (1) Where— (a) the only claim is for a specified sum of money; and (b) the defendant pays the money claimed within 14 days after service of particulars of claim
on him, together with the fixed commencement costs stated in the claim form, the defendant is not liable for any further costs unless the court orders otherwise.
(2) Where—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
149
(a) the claimant gives notice of acceptance of a payment into court in satisfaction of the whole claim;
(b) the only claim is for a specified sum of money; and (c) the defendant made the payment into court within 14 days after service of the particulars
of claim on him, together with the fixed costs stated in the claim form, the defendant is not liable for any further costs unless the court orders otherwise.
Costs on entry of judgment
45.4. Where— (a) the claimant has claimed fixed commencement costs under rule 45.2; and (b) judgment is entered in the circumstances specified in the table in this rule (Table 2),
the amount to be included in the judgment in respect of the claimant’s solicitor’s charges is the aggregate of—
(i) the fixed commencement costs; and (ii) the relevant amount shown in Table 2.
TABLE 2
Fixed Costs on Entry of Judgment
Where the amount of the judgment exceeds £25 but does not exceed £5000
Where the amount of the judgment exceeds £5000
Where judgment in default of an acknowledgment of service is entered under rule 12.4(1) (entry of judgment by request on claim for money only)
£22 £30
Where judgment in default of a defence is entered under rule 12.4(1) (entry of judgment by request on claim for money only)
£25 £35
Where judgment is entered under rule 14.4 (judgment on admission), or rule 14.5 (judgment on admission of part of claim) and claimant accepts the defendant’s proposal as to the manner of payment.
£40 £55
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
150
Where the amount of the judgment exceeds £25 but does not exceed £5000
Where the amount of the judgment exceeds £5000
Where judgment is entered under rule 14.4 (judgment on admission), or rule 14.5 (judgment on admission on part of claim) and court decides the date or times of payment
£55 £70
Where summary judgment is given under Part 24 or the court strikes out a defence under rule 3.4(2) (a), in either case, on application by a party
£175 £210
Where judgment is given on a claim for delivery of goods under a regulated agreement within the meaning of the Consumer Credit Act 1974(60) and no other entry in this table applies
£60 £85
Miscellaneous fixed costs
45.5. The table in this rule (Table 3) shows the amount to be allowed in respect of solicitor’s charges in the circumstances mentioned.
TABLE 3
Miscellaneous Fixed Costs
For service by a party of any document required to be served personally including preparing and copying a certificate of service for each individual served£15 Where service by an alternative method is permitted by an order under rule 6.8 for each individual served
£25
Where a document is served out of the jurisdiction— (a) in Scotland, Northern Ireland, the Isle of
Man or the Channel Islands;
£65
(b) (b) in any other place £75
(60) 1974 c. 39.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
151
PART 46 FAST TRACK TRIAL COSTS
Contents of this Part
Scope of this Part 46.1
Amount of fast track trial costs 46.2
Power to award more or less than amount of fast track trial costs
46.3
Fast track trial costs where there is more than one claimant or defendant
46 4
Scope of this Part
46.1. (1) This Part deals with the amount of costs which the court may award as the costs of an advocate for preparing for and appearing at the trial of a claim in the fast track (referred to in this rule as “fast track trial costs”).
(2) For the purposes of this Part— (a) “advocate” means a person exercising a right of audience as a representative of, or on
behalf of, a party; (b) “fast track trial costs” means the costs of a party’s advocate for preparing for and appearing
at the trial, but does not include— (i) any other disbursements; or
(ii) any value added tax payable on the fees of a party’s advocate; and (c) “trial” includes a hearing where the court decides an amount of money or the value of
goods following a judgment under Part 12 (default judgment) or Part 14 (admissions) but does not include—
(i) the hearing of an application for summary judgment under Part 24; or (ii) the court’s approval of a settlement or other compromise under rule 21.10.
(Part 21 deals with claims made by or on behalf of, or against, children and patients)
Amount of fast track trial costs
46.2. (1) The following table shows the amount of fast track trial costs which the court may award (whether by summary or detailed assessment).
Value of the claim Amount of fast track trial costs which the court may award
Up to £3,000 £350
More than £3,000 but not more than £10,000 £500
More than £10,000 £750
(2) The court may not award more or less than the amount shown in the table except where— (a) it decides not to award any fast track trial costs; or (b) rule 46.3 applies,
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
152
but the court may apportion the amount awarded between the parties to reflect their respective degrees of success on the issues at trial.
(3) Where the only claim is for the payment of money— (a) for the purpose of quantifying fast track trial costs awarded to a claimant, the value of the
claim is the total amount of the judgment excluding— (i) interest and costs; and
(ii) any reduction made for contributory negligence; (b) for the purpose of the quantifying fast track trial costs awarded to a defendant, the value
of the claim is— (i) the amount specified in the claim form (excluding interest and costs);
(ii) if no amount is specified, the maximum amount which the claimant reasonably expected to recover according to the statement of value included in the claim form under rule 16.3; or
(iii) more than £10,000, if the claim form states that the claimant cannot reasonably say how much he expects to recover.
(4) Where the claim is only for a remedy other than the payment of money the value of the claim is deemed to be more than £3,000 but not more than £10,000, unless the court orders otherwise.
(5) Where the claim includes both a claim for the payment of money and for a remedy other than the payment of money, the value of the claim is deemed to be the higher of—
(a) the value of the money claim decided in accordance with paragraph (3); or (b) the deemed value of the other remedy decided in accordance with paragraph (4),
unless the court orders otherwise. (6) Where—
(a) a defendant has made a counterclaim against the claimant; (b) the counterclaim has a higher value than the claim; and (c) the claimant succeeds at trial both on his claim and the counterclaim,
for the purpose of quantifying fast track trial costs awarded to the claimant, the value of the claim is the value of the defendant’s counterclaim calculated in accordance with this rule.
(Rule 20.4 sets out how a defendant may make a counterclaim)
Power to award more or less than the amount of fast track trial costs
46.3. (1) This rule sets out when a court may award— (a) an additional amount to the amount of fast track trial costs shown in the table in rule
46.2(1); and (b) less than those amounts.
(2) If— (a) in addition to the advocate, a party’s legal representative attends the trial; (b) the court considers that it was necessary for a legal representative to attend to assist the
advocate; and (c) the court awards fast track trial costs to that party,
the court may award an additional £250 in respect of the legal representative’s attendance at the trial.
(Legal representative is defined in rule 2.3)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
153
(3) If the court considers that it is necessary to direct a separate trial of an issue then the court may award an additional amount in respect of the separate trial but that amount is limited in accordance with paragraph (4) of this rule.
(4) The additional amount the court may award under paragraph 3 must not exceed two-thirds of the amount payable for that claim, subject to a minimum award of £350.
(5) Where the party to whom fast track trial costs are to be awarded is a litigant in person, the court will award—
(a) if the litigant in person can prove financial loss, two thirds of the amount that would otherwise be awarded; or
(b) if the litigant in person fails to prove financial loss, an amount in respect of the time spent reasonably doing the work at the rate specified in the costs practice direction.
(6) Where a defendant has made a counterclaim against the claimant and— (a) the claimant has succeeded on his claim; and (b) the defendant has succeeded on his counterclaim,
the court will quantify the amount of the award of fast track trial costs to which— (i) but for the counterclaim, the claimant would be entitled for succeeding on his claim; and
(ii) but for the claim, the defendant would be entitled for succeeding on his counterclaim, and make one award of the difference, if any, to the party entitled to the higher award of costs.
(7) Where the court considers that the party to whom fast track trial costs are to be awarded has behaved unreasonably or improperly during the trial, it may award that party an amount less than would otherwise be payable for that claim, as it considers appropriate.
(8) Where the court considers that the party who is to pay the fast track trial costs has behaved improperly during the trial the court may award such additional amount to the other party as it considers appropriate.
Fast track trial costs where there is more than one claimant or defendant
46.4. (1) Where the same advocate is acting for more than one party— (a) the court may make only one award in respect of fast track trial costs payable to that
advocate; and (b) the parties for whom the advocate is acting are jointly entitled to any fast track trial costs
awarded by the court. (2) Where—
(a) the same advocate is acting for more than one claimant; and (b) each claimant has a separate claim against the defendant,
the value of the claim, for the purpose of quantifying the award in respect of fast track trial costs is to be ascertained in accordance with paragraph (3).
(3) The value of the claim in the circumstances mentioned in paragraph (2) is— (a) where the only claim of each claimant is for the payment of money—
(i) if the award of fast track trial costs is in favour of the claimants, the total amount of the judgment made in favour of all the claimants jointly represented; or
(ii) if the award is in favour of the defendant, the total amount claimed by the claimants, and in either case, quantified in accordance with rule 46.2(3);
(b) where the only claim of each claimant is for a remedy other than the payment of money, deemed to be more than £3,000 but not more than £10,000; and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
154
(c) where claims of the claimants include both a claim for the payment of money and for a remedy other than the payment of money, deemed to be—
(i) more than £3,000 but not more than £10,000; or (ii) if greater, the value of the money claims calculated in accordance with sub
paragraph (a) above. (4) Where—
(a) there is more than one defendant; and (b) any or all of the defendants are separately represented,
the court may award fast track trial costs to each party who is separately represented. (5) Where—
(a) there is more than one claimant; and (b) a single defendant,
the court may make only one award to the defendant of fast track trial costs, for which the claimants are jointly and severally liable. (GL)
(6) For the purpose of quantifying the fast track trial costs awarded to the single defendant under paragraph (5), the value of the claim is to be calculated in accordance with paragraph (3) of this rule.
PART 47 PROCEDURE FOR DETAILED ASSESSMENT
OF COSTS AND DEFAULT PROVISIONS
Contents of this Part
I. GENERAL RULES ABOUT DETAILED ASSESSMENT
Time when detailed assessment may be carried out
Rule 47.1
No stay of detailed assessment where there is an appeal
Rule 47.2
Powers of an authorised court officer Rule 47.3
Venue for detailed assessment proceedings Rule 47.4
II. COSTS PAYABLE BY ONE PARTY TO ANOTHER—COMMENCEMENT OF DETAILED ASSESSMENT PROCEEDINGS
Application of this section Rule 47.5
Commencement of detailed assessment proceedings
Rule 47.6
Period for commencing detailed assessment proceedings
Rule 47.7
Sanction for delay in commencing detailed assessment proceedings
Rule 47.8
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
155
Points of dispute and consequence of not serving
Rule 47.9
Procedure where costs are agreed Rule 47.10
III COSTS PAYABLE BY ONE PARTY TO ANOTHER—DEFAULT PROVISIONS
Default costs certificate Rule 47.11
Setting aside default costs certificate Rule 47.12
IV COSTS PAYABLE BY ONE PARTY TO ANOTHER—PROCEDURE WHERE POINTS OF DISPUTE ARE SERVED
Optional reply Rule 47.13
Detailed assessment hearing Rule 47.14
V INTERIM COSTS CERTIFICATE AND FINAL COSTS CERTIFICATE
Power to issue an interim certificate Rule 47.15
Final costs certificate Rule 47.16
VI DETAILED ASSESSMENT PROCEDURE FOR COSTS OF AN ASSISTED PERSON WHERE COSTS ARE PAYABLE OUT OF THE LEGAL AID FUND
Detailed assessment procedure for costs of an assisted person where costs are payable out of the legal aid fund
Rule 47.17
VII COSTS OF DETAILED ASSESSMENT PROCEEDINGS
Liability for costs of detailed assessment proceedings
Rule 47.18
Offers to settle without prejudice save as to costs of the detailed assessment proceedings
Rule 47.19
VIII APPEALS IN DETAILED ASSESSMENT PROCEEDINGS
Right to appeal Rule 47.20
Preliminary requirements for bringing an appeal
Rule 47.21
Court to hear appeal Rule 47.22
Duty to seek reasons Rule 47.23
Obtaining the court’s permission to appeal Rule 47.24
Appeal procedure Rule 47.25
Powers of the court on appeal Rule 47.26
(The definitions contained in Part 43 are relevant to this Part)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
156
SECTION I—GENERAL RULES ABOUT DETAILED ASSESSMENT
Time when detailed assessment may be carried out
47.1. The general rule is that the costs of any proceedings or any part of the proceedings are not to be assessed by the detailed procedure until the conclusion of the proceedings but the court may order them to be assessed immediately.
(The costs practice direction gives further guidance about when proceedings are concluded for the purpose of this rule)
No stay of detailed assessment where there is an appeal
47.2. Detailed assessment is not stayed pending an appeal unless the court so orders.
Powers of an authorised court officer
47.3. (1) An authorised court officer has all the powers of the court when making a detailed assessment, except—
(a) power to make a wasted costs order as defined in rule 48.7; (b) power to make an order under—
(i) rule 44.14 (powers in relation to misconduct); (ii) rule 47.8 (sanction for delay in commencing detailed assessment proceedings);
(iii) paragraph (2) (objection to detailed assessment by authorised court officer); and (c) power to make a detailed assessment of costs payable to a solicitor by his client, unless
the costs are being assessed under rule 48.5 (costs where money is payable to a child or patient).
(2) Where a party objects to the detailed assessment of costs being made by an authorised court officer, the court may order it to be made by a costs judge or a district judge.
(The costs practice direction sets out the relevant procedure)
Venue for detailed assessment proceedings
47.4. (1) All applications and requests in detailed assessment proceedings must be made to or filed at the appropriate office.
(The costs practice direction sets out the meaning of “appropriate office” in any particular case) (2) The court may direct that the appropriate office is to be the Supreme Court Costs Office. (3) A county court may direct that another county court is to be the appropriate office. (4) A direction under paragraph (3) may be made without proceedings being transferred to that
court.
(Rule 30.2 makes provision for any county court to transfer the proceedings to another county court for detailed assessment of costs) SECTION II—COSTS PAYABLE BY ONE PARTY TO ANOTHER—COMMENCE MENT OF DETAILED ASSESSMENT PROCEEDINGS
Application of this Section
47.5. This section of Part 47 applies where a costs officer is to make a detailed assessment of costs which are payable by one party to another.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
157
Commencement of detailed assessment proceedings
47.6. (1) Detailed assessment proceedings are commenced by the receiving party serving on the paying party—
(a) notice of commencement in the relevant practice form; and (b) a copy of the bill of costs.
(Rule 47.7 sets out the period for commencing detailed assessment proceedings) (2) The receiving party must also serve a copy of the notice of commencement and the bill on
any other relevant persons specified in the costs practice direction. (3) A person on whom a copy of the notice of commencement is served under paragraph (2) is a
party to the detailed assessment proceedings (in addition to the paying party and the receiving party).
(The costs practice direction deals with— other documents which the party must file when he requests detailed assessment; the court’s powers where it considers that a hearing may be necessary; the form of a bill; and the length of notice which will be given if a hearing date is fixed)
Period for commencing detailed assessment proceedings
47.7. The following table shows the period for commencing detailed assessment proceedings.
Source of right to detailed assessment Time by which detailed assessment proceedings must be commenced
Judgment, direction, order, award or other determination
3 months after the date of the judgment etc. Where detailed assessment is stayed pending an appeal, 3 months after the date of the order lifting the stay.
Discontinuance under Part 38 3 months after the date of service of notice of discontinuance under rule 38.3; or 3 months after the date of the dismissal of application to set the notice of discontinuance aside under rule 38.4
Acceptance of an offer to settle or a payment into court under Part 36
3 months after the date when the right to costs arose.
Sanction for delay in commencing detailed assessment proceedings
47.8. (1) Where the receiving party fails to commence detailed assessment proceedings within the period specified—
(a) in rule 47.7; or (b) by any direction of the court,
the paying party may apply for an order requiring the receiving party to commence detailed assessment proceedings within such time as the court may specify.
(2) On an application under paragraph (1), the court may direct that, unless the receiving party commences detailed assessment proceedings within the time specified by the court, all or part of the costs to which the receiving party would otherwise be entitled will be disallowed.
(3) If—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
158
(a) the paying party has not made an application in accordance with paragraph (1); and (b) the receiving party commences the proceedings later than the period specified in rule 47.7,
the court may disallow all or part of the interest otherwise payable to the receiving party under— (i) section 17 of the Judgments Act 1838(61); or
(ii) section 74 of the County Courts Act 1984(62), but must not impose any other sanction except in accordance with rule 44.14 (powers in relation to misconduct).
(4) Where the costs to be assessed in a detailed assessment are payable out of the Legal Aid Fund, this rule applies as if the receiving party were the solicitor to whom the costs are payable and the paying party were the Legal Aid Board.
Points of dispute and consequence of not serving
47.9. (1) The paying party and any other party to the detailed assessment proceedings may dispute any item in the bill of costs by serving points of dispute on—
(a) the receiving party; and (b) every other party to the detailed assessment proceedings.
(2) The period for serving points of dispute is 21 days after the date of service of the notice of commencement.
(3) If a party serves points of dispute after the period set out in paragraph (2), he may not be heard further in the detailed assessment proceedings unless the court gives permission.
(The costs practice direction sets out requirements about the form of points of dispute) (4) The receiving party may file a request for a default costs certificate if—
(a) the period set out in rule 47.9(2) for serving points of dispute has expired; and (b) he has not been served with any points of dispute.
(5) If any party (including the paying party) serves points of dispute before the issue of a default costs certificate the court may not issue the default costs certificate.
(Section IV of this Part sets out the procedure to be followed after points of dispute have been filed)
Procedure where costs are agreed
47.10. (1) If the paying party and the receiving party agree the amount of costs, either party may apply for a costs certificate (either interim or final) in the amount agreed.
(Rule 47.15 and Rule 47.16 contain further provisions about interim and final costs certificates respectively)
(2) An application for a certificate under paragraph (1) must be made— (a) where the right to detailed assessment arises from a judgment or court order—
(i) to the court where the judgment or order was given or made, if the proceedings have not been transferred since then; or
(ii) to the court to which the proceedings have been transferred; and (b) in any other case, to the court which would be the venue for detailed assessment
proceedings under rule 47.4.
(61) 1838 c. 110. Section 17 was amended by S.I. 1998/2940. (62) 1984 c. 28. Section 74 was amended by section 2 of the Private International Law (Miscellaneous Provisions) Act 1995 (c. 42).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
159
SECTION III—COSTS PAYABLE BY ONE PARTY TO ANOTHER—DEFAULT PROVISIONS
Default costs certificate
47.11. (1) Where the receiving party is permitted by rule 47.9 to obtain a default costs certificate, he does so by filing a request in the relevant practice form.
(The costs practice direction deals with the procedure by which the receiving party may obtain a default costs certificate)
(2) A default costs certificate will include an order to pay the costs to which it relates.
Setting aside default costs certificate
47.12. (1) The court must set aside a default costs certificate if the receiving party was not entitled to it.
(2) In any other case, the court may set aside or vary a default costs certificate if it appears to the court that there is some good reason why the detailed assessment proceedings should continue.
(3) Where— (a) the receiving party has purported to serve the notice of commencement on the paying party; (b) a default costs certificate has been issued; and (c) the receiving party subsequently discovers that the notice of commencement did not reach
the paying party at least 21 days before the default costs certificate was issued, the receiving party must—
(i) file a request for the default costs certificate to be set aside; or (ii) apply to the court for directions. (4) Where paragraph (3) applies, the receiving party may take no further step in
(a) the detailed assessment proceedings; or (b) the enforcement of the default costs certificate,
until the certificate has been set aside or the court has given directions.
(The costs practice direction contains further details about the procedure for setting aside a default costs certificate and the matters which the court must take into account) SECTION IV—COSTS PAYABLE BY ONE PARTY TO ANOTHER—PROCEDURE WHERE POINTS OF 7DISPUTE ARE SERVED
Optional reply
47.13. (1) Where any party to the detailed assessment proceedings serves points of dispute, the receiving party may serve a reply on the other parties to the assessment proceedings.
(2) He may do so within 21 days after service on him of the points of dispute to which his reply relates.
Detailed assessment hearing
47.14. (1) Where points of dispute are served in accordance with this Part, the receiving party must file a request for a detailed assessment hearing.
(2) He must file the request within 3 months of the expiry of the period for commencing detailed assessment proceedings as specified—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
160
(a) in rule 47.7; or (b) by any direction of the court.
(3) Where the receiving party fails to file a request in accordance with paragraph (2), the paying party may apply for an order requiring the receiving party to file the request within such time as the court may specify.
(4) On an application under paragraph (3), the court may direct that, unless the receiving party requests a detailed assessment hearing within the time specified by the court, all or part of the costs to which the receiving party would otherwise be entitled will be disallowed.
(5) If— (a) the paying party has not made an application in accordance with paragraph (3); and (b) the receiving party commences the proceedings later than the period specified in
paragraph (2), the court may disallow all or part of the interest otherwise payable to the receiving party under—
(i) section 17 of the Judgments Act 1838(63); or (ii) section 74 of the County Courts Act 1984(64),
but must not impose any other sanction except in accordance with rule 44.14 (powers in relation to misconduct).
(6) No person other than— (a) the receiving party; (b) the paying party; and (c) any party who has served points of dispute under rule 47.9,
may be heard at the detailed assessment hearing unless the court gives permission. (7) Only items specified in the points of dispute may be raised at the hearing, unless the court
gives permission.
(The costs practice direction specifies other documents which must be filed with the request for hearing and the length of notice which the court will give when it fixes a hearing date) SECTION V—INTERIM COSTS CERTIFICATE AND FINAL COSTS CERTIFICATE
Power to issue an interim certificate
47.15. (1) The court may at any time after the receiving party has filed a request for a detailed assessment hearing—
(a) issue an interim costs certificate for such sum as it considers appropriate; (b) amend or cancel an interim certificate.
(2) An interim certificate will include an order to pay the costs to which it relates, unless the court orders otherwise.
(3) The court may order the costs certified in an interim certificate to be paid into court.
Final costs certificate
47.16. (1) In this rule a completed bill means a bill which the receiving party has calculated to show the amount due following the detailed assessment of the costs.
(63) 1838 c. 110. Section 17 was amended by S.I. 1998/2940. (64) 1984 c. 28. Section 74 was amended by section 2 of the Private International Law (Miscellaneous Provisions) Act 1995 (c. 42).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
161
(2) The period for filing the completed bill is 14 days after the end of the detailed assessment hearing.
(3) When a completed bill is filed the court will issue a final costs certificate and serve it on the parties to the detailed assessment proceedings.
(4) Paragraph (3) is subject to any order made by the court that a certificate is not to be issued until other costs have been paid.
(5) A final costs certificate will include an order to pay the costs to which it relates, unless the court orders otherwise.
(The costs practice direction deals with the form of a final costs certificate) SECTION VI—DETAILED ASSESSMENT PROCEDURE FOR COSTS OF AN ASSISTED PERSON WHERE COSTS ARE PAYABLE OUT OF THE LEGAL AID FUND
Detailed assessment procedure for costs of an assisted person where costs are payable out of the legal aid fund
47.17. (1) Where the court is to assess costs of an assisted person which are payable out of the legal aid fund, the assisted person’s solicitor may commence detailed assessment proceedings by filing a request in the relevant practice form.
(2) A request under paragraph (1) must be filed within 3 months after the date when the right to detailed assessment arose.
(3) The solicitor must also serve a copy of the request for detailed assessment on the assisted person, if notice of the assisted person’s interest has been given to the court in accordance with legal aid regulations.
(4) Where the solicitor has certified that the assisted person wishes to attend an assessment hearing, the court will, on receipt of the request for assessment, fix a date for the assessment hearing.
(5) Where paragraph (3) does not apply, the court will, on receipt of the request for assessment provisionally assess the costs without the attendance of the solicitor, unless it considers that a hearing is necessary.
(6) After the court has provisionally assessed the bill, it will return the bill to the solicitor. (7) The court will fix a date for an assessment hearing if the solicitor informs the court, within 14
days after he receives the provisionally assessed bill, that he wants the court to hold such a hearing. SECTION VII—COSTS OF DETAILED ASSESSMENT PROCEEDINGS
Liability for costs of detailed assessment proceedings
47.18. (1) The receiving party is entitled to his costs of the detailed assessment proceedings except where—
(a) the provisions of any Act, any of these Rules or any relevant practice direction provide otherwise; or
(b) the court makes some other order in relation to all or part of the costs of the detailed assessment proceedings.
(2) In deciding whether to make some other order, the court must have regard to all the circumstances, including—
(a) the conduct of all the parties; (b) the amount, if any, by which the bill of costs has been reduced; and (c) whether it was reasonable for a party to claim the costs of a particular item or to dispute
that item.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
162
Offers to settle without prejudice save as to costs of the detailed assessment proceedings
47.19. (1) Where— (a) a party (whether the paying party or the receiving party) makes a written offer to settle the
costs of the proceedings which gave rise to the assessment proceedings; and (b) the offer is expressed to be without prejudice(GL) save as to the costs of the detailed
assessment proceedings, the court will take the offer into account in deciding who should pay the costs of those proceedings.
(2) The fact of the offer must not be communicated to the costs officer until the question of costs of the detailed assessment proceedings falls to be decided.
(The costs practice direction provides that rule 47.19 does not apply where the receiving party is an assisted person) SECTION VIII—APPEAL AGAINST DECISIONS IN DETAILED ASSESSMENT PROCEEDINGS
Right to appeal
47.20. (1) Any party to detailed assessment proceedings may appeal against any decision of the court in those proceedings, subject to the requirements of rule 47.21.
(2) For the purposes of this Section, an assisted person is not a party to the detailed assessment proceedings.
Preliminary requirements for bringing an appeal
47.21. (1) A party may not appeal against a decision in detailed assessment proceedings until he has—
(a) sought written reasons for the decision in accordance with rule 47.23; and (b) obtained the court’s permission where necessary in accordance with rule 47.24,
unless the court orders otherwise. (2) Where a party has complied with the requirements under paragraph (1) he may file a notice
of appeal in accordance with rule 47.25.
Court to hear appeal
47.22. (1) Where an appeal is made against a decision of an authorised court officer the appeal is—
(a) if the detailed assessment proceedings were in the High Court, to a costs judge or a district judge of that court; or
(b) if they were in a county court, to a district judge. (2) Where an appeal is made to a costs judge or a district judge against a decision of an authorised
court officer, a further appeal lies— (a) if the detailed assessment proceedings were in the High Court, to a judge of that court; or (b) if they were in a county court, to a circuit judge.
(3) Where an appeal against a decision of a costs judge or a district judge hearing the detailed assessment is made the appeal lies—
(a) if the detailed assessment proceedings were in the High Court, to a judge of that court; or (b) if they were in a county court, to a circuit judge.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
163
Duty to seek reasons
47.23. (1) A party may seek reasons for a decision in detailed assessment proceedings by filing a request with the court that gave the decision.
(2) Where the party seeking reasons is the receiving party, he must file his request for reasons when he files the completed bill of costs.
(Rule 47.16 deals with completed bills of costs) (3) Where the party seeking reasons is the paying party, he must file his request for reasons within
7 days after the end of the detailed assessment hearing.
Obtaining the court’s permission to appeal
47.24. (1) Permission is not required to appeal against— (a) a decision of an authorised court officer; or (b) a decision of a costs judge or a district judge to impose a sanction on a legal representative
under— (i) rule 44.14 (powers in relation to misconduct); or
(ii) rule 48.7 (wasted costs order). (2) Subject to paragraph (1)(b), permission is required to appeal against a decision of a costs
judge or a district judge. (3) Permission to appeal may be given by—
(a) the costs judge or district judge who made the decision in question; or (b) a High Court judge or a circuit judge, as the case may be.
(4) A party may seek permission to appeal— (a) within 14 days after receiving written reasons under rule 47.23; or (b) if the court directs that reasons do not need to be obtained, within 7 days after the decision
in question.
Appeal procedure
47.25. (1) A party who has a right to appeal may do so by filing a notice of appeal. (2) Where the appeal is against a decision of an authorised court officer, he must file the notice—
(a) within 14 days after service of the court officer’s reasons on him; or (b) if the court has directed that reasons need not be obtained, within 7 days after the date of
the decision appealed against. (3) Where the appeal is against a decision of a costs judge or a district judge, he must file the
notice within 14 days after the date of the court’s decision to give permission to appeal. (4) On receipt of a notice of appeal, the court will—
(a) serve a copy of the notice on the other parties to the detailed assessment proceedings; and (b) give notice of the appeal hearing to those parties.
Powers of the court on appeal
47.26. (1) On an appeal from an authorised court officer the court will— (a) rehear the proceedings which gave rise to the decision appealed against; and (b) make any order and give such directions as it considers appropriate.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
164
(2) On an appeal from a costs judge or district judge, if the court is satisfied that the appeal should be allowed, it may make any order and give such directions as it considers appropriate.
(3) If on an appeal the court exercises the power to appoint assessors conferred— (a) by section 70 of the Supreme Court Act 1981(65); or (b) by section 63 of the County Courts Act 1984(66),
it must appoint at least two assessors.
(Rule 35.15 contains further provisions about the appointment of assessors) (4) One assessor must be a district judge or costs judge and one must be a practising barrister
or solicitor.
PART 48 COSTS—SPECIAL CASES
Contents of this Part
I COSTS PAYABLE BY OR TO PARTICULAR PERSONS
Pre-commencement disclosure and orders for disclosure against a person who is not a party
48.1
Costs orders in favour of or against non-parties 48.2
Amount of costs where costs are payable pursuant to a contract
48.3
Limitations on court’s power to award costs in favour of trustee or personal representative
48.4
Costs where money is payable by or to a child or patient
48.5
Litigants in person 48.6
II COSTS RELATING TO SOLICITORS AND OTHER LEGAL REPRESENTATIVES
Personal liability of legal representative for costs—wasted costs orders
48.7
Basis of detailed assessment of solicitor and client costs
48.8
Conditional fees 48.9
Assessment procedure 48.10
(The definitions contained in Part 43 are relevant to this Part) SECTION 1—COSTS PAYABLE BY OR TO PARTICULAR PERSONS
(65) 1981 c. 54. (66) 1984 c. 28. Section 63 was amended by S.I. 1998/2940.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
165
Pre-commencement disclosure and orders for disclosure against a person who is not a party
48.1. (1) This paragraph applies where a person applies— (a) for an order under—
(i) section 33 of the Supreme Court Act 1981(67); or (ii) section 52 of the County Courts Act 1984(68),
(which give the court powers exercisable before commencement of proceedings); or (b) for an order under—
(i) section 34 of the Supreme Court Act 1981(69); or (ii) section 53 of the County Courts Act 1984(70),
(which give the court power to make an order against a non-party for disclosure of documents, inspection of property etc.).
(2) The general rule is that the court will award the person against whom the order is sought his costs—
(a) of the application; and (b) of complying with any order made on the application.
(3) The court may however make a different order, having regard to all the circumstances, including—
(a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and
(b) whether the parties to the application have complied with any relevant pre-action protocol.
Costs orders in favour of or against non-parties
48.2. (1) Where the court is considering whether to exercise its power under section 51 of the Supreme Court Act 1981(71) (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings—
(a) that person must be added as a party to the proceedings for the purposes of costs only; and (b) he must be given a reasonable opportunity to attend a hearing at which the court will
consider the matter further. (2) This rule does not apply—
(a) where the court is considering whether to— (i) make an order against the Legal Aid Board;
(ii) make a wasted costs order (as defined in 48.7); and (b) in proceedings to which rule 48.1 applies (pre-commencement disclosure and orders for
disclosure against a person who is not a party).
(67) 1981 c. 54. Section 33 was amended by S.I. 1998/2940. (68) 1984 c. 28. Section 52 was amended by the Courts and Legal Services Act 1990 (c. 41), Schedule 18, paragraph 43 and by
S.I. 1998/2940. (69) 1981 c. 54. Section 34 was amended by S.I. 1998/2940. (70) 1984 c. 28. Section 53 was amended by the Courts and Legal Services Act 1990 (c. 41), Schedule 18, paragraph 44 and by
S.I. 1998/2940. (71) 1981 c. 54. Section 51 was substituted by section 4(1) of the Courts and Legal Services Act 1990 (c. 41).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
166
Amount of costs where costs are payable pursuant to a contract
48.3. (1) Where the court assesses (whether by the summary or detailed procedure) costs which are payable by the paying party to the receiving party under the terms of a contract, the costs payable under those terms are, unless the contract expressly provides otherwise, to be presumed to be costs which—
(a) have been reasonably incurred; and (b) are reasonable in amount,
and the court will assess them accordingly.
(The costs practice direction sets out circumstances where the court may order otherwise) (2) This rule does not apply where the contract is between a solicitor and his client.
Limitations on court’s power to award costs in favour of trustee or personal representative
48.4. (1) This rule applies where— (a) a person is or has been a party to any proceedings in the capacity of trustee or personal
representative; and (b) rule 48.3 does not apply.
(2) The general rule is that he is entitled to the costs of those proceedings on the indemnity basis, so far as they are not recovered from or paid by any other person, out of the fund held by him as trustee or personal representative.
(3) The court may order otherwise but only if a trustee or personal representative has acted for a benefit other than that of the fund.
Costs where money is payable by or to a child or patient
48.5. (1) This rule applies to any proceedings where a party is a child or patient and— (a) money is ordered or agreed to be paid to, or for the benefit of, that party; or (b) money is ordered to be paid by him or on his behalf.
(“Child” and “patient” are defined in rule 2.3) (2) The general rule is that—
(a) the court must order a detailed assessment of the costs payable by any party who is a child or patient to his solicitor; and
(b) on an assessment under paragraph (a), the court must also assess any costs payable to that party in the proceedings, unless the court has issued a default costs certificate in relation to those costs under rule 47.11.
(3) The court need not order detailed assessment of costs in the circumstances set out in the costs practice direction.
(4) Where— (a) a claimant is a child or patient; and (b) a detailed assessment has taken place under paragraph (2)(a),
the only amount payable by the child or patient to his solicitor is the amount which the court certifies as payable.
(This rule applies to a counterclaim by or on behalf of child or patient by virtue of rule 20.3)
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
167
Litigants in person
48.6. (1) This rule applies where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person.
(2) The costs allowed under this rule must not exceed, except in the case of a disbursement, two- thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.
(3) Costs allowed to the litigant in person shall be— (a) such costs which would have been allowed if the work had been done or the disbursements
made by a legal representative on the litigant in person’s behalf; (b) the payments reasonably made by him for legal services relating to the conduct of the
proceedings; and (c) the costs of obtaining expert assistance in connection with assessing the claim for costs.
(The costs practice direction deals with who may be an expert for the purpose of paragraph (2)(c)) (4) Subject to paragraph (2), the amount of costs to be allowed to the litigant in person for any
item of work to which the costs relate shall, if he fails to prove financial loss, be an amount in respect of the time spent reasonably doing the work at the rate specified in the costs practice direction.
(5) A litigant who is allowed costs for attending at court to conduct his case is not entitled to a witness allowance in respect of such attendance in addition to those costs.
(6) For the purposes of this rule, a litigant in person includes— (a) a company or other corporation which is acting without a legal representative; and (b) a barrister, solicitor, solicitor’s employee or other authorised litigator (as defined in the
Courts and Legal Services Act 1990(72)) who is acting for himself. SECTION II—COSTS RELATING TO SOLICITORS AND OTHER LEGAL REPRE SENTATIVES
Personal liability of legal representative for costs—wasted costs orders
48.7. (1) This rule applies where the court is considering whether to make an order under section 51(6) of the Supreme Court Act 1981(73) (court’s power to disallow or (as the case may be) order a legal representative to meet, “wasted costs”).
(2) The court must give the legal representative a reasonable opportunity to attend a hearing to give reasons why it should not make such an order.
(3) For the purposes of this rule, the court may direct that privileged(GL) documents are to be disclosed to the court and, if the court so directs, to the other party to the application for an order.
(4) When the court makes a wasted costs order, it must specify the amount to be disallowed or paid.
(5) The court may direct that notice must be given to the legal representative’s client, in such manner as the court may direct—
(a) of any proceedings under this rule; or (b) of any order made under it against his legal representative.
(6) Before making a wasted costs order, the court may direct a costs judge or a district judge to inquire into the matter and report to the court.
(72) 1990 c. 41. (73) 1981 c. 54. Section 51 was substituted by section 4(1) of the Courts and Legal Services Act 1990 (c. 41).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
168
(7) The court may refer the question of wasted costs to a costs judge or a district judge, instead of making a wasted costs order.
Basis of detailed assessment of solicitor and client costs
48.8. (1) This rule applies to every assessment of a solicitor’s bill to his client except— (a) a bill which is to be paid out of the legal aid fund under the Legal Aid Act 1988(74); or (b) where the solicitor and his client have entered into a conditional fee agreement as defined
by section 58 of the Courts and Legal Services Act 1990(75). (2) Costs are to be assessed on the indemnity basis but are to be presumed—
(a) to have been reasonably incurred if they were incurred with the express or implied approval of the client;
(b) to be reasonable in amount if their amount was expressly or impliedly approved by the client;
(c) to have been unreasonably incurred if— (i) they are of an unusual nature or amount; and
(ii) the solicitor did not tell his client that as a result he might not recover all of them from the other party.
Conditional fees
48.9. (1) This rule applies to every assessment (whether by the summary or detailed procedure) of a solicitor’s bill to his client where the solicitor and the client have entered into a conditional fee agreement as defined in section 58 of the Courts and Legal Services Act 1990.
(2) In this rule— “the base costs” means the costs other than a percentage increase; “percentage increase” means a percentage increase pursuant to a conditional fee agreement entered into between the solicitor and his client or between counsel and the solicitor, or counsel and the client; and “costs” includes all fees, charges, disbursements and other expenses charged by the solicitor or counsel under the conditional fee agreement in question.
(3) On an assessment to which this rule applies, the client may apply for assessment of the base costs or of a percentage increase or of both.
(4) Where the client applies for assessment of the base costs, the base costs are to be assessed in accordance with rule 48.8(2) as if the solicitor and his client had not entered into a conditional fee agreement.
(5) Where the client applies for assessment of a percentage increase, the court may reduce the percentage increase where it considers it to be disproportionate having regard to all relevant factors as they reasonably appeared to the solicitor or counsel when the conditional fee agreement was entered into.
(6) The court will not vary a percentage increase where the client is a child or patient, except in accordance with paragraph (5).
(The costs practice direction specifies some of the relevant factors)
(74) 1988 c. 34. (75) 1990 c. 41. Section 58 was amended by the Family Law Act 1996 (c. 27), Schedule 8, Part III, paragraph 61.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
169
Assessment procedure
48.10. (1) This paragraph sets out the procedure to be followed where the court has made an order under Part III of the Solicitors Act 1974(76) for the assessment of costs payable to a solicitor by his client.
(2) The solicitor must serve a breakdown of costs within 28 days of the order for costs to be assessed.
(3) The client must serve points of dispute within 14 days after service on him of the breakdown of costs.
(4) If the solicitor wishes to serve a reply, he must do so within 14 days of service on him of the points of dispute.
(5) Either party may file a request for a hearing date— (a) after points of dispute have been served; but (b) no later than 3 months after the date of the order for the costs to be assessed.
(6) This procedure applies subject to any contrary order made by the court.
PART 49 SPECIALIST PROCEEDINGS
49. (1) These Rules shall apply to the proceedings listed in paragraph (2) subject to the provisions of the relevant practice direction which applies to those proceedings.
(2) The proceedings referred to in paragraph (1) are— (a) admiralty proceedings; (b) arbitration proceedings; (c) commercial and mercantile actions; (d) Patents Court business (as defined by the relevant practice direction) and proceedings
under— (i) the Copyright, Designs and Patents Act 1988(77);
(ii) the Trade Marks Act 1994(78); and (iii) the Olympic Symbol etc Protection Act 1995(79) and Olympics Association Right
(Infringement Proceedings) Regulations 1995(80); (e) Technology and Construction Court Business (as defined by the relevant practice
direction); (f) proceedings under the Companies Act 1985(81) and the Companies Act 1989(82); and (g) contentious probate proceedings.
(76) 1974 c. 47. (77) 1988 c. 48. (78) 1994 c. 26. (79) 1995 c. 32. (80) S.I. 1995/3325. (81) 1985 c. 6. (82) 1989 c. 40.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
170
PART 50 APPLICATION OF THE SCHEDULES
50. (1) The Schedules to these Rules set out, with modifications, certain provisions previously contained in the Rules of the Supreme Court 1965(83) and the County Court Rules 1981(84).
(2) These Rules apply in relation to the proceedings to which the Schedules apply subject to the provisions in the Schedules and the relevant practice directions.
(3) A provision previously contained in the Rules of the Supreme Court 1965— (a) is (GL)ed “RSC”; (b) is numbered with the Order and rule numbers it bore as part of the RSC; and (c) unless otherwise stated in the Schedules or the relevant practice direction, applies only to
proceedings in the High Court. (4) A provision previously contained in the County Court Rules 1981—
(a) is (GL)ed “CCR”; (b) is numbered with the Order and rule numbers it bore as part of the CCR; and (c) unless otherwise stated in the Schedules or the relevant practice direction, applies only to
proceedings in the county court. (5) A reference in a Schedule to a rule by number alone is a reference to the rule so numbered
in the Order in which the reference occurs. (6) A reference in a Schedule to a rule by number prefixed by “CPR” is a reference to the rule
with that number in these Rules. (7) In the Schedules, unless otherwise stated, “the Act” means—
(a) in a provision (GL)ed “RSC”, the Supreme Court Act 1981; and (b) in a provision (GL)ed “CCR”, the County Courts Act 1984.
PART 51 TRANSITIONAL ARRANGEMENTS
51. A practice direction shall make provision for the extent to which these Rules shall apply to proceedings issued before 26th April 1999.
GLOSSARY
Scope
This glossary is a guide to the meaning of certain legal expressions as used in these Rules, but it does not give the expressions any meaning in the Rules which they do not otherwise have in the law.
Expression Meaning Affidavit A written, sworn statement of evidence.
(83) S.I. 1965/1776. (84) S.I. 1981/1687.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
171
Expression Meaning Alternative dispute resolution Collective description of methods of resolving
disputes otherwise than through the normal trial process.
Base rate The interest rate set by the Bank of England which is used as the basis for other banks' rates.
Contribution A right of someone to recover from a third person all or part of the amount which he himself is liable to pay.
Counterclaim A claim brought by a defendant in response to the claimant’s claim, which is included in the same proceedings as the claimant’s claim.
Cross-examination (and see “evidence in chief”)
Questioning of a witness by a party other than the party who called the witness.
Damages A sum of money awarded by the court as compensation to the claimant.
• aggravated damages Additional damages which the court may award as compensation for the defendant’s objectionable behaviour
• exemplary damages Damages which go beyond compensating for actual loss and are awarded to show the court’s disapproval of the defendant’s behaviour
Defence of tender before claim A defence that, before the claimant started proceedings, the defendant unconditionally offered to the claimant the amount due or, if no specified amount is claimed, an amount sufficient to satisfy the claim.
Evidence in chief (and see “cross- examination”)
The evidence given by a witness for the party who called him.
Indemnity A right of someone to recover from a third party the whole amount which he himself is liable to pay.
Injunction A court order prohibiting a person from doing something or requiring a person to do something.
Joint liability (and see “several liability”) Parties who are jointly liable share a single liability and each party can be held liable for the whole of it.
Limitation period The period within which a person who has a right to claim against another person must start court proceedings to establish that right. The expiry of the period may be a defence to the claim.
List Cases are allocated to different lists depending on the subject matter of the case. The lists are
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
172
Expression Meaning used for administrative purposes and may also have their own procedures and judges.
Official copyA copy of an official document, supplied and marked as such by the office which issued the original.
Practice form Form to be used for a particular purpose in proceedings, the form and purpose being specified by a practice direction.
Pre-action protocol Statements of understanding between legal practitioners and others about pre-action practice and which are approved by a relevant practice direction.
Privilege The right of a party to refuse to disclose a document or produce a document or to refuse to answer questions on the ground of some special interest recognised by law.
Seal A seal is a mark which the court puts on a document to indicate that the document has been issued by the court.
Service Steps required by rules of court to bring documents used in court proceedings to a person’s attention.
Set aside Cancelling a judgment or order or a step taken by a party in the proceedings.
Several liability (and see “joint liability”) A person who is severally liable with others may remain liable for the whole claim even where judgment has been obtained against the others.
Stay A stay imposes a halt on proceedings, apart from taking any steps allowed by the Rules or the terms of the stay. Proceedings can be continued if a stay is lifted.
Strike out Striking out means the court ordering written material to be deleted so that it may no longer be relied upon.
Without prejudice Negotiations with a view to a settlement are usually conducted “without prejudice” which means that the circumstances in which the content of those negotiations may be revealed to the court are very restricted.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
173
Woolf M.R., Richard Scott V-C., Anthony May L.J.,
John Leslie Richard Holman
Godfrey Gypps Henrietta Manners
Nicholas Chambers David Foskett Peter Watson
Peter Haworth David Greene
Harriet Kimbell Olivia Morrison-Lyons
I allow these Rules which shall come into force on 26th April 1999
Dated 10th December 1998 Irvine of Laing, C.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
174
SCHEDULE 1 Rule 50(3)
RSC ORDER 10 SERVICE OF ORIGINATING PROCESS: GENERAL PROVISIONS
Service of claim form in certain actions for possession of land
Rule 4. Where a claim form contains a claim for the possession of land, the Court may— (a) if satisfied on an application without notice being served on any other party that no person
appears to be in possession of the land and that service cannot be otherwise effected on any defendant, authorise service on that defendant to be effected by affixing a copy of the claim form to some conspicuous part of the land;
(b) if satisfied on such an application that no person appears to be in possession of the land and that service could not otherwise have been effected on any defendant, order that service already effected by affixing a copy of the claim form to some conspicuous part of the land shall be treated as good service on that defendant.
RSC ORDER 11 SERVICE OF PROCESS, ETC., OUT OF THE JURISDICTION
Principal cases in which service of claim form out of jurisdiction is permissible
Rule 1. (1) Provided that the claim form does not contain any claim mentioned in Order 75, r.2 (1) and is not a claim form to which paragraph (2) of this rule applies, a claim form may be served out of the jurisdiction with the permission of the Court if—
(a) a remedy is sought against a person domiciled within the jurisdiction; (b) an injunction is sought ordering the defendant to do or refrain from doing anything within
the jurisdiction (whether or not damages are also claimed in respect of a failure to do or the doing of that thing);
(c) the claim is brought against a person duly served within or out of the jurisdiction and a person out of the jurisdiction is a necessary or proper party thereto;
(d) the claim is brought to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain any other remedy in respect of the breach of a contract, being (in either case) a contract which—
(i) was made within the jurisdiction; or (ii) was made by or through an agent trading or residing within the jurisdiction on behalf
of a principal trading or residing out of the jurisdiction; or (iii) is by its terms, or by implication, governed by English law, or (iv) contains a term to the effect that the High Court shall have jurisdiction to hear and
determine any claim in respect of the contract; (e) the claim is brought in respect of a breach committed within the jurisdiction of a contract
made within or out of the jurisdiction, and irrespective of the fact, if such be the case, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible the performance of so much of the contract as ought to have been performed within the jurisdiction;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
175
(f) the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction;
(g) the whole subject—matter of the proceedings is land situate within the jurisdiction (with or without rents or profits) or the perpetuation of testimony relating to land so situate;
(h) the claim is brought to construe, rectify, set aside or enforce an act, deed, will, contract, obligation or liability affecting land situate within the jurisdiction;
(i) the claim is made for a debt secured on immovable property or is made to assert, declare or determine proprietary or possessory rights, or rights of security, in or over movable property, or to obtain authority to dispose of movable property, situate within the jurisdiction;
(j) the claim is brought to execute the trusts of a written instrument being trusts that ought to be executed according to English law and of which the person to be served with the claim form is a trustee, or for any remedy which might be obtained in any such action;
(k) the claim is made for the administration of the estate of a person who died domiciled within the jurisdiction or for any remedy which might be obtained in any such action;
(l) the claim is brought in a probate action; (m) the claim is brought to enforce any judgment or arbitral award; (n) the claim is brought against a defendant not domiciled in Scotland or Northern Ireland
in respect of a claim by the Commissioners of Inland Revenue for or in relation to any of the duties or taxes which have been, or are for the time being, placed under their care and management;
(o) the claim is brought under the Nuclear Installations Act 1965(85) or in respect of contributions under the Social Security Contributions and Benefits Act 1992(86);
(p) the claim is made for a sum to which the Directive of the Council of the European Communities dated 15th March 1976 No.76/308/EEC applies, and service is to be effected in a country which is a member State of the European Economic Community;
(q) the claim is made under the Drug Trafficking Offences Act 1994(87); (r) the claim is made under the Financial Services Act 1986(88) or the Banking Act 1987(89); (s) the claim is made under Part VI of the Criminal Justice Act 1988(90); (t) the claim is brought for money had and received or for an account or other remedy against
the defendant as constructive trustee, and the defendant’s alleged liability arises out of acts committed, whether by him or otherwise, within the jurisdiction;
(u) the claim is made under the Immigration (Carriers' Liability) Act 1987(91). (2) A claim form may be served out of the jurisdiction on a defendant without the permission of
the Court provided that each claim against that defendant is either— (a) a claim which by virtue of the Civil Jurisdiction and Judgments Act 1982(92) the Court
has power to hear and determine, made in proceedings to which the following conditions apply—
(85) 1965. c.57. (86) 1992 c. 4. (87) 1994 c. 37. (88) 1986 c. 60. (89) 1987 c. 22. (90) 1988 c. 33. (91) 1987 c. 24. (92) 1982 c. 27; Schedule 1 was substituted by S.I. 1989/1346; Schedule 3C was inserted by the Civil Jurisdiction and Judgments
Act 1991(c. 12), section 1(3), schedule 1; Schedule 4 was amended by S.I. 1993/603. Sections 41 to 46 were amended by the Civil Jurisdiction and Judgments Act 1991, section 3, schedule 2, paragraphs 16 to 21.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
176
(i) no proceedings between the parties concerning the same cause of action are pending in the courts of any other part of the United Kingdom or of any other Convention territory; and
(ii) either the defendant is domiciled in any part of the United Kingdom or in any other Convention territory, or the proceedings begun by the claim form are proceedings to which Article 16 of Schedule 1, 3C or 4 refers, or the defendant is a party to an agreement conferring jurisdiction to which Article 17 of Schedule 1, 3C or 4 to that Act applies; or
(b) a claim which by virtue of any other enactment the High Court has power to hear and determine notwithstanding that the person against whom the claim is made is not within the jurisdiction of the Court or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction.
(4) For the purposes of this rule, and of r.9 of this Order, domicile is to be determined in accordance with the provisions of sections 41 to 46 of the Civil Jurisdiction and Judgments Act 1982 and “Convention territory” means the territory or territories of any Contracting State, as defined by s.1 (3) of that Act, to which, as defined in s.1 (1) of that Act, the Brussels or the Lugano Convention apply.
The period for filing an acknowledgment of service or filing or serving an admission where the claim form is served under rule 1(2)
Rule1A. (1) This rule sets out the period for filing an acknowledgment of service under CPR Part 10 or filing or serving an admission under CPR Part 14 where a claim form has been served out of the jurisdiction under rule 1(2).
(2) If the claim form is to be served under rule 1(2)(a) in Scotland, Northern Ireland or in the European territory of another contracting state the period is—
(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 21 days after the service of the particulars of claim; and
(b) in any other case, 21 days after service of the claim form. (3) If the claim form is to be served under rule 1(2)(a) in any other territory of a Contracting
State the period is— (a) where the defendant is served with a claim form which states that particulars of claim are
to follow, 31 days after the service of the particulars of claim; and (b) in any other case, 31 days after service of the claim form.
(4) If the claim form is to be served under— (a) rule 1(2)(a) in a country not referred to in paragraphs (2) or (3); or (b) rule 1(2)(b),
the period is set out in the relevant practice direction.
The period for filing a defence where the claim form is served under rule 1(2)
Rule1B. (1) This rule sets out the period for filing a defence under CPR Part 15 where a claim form has been served out of the jurisdiction under rule 1(2).
(2) If the claim form is to be served under rule 1(2)(a) in Scotland, Northern Ireland or in the European territory of another contracting state the period is—
(a) 21 days after service of the particulars of claim; or
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
177
(b) if the defendant files an acknowledgment of service under CPR Part 8, 35 days after service of the particulars of claim.
(3) If the claim form is to be served under rule 1(2)(a) in any other territory of a Contracting State the period is—
(a) 31 days after service of the particulars of claim; or (b) if the defendant files an acknowledgment of service under CPR Part 8, 45 days after service
of the particulars of claim. (4) If the claim form is to be served under—
(a) rule 1(2)(a) in a country not referred to in paragraphs (2) or (3); or (b) rule 1(2)(b),
the period is set out in the relevant practice direction.
Application for, and grant of, permission to serve claim form out of jurisdiction
Rule 4. (1) An application for the grant of permission under rule 1 (1) must be supported by written evidence stating—
(a) the grounds on which the application is made; (b) that in the belief of the witness the claimant has a good cause of action; (c) in what place or country the defendant is, or probably may be found; and (d) where the application is made under rule 1 (1)(c), the grounds for the belief of the witness
that there is between the claimant and the person on whom a claim form has been served a real issue which the claimant may reasonably ask the Court to try.
(2) No such permission shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.
(3) Where the application is for the grant of permission under rule 1 to serve a claim form in Scotland or Northern Ireland, if it appears to the Court that there may be a concurrent remedy there, the Court, in deciding whether to grant permission shall have regard to the comparative cost and convenience of proceeding there or in England, and (where that is relevant) to the powers and jurisdiction of the sheriff court in Scotland or the county courts or courts of summary jurisdiction in Northern Ireland.
(4) An order granting under rule 1 permission to serve a claim form, out of the jurisdiction must specify the periods within which the defendant may—
(a) file an acknowledgment of service in accordance with CPR Part 10; (b) file or serve an admission in accordance with CPR Part 14; and (c) file a defence in accordance with CPR Part 15.
Service of claim form abroad: general
Rule 5. (1) Subject to paragraphs (2) to (8) of this rule— (a) a claim form must be served personally on each defendant by the claimant or his agent; (b) where a defendant’s solicitor indorses on the claim form a statement that he accepts service
of the claim form on behalf of that defendant, the claim form shall be deemed to have been duly served on that defendant and to have been so served on the date on which the indorsement was made;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
178
(c) where a claim form is not duly served on a defendant but he acknowledges service of it, the claim form shall be deemed, unless the contrary is shown, to have been duly served on him and to have been so served on the date on which he acknowledges service;
(d) CPR rule 6.8 (service by an alternative method) shall apply in relation to the claim form. (2) Nothing in this rule or in any order or direction of the court made by virtue of it shall authorise
or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.
(3) A claim form which is to be served out of the jurisdiction— (a) need not be served personally on the person required to be served so long as it is served
on him in accordance with the law of the country in which service is effected; and (b) need not be served by the claimant or his agent if it is served by a method provided for
by rule 6 or rule 7. (5) An official certificate stating that a claim form as regards which rule 6 has been complied
with has been served on a person personally or in accordance with the law of the country in which service was effected, on a specified date, being a certificate—
(a) by a British consular authority in that country; (b) by the government or judicial authorities of that country; or (c) by any other authority designated in respect of that country under the Hague Convention,
shall be evidence of the facts so stated. (6) An official certificate by the Secretary of State stating that a claim form has been duly served
on a specified date in accordance with a request made under rule 7 shall be evidence of that fact. (7) A document purporting to be such a certificate as is mentioned in paragraph (5) or (6) shall,
until the contrary is proved, be deemed to be such a certificate. (8) In this rule and rule 6 “the Hague Convention” means the Convention on the service abroad
of judicial and extra—judicial documents in civil or commercial matters signed at the Hague on November 15, 1965.
Service of claim form abroad through foreign governments, judicial authorities and British consuls
Rule 6. (1) Save where a claim form is to be served pursuant to paragraph (2A) this rule does not apply to service in—
(a) Scotland, Northern Ireland, the Isle of Man or the Channel Islands; (b) any independent Commonwealth country; (c) any associated state; (d) any colony; (e) the Republic of Ireland.
(2) Where in accordance with these rules a claim form is to be served on a defendant in any country with respect to which there subsists a Civil Procedure Convention (other than the Hague Convention) providing for service in that country of process of the High Court, the claim form may be served—
(a) through the judicial authorities of that country; or (b) through a British consular authority in that country (subject to any provision of the
convention as to the nationality of persons who may be so served). (2A) Where in accordance with these rules, a claim form is to be served on a defendant in any
country which is a party to the Hague Convention, the claim form may be served—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
179
(a) through the authority designated under the Convention in respect of that country; or (b) if the law of that country permits—
(i) through the judicial authorities of that country, or (ii) through a British consular authority in that country.
(3) Where in accordance with these rules a claim form is to be served on a defendant in any country with respect to which there does not subsist a Civil Procedure Convention providing for service in that country of process of the High Court, the claim form may be served—
(a) through the government of that country, where that government is willing to effect service; or
(b) through a British consular authority in that country, except where service through such an authority is contrary to the law of that country.
(4) A person who wishes to serve a claim form by a method specified in paragraph (2), (2A) or (3) must file in the Central Office of the Supreme Court a request for service of the claim form by that method, together with a copy of the claim form and an additional copy thereof for each person to be served.
(5) Every copy of a claim form filed under paragraph (4) must be accompanied by a translation of the claim form in the official language of the country in which service is to be effected or, if there is more than one official language of that country, in any one of those languages which is appropriate to the place in that country where service is to be effected:
Provided that this paragraph shall not apply in relation to a copy of a claim form which is to be served in a country the official language of which is, or the official languages of which include, English, or is to be served in any country by a British consular authority on a British subject, unless the service is to be effected under paragraph (2) and the Civil Procedure Convention with respect to that country expressly requires the copy to be accompanied by a translation.
(6) Every translation lodged under paragraph (5) must be certified by the person making it to be a correct translation, and the certificate must contain a statement of that person’s full name, of his address and of his qualifications for making the translation.
(7) Documents duly filed under paragraph (4) shall be sent by the Senior Master to the Parliamentary Under—Secretary of State to the Foreign Office with a request that he arrange the claim form to be served by the method indicated in the request lodged under paragraph (4) or, where alternative methods are so indicated, by such one of those methods as is most convenient.
Service of claim form in certain actions under certain Acts
Rule 7. (1) Subject to paragraph (4) where a person to whom permission has been granted under rule 1 to serve a claim form on a State, as defined in section 14 of the State Immunity Act 1978(93), wishes to have the claim form served on that State, he must file in the Central Office—
(a) a request for service to be arranged by the Secretary of State; and (b) a copy of the claim form; and (c) except where the official language of the State is, or the official languages of the State
include, English, a translation of the claim form in the official language or one of the official languages of that State.
(2) Rule 6 (6) shall apply in relation to a translation filed under paragraph (1) of this rule as it applies in relation to a translation filed under paragraph (5) of that rule.
(3) Documents duly filed under this Rule shall be sent by the Senior Master to the Secretary of State with a request that the Secretary of State arrange for the claim form to be served.
(93) 1978 c. 33.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
180
(4) Where section 12 (6) of the State Immunity Act 1978 applies and the State has agreed to a method of service other than that provided by the preceding paragraphs, the claim form may be served either by the method agreed or in accordance with the preceding paragraphs of this rule.
Undertaking to pay expenses of service by Secretary of State
Rule 8. Every request lodged under rule 6 (4) or rule 7 must contain an undertaking by the person making the request to be responsible personally for all expenses incurred by the Secretary of State in respect of the service requested and, on receiving due notification of the amount of those expenses, to pay that amount to the Finance Officer of the office of the Secretary of State and to produce a receipt for the payment to the proper officer of the High Court.
Applications for an interim remedy under section 25 (1) of the Civil Jurisdiction and Judgments Act 1982
Rule 8A. (1) A claim form for an interim remedy under section 25 (1) of the Civil Jurisdiction and Judgments Act 1982(94) (as extended by Order in Council made under section 25 (3)) may be served out of the jurisdiction with the permission of the Court.
(2) An application for the grant of permission under paragraph (1) must be supported by written evidence stating—
(a) the grounds on which the application is made; (b) that in the belief of the witness the claimant has a good claim to an interim remedy; (c) in what place or country the defendant is, or probably may be, found.
(3) The following provisions of this Order shall apply, with the necessary modifications, where service is to be effected under this rule as they apply where service is effected under rule 1—
Rule 1A (period for acknowledging service or filing or serving admission) Rule 1B (period for filing defence); Rule 4 (2), (3) and (4) (grant of permission); Rule 5 (service of claim form abroad: generan( � Rule 6 (service of claim form abroad through foreign governments, etc.); and Rule 8 (undertaking to pay expenses of service).
Service of petition and order etc.
Rule 9. (1) Rule 1 of this Order shall apply to the service out of the jurisdiction of a petition as it applies to service of a claim form.
(4) Any application notice issued or order made in any proceedings may be served out of the jurisdiction with the permission of the Court but permission shall not be required for such service in any proceedings in which the claim form may by these rules or under any Act be served out of the jurisdiction without permission.
(5) Rule 4 (1), (2) and (3) shall, so far as applicable, apply in relation to an application for the grant of permission under this rule as they apply in relation to an application for the grant of permission under rule 1.
(7) Rules 5, 6 and 8 shall apply in relation to any document for the service of which out of the jurisdiction permission has been granted under this rule as they apply in relation to a claim form.
(94) 1982 c. 27. Section 25 was amended by the Civil Jurisiction and Judgments Act 1991 (c. 12), section 3, schedule 2, paragraph 12.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
181
Order to apply to county court
Rule 10. This order applies to proceedings in any county court in addition to proceedings in the High Court.
RSC ORDER 15 CAUSES OF ACTION, COUNTERCLAIMS AND PARTIES
Proceedings against estates
Rule 6A. (1) Where any person against whom a claim would have lain has died but the cause of action survives, the claim may, if no grant of probate or administration has been made, be brought against the estate of the deceased.
(2) Without prejudice to the generality of paragraph (1), a claim brought against “the personal representatives of A.B. deceased” shall be treated, for the purposes of that paragraph, as having been brought against his estate.
(3) A claim purporting to have been commenced against a person shall be treated, if he was dead at its commencement, as having been commenced against his estate in accordance with paragraph (1), whether or not a grant of probate or administration was made before its commencement.
(4) In any such claim as is referred to in paragraph (1) or (3)— (a) the claimant shall, during the period of validity for service of the claim form, apply to the
court for an order appointing a person to represent the deceased’s estate for the purpose of the proceedings or, if a grant of probate or administration has been made for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;
(b) the court may, at any stage of the proceedings and on such terms as it thinks just and either of its own motion or on application, make any such order as is mentioned in paragraph (a) and allow such amendments (if any) to be made and make such other order as the Court thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.
(5) Before making an order under paragraph (4) the Court may require notice to be given to any insurer of the deceased who has an interest in the proceedings and to such (if any) of the persons having an interest in the estate as it thinks fit.
(5A) Where an order is made under paragraph (4) appointing the Official Solicitor to represent the deceased’s estate, the appointment shall be limited to his accepting service of the claim form by which the proceedings were begun unless, either on making such an order or on a subsequent application, the Court, with the consent of the Official Solicitor, directs that the appointment shall extend to taking further steps in the proceedings.
(6) Where an order is made under paragraph (4), rules 7 (4) and 8 (3) and (4) shall apply as if the order had been made under rule 7 on the application of the claimant.
(7) Where no grant of probate or administration has been made, any judgment or order given or made in the proceedings shall bind the estate to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceedings.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
182
Change of parties by reason of death, etc.
Rule 7. (1) Where a party to a claim dies or becomes bankrupt but the cause of action survives, the claim shall not abate by reason of the death or bankruptcy.
Failure to proceed after death of party
Rule 9. (1) If after the death of a claimant or defendant in any claim the cause of action survives, but no order under rule 7 is made substituting as claimant any person in whom the cause of claim vests or, as the case may be, the personal representatives of the deceased defendant, the defendant or, as the case may be, those representatives may apply to the Court for an order that unless the claim is proceeded with within such time as may be specified in the order the claim shall be struck out as against the claimant or defendant, as the case may be, who has died; but where it is the claimant who has died, the Court shall not make an order under this rule unless satisfied that due notice of the application has been given to the personal representatives (if any) of the deceased claimant and to any other interested persons who, in the opinion of the Court, should be notified.
Relator actions
Rule 11. Before the name of any person is used in any claim as a relator, that person must give a written authorisation so to use his name to his solicitor and the authorisation must be filed in the Central Office of the Supreme Court or Chancery Chambers, or, if the claim form is to issue out of a district registry, in that registry.
Representative proceedings
Rule 12. (1) Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2) At any stage of proceedings under this rule the Court may, on the application of the claimant, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued to represent all, or all except one or more, of those persons in the proceedings; and where, in exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall make an order adding that person as a defendant.
(3) A judgment or order given in proceedings under this rule shall be binding on all the persons as representing whom the claimants sue or, as the case may be, the defendants are sued, but shall not be enforced against any person not a party to the proceedings except with the permission of the Court.
(4) An application for the grant of permission under paragraph (3) must be made in accordance with CPR Part 23 (general rules about applications for court orders) and the application notice must be served personally on the person against whom it is sought to enforce the judgment or order.
(5) Notwithstanding that a judgment or order to which any such application relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability.
(6) The Court hearing an application for the grant of permission under paragraph (3) may order the question whether the judgment or order is enforceable against the person against whom the application is made to be tried and determined in any manner in which any issue or question in claim may be tried and determined.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
183
Derivative claims
Rule 12A. (1) This rule applies to every claim by one or more shareholders of a company where the cause of action is vested in the company and relief is accordingly sought on its behalf (referred to in this rule as a “derivative claim”).
(2) Where a defendant in a derivative claim has responded to the particulars of claim, the claimant must apply to the Court for permission to continue the claim.
(3) The application must be supported by a witness statement or affidavit verifying the facts on which the claim and the entitlement to sue on behalf of the company are based.
(4) Unless the Court otherwise orders, the application must be issued within 21 days after the relevant date, and must be served, together with the witness statement or affidavit in support and any exhibits to the witness statement or affidavit, not less than 10 clear days before the return day on all defendants who have responded to the particulars of claim; any defendant so served may show cause against the application by witness statement or affidavit or otherwise.
(5) In paragraph (4), “the relevant date” means the later of— (a) the date of service of the particulars of claim; or (b) the date when the defendant responded to the particulars of claim (provided that, where
there is more than one defendant, that date shall be the earliest date when any of them respond).
(6) Nothing in this rule shall prevent the claimant from applying for interim relief pending the determination of an application for permission to continue the claim.
(7) In a derivative claim, CPR rule 15.4 (period for filing a defence) shall not have effect unless the Court grants permission to continue the claim and, in that case, shall have effect as if it required the defendant to serve a defence within 14 days after the order giving permission to continue, or within such other period as the Court may specify.
(8) On the hearing of the application under paragraph (2), the Court may— (a) grant permission to continue the claim, for such period and upon such terms as the Court
may think fit; (b) subject to paragraph (11), dismiss the claim; or (c) adjourn the application and give such directions as to joinder of parties, the filing of further
evidence, disclosure, cross examination of witnesses and otherwise as it may consider expedient.
(9) If the claimant does not apply for permission to continue the claim as required by paragraph (2) within the time laid down in paragraph (4), any defendant who has responded to the particulars of claim may apply for an order to dismiss the proceedings or any claim made in them by way of derivative claim.
(10) On the hearing of such an application for dismissal, the Court may— (a) subject to paragraph (11), dismiss the claim; (b) if the claimant so requests, grant the claimant (on such terms as to costs or otherwise as the
Court may think fit) an extension of time to apply for permission to continue the claim; or (c) make such other order as may in the circumstances be appropriate.
(11) Where only part of the relief claimed is sought on behalf of the company, the Court may dismiss the claim for that part of the relief under paragraphs (8) and (10), without prejudice to the claimant right to continue the claim as to the remainder of the relief and CPR rule 15.4 (period for filing a defence) shall apply as modified by paragraph (7).
(12) If there is a material change in circumstances after the Court has given permission to the claimant to continue the claim in pursuance of an application under paragraph (2), any defendant who
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
184
has responded to the particulars of claim may make an application supported by witness statement or affidavit requiring the claimant to show cause why the Court should not dismiss the proceedings or any claim made in them by way of derivative claim. On such application the Court shall have the same powers as it would have had upon an application under paragraph (2).
(13) The claimant may include in an application under paragraph (2) an application for an indemnity out of the assets of the company in respect of costs incurred or to be incurred in the claim and the Court may grant such indemnity upon such terms as may in the circumstances be appropriate.
(14) So far as possible, any application under paragraph (13) and any application by the claimant under CPR Part 24 shall be made so as to be heard at the same time as the application under paragraph (2).
Representation of interested persons who cannot be ascertained, etc.
Rule 13. (1) In any proceedings concerning— (a) the estate of a deceased person; or (b) property subject to a trust; or (c) the construction of a written instrument, including a statute,
the Court, if satisfied that it is expedient so to do, and that one or more of the conditions specified in paragraph (2) are satisfied, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceedings.
(2) The conditions for the exercise of the power conferred by paragraph (1) are as follows:— (a) that the person, the class or some member of the class, cannot be ascertained or cannot
readily be ascertained; (b) that the person, class or some member of the class, though ascertained, cannot be found; (c) that, though the person or the class and the members thereof can be ascertained and found,
it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purposes of saving expense.
(3) Where, in any proceedings to which paragraph (1) applies, the Court exercises the power conferred by that paragraph, a judgment or order of the Court given or made when the person or persons appointed in exercise of that power are before the Court shall be binding on the person or class represented by the person or persons so appointed.
(4) Where, in any such proceedings, a compromise is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties to the proceedings (including unborn or unascertained persons) but—
(a) there is some other person in the same interest before the Court who assents to the compromise or on whose behalf the Court sanctions the compromise, or
(b) the absent persons are represented by a person appointed under paragraph (1) who so assents,
the Court, if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order has been obtained by fraud or non—disclosure of material facts.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
185
Notice of claim to non—parties
Rule 13A. (1) At any stage in a claim to which this rule applies, the Court may, on the application of any party or of its own motion, direct that notice of the claim be served on any person who is not a party thereto but who will or may be affected by any judgment given therein.
(2) An application under this rule may be made without notice being served on any other party and shall be supported by a witness statement or affidavit stating the grounds of the application.
(3) Every notice of a claim under this rule shall be in Form No. 52 in the relevant Practice Direction and shall be issued out of the appropriate office, and the copy to be served shall be a sealed copy accompanied by a copy of the claim form and of all other statements of case served in the claim and by a form of acknowledgment of service with such modifications as may be appropriate.
(4) A person may, within 14 days of service on him of a notice under this rule, acknowledge service of the claim form and shall thereupon become a party to the claim, but in default of such acknowledgment and subject to paragraph (5) he shall be bound by any judgment given in the claim as if he was a party thereto.
(5) If at any time after service of such notice on any person the claim form is amended so as substantially to alter the relief claimed, the Court may direct that the judgment shall not bind such person unless a further notice together with a copy of the amended claim form is issued and served upon him under this rule.
(6) This rule applies to any claim relating to— (a) the estate of a deceased person; or (b) property subject to a trust.
(7) CPR rule 7.2(2) shall apply in relation to a notice of a claim under this rule as if the notice were a claim form and the person by whom the notice is issued were the claimant.
Representation of beneficiaries by trustees, etc.
Rule 14. (1) Any proceedings, including proceedings to enforce a security by foreclosure or otherwise, may be brought by or against trustees, executors or administrators in their capacity as such without joining any of the persons having a beneficial interest in the trust or estate, as the case may be; and any judgment or order given or made in those proceedings shall be binding on those persons unless the Court in the same or other proceedings otherwise orders on the ground that the trustees, executors or administrators, as the case may be, could not or did not in fact represent the interests of those persons in the first—mentioned proceedings.
(2) Paragraph (1) is without prejudice to the power of the Court to order any person having such an interest as aforesaid to be made a party to the proceedings or to make an order under rule 13.
Representation of deceased person interested in proceedings
Rule 15. (1) Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.
(2) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
186
Declaratory judgment
Rule 16. No claim or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.
Conduct of proceedings
Rule 17. The Court may give the conduct of any claim, inquiry or other proceeding to such person as it thinks fit.
RSC ORDER 17 INTERPLEADER
Entitlement to relief by way of interpleader
Rule 1. (1) Where— (a) a person is under a liability in respect of a debt or in respect of any money, goods or chattels
and he is, or expects to be, sued for or in respect of that debt or money or those goods or chattels by two or more persons making adverse claims thereto; or
(b) claim is made to any money, goods or chattels taken or intended to be taken by a sheriff in execution under any process, or to the proceeds or value of any such goods or chattels, by a person other than the person against whom the process is issued,
the person under liability as mentioned in sub-paragraph (a) or (subject to rule 2) the sheriff, may apply to the Court for relief by way of interpleader.
(2) References in this Order to a sheriff shall be construed as including references to any other officer charged with the execution of process by or under the authority of the High Court.
Claim to goods, etc., taken in execution
Rule 2. (1) Any person making a claim to or in respect of any money, goods or chattels taken or intended to be taken in execution under process of the Court, or to the proceeds or value of any such goods or chattels, must give notice of his claim to the sheriff charged with the execution of the process and must include in his notice a statement of his address, and that address shall be his address for service.
(2) On receipt of a claim made under this rule the sheriff must forthwith give notice thereof to the execution creditor and the execution creditor must, within seven days after receiving the notice, give notice to the sheriff informing him whether he admits or disputes the claim. An execution creditor who gives notice in accordance with this paragraph admitting a claim shall only be liable to the sheriff for any fees and expenses incurred by the sheriff before receipt of that notice.
(3) Where— (a) the sheriff receives a notice from an execution creditor under paragraph (2) disputing a
claim, or the execution creditor fails, within the period mentioned in that paragraph, to give the required notice; and
(b) the claim made under this rule is not withdrawn, the sheriff may apply to the Court for relief under this Order.
(4) A sheriff who receives a notice from an execution creditor under paragraph (2) admitting a claim made under this rule shall withdraw from possession of the money, goods or chattels claimed
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
187
and may apply to the Court for relief under this Order of the following kind, that is to say, an order restraining the bringing of a claim against him for or in respect of his having taken possession of that money or those goods or chattels.
Claim in respect of goods protected from seizure
Rule 2A. (1) Where a judgment debtor whose goods have been seized, or are intended to be seized, by a sheriff under a writ of execution claims that such goods are not liable to execution by virtue of section 138(3A) of the Act(95), he must within 5 days of the seizure give notice in writing to the sheriff identifying all those goods in respect of which he makes such a claim and the grounds of such claim in respect of each item.
(2) Upon receipt of a notice of claim under paragraph (1), the sheriff must forthwith give notice thereof to the execution creditor and to any person who has made a claim to, or in respect of, the goods under rule 2 (1) and the execution creditor and any person who has made claim must, within 7 days of receipt of such notice, inform the sheriff in writing whether he admits or disputes the judgment debtor’s claim in respect of each item.
(3) The sheriff shall withdraw from possession of any goods in respect of which the judgment debtor’s claim is admitted or if the execution creditor or any person claiming under rule 2 (1) fails to notify him in accordance with paragraph (2) and the sheriff shall so inform the parties in writing.
(4) Where the sheriff receives notice from— (a) the execution creditor; or (b) any such person to whom notice was given under paragraph (2), that the claim or any part
thereof is disputed, he must forthwith seek the directions of the Court and may include therein an application for an order restraining the bringing of any claim against him for, or in respect of, his having seized any of those goods or his having failed so to do.
(5) The sheriff’s application for directions under paragraph (4) shall be made by an application in accordance with CPR Part 23 and, on the hearing of the application, the Court may—
(a) determine the judgment debtor’s claim summarily; or (b) give such directions for the determination of any issue raised by such claim as may be just.
(6) A master and a district judge of a district registry shall have power to make an order of the kind referred to in paragraph (4) and the reference to master shall be construed in accordance with rule 4.
Mode of application
Rule 3. (1) An application for relief under this Order must be made by claim form unless made in an existing claim, in which case it must be made by accordance with CPR Part 23.
(2) Where the applicant is a sheriff who has withdrawn from possession of money, goods or chattels taken in execution and who is applying for relief under rule 2 (4) the claim form must be served on any person who made a claim under that rule to or in respect of that money or those goods or chattels, and that person may attend the hearing of the application.
(4) Subject to paragraph (5) a claim form or application notice under this rule must be supported by evidence that the applicant—
(a) claims no interest in the subject—matter in dispute other than for charges or costs; (b) does not collude with any of the claimants to that subject—matter; and (c) is willing to pay or transfer that subject—matter into Court or to dispose of it as the Court
may direct.
(95) Section 138 was amended by the Administration of Justice Act 1985 (c. 61), sections 55 and 67(2); and by the Courts and Legal Services Act 1990 (c. 41), section 125(2), schedule 17, paragraph 17.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
188
(5) Where the applicant is a sheriff, he shall not provide such evidence as is referred to in paragraph (4) unless directed by the Court to do so.
(6) Any person who makes a claim under rule 2 and who is served with a claim form under this rule shall within 14 days serve on the execution creditor and the sheriff a witness statement or affidavit specifying any money and describing any goods and chattels claimed and setting out the grounds upon which such claim is based.
(7) Where the applicant is a sheriff a claim form under this rule must give notice of the requirement in paragraph (6).
To whom Sheriff may apply for relief
Rule 4. An application to the Court for relief under this Order may, if the applicant is a sheriff, be made—
(a) where the claim in question is proceeding in the Royal Courts of Justice, to a Master or, if the execution to which the application relates has been or is to be levied in the district of a District Registry, either to a Master or to the District Judge of that Registry;
(b) where the claim in question is proceeding in a District Registry, to the District Judge of that Registry or, if such execution has been or is to be levied in the district of some other District Registry or outside the district of any District Registry, either to the said the District Judge or to the District Judge of that other Registry or to a Master as the case may be.
Where the claim in question is proceeding in the Admiralty Court or the Family Division, references in this rule to a Master shall be construed as references to the Admiralty Registrar or to a Registrar of that Division.
Powers of Court hearing claim
Rule 5. (1) Where on the hearing of a claim under this Order all the persons by whom adverse claims to the subject—matter in dispute (hereafter in this Order referred to as “the interpleader claimants”) appear, the Court may order—
(a) that any interpleader claimant be made a defendant in any claim pending with respect to the subject—matter in dispute in substitution for or in addition to the applicant for relief under this Order; or
(b) that an issue between the interpleader claimants be stated and tried and may direct which of the interpleader claimants is to be claimant and which defendant.
(2) Where— (a) the applicant under this Order is a sheriff; or (b) all the interpleader claimants consent or any of them so requests; or (c) the question at issue between the interpleader claimants is a question of law and the facts
are not in dispute, the Court may summarily determine the question at issue between the interpleader claimants and make an order accordingly on such terms as may be just.
(3) Where an interpleader claimant, having been duly served with a claim form under this Order, does not appear at the hearing or, having appeared, fails or refuses to comply with an order made in the proceedings, the Court may make an order declaring the interpleader claimant, and all persons claiming under him, for ever barred from prosecuting his claim against the applicant for such relief and all persons claiming under him, but such an order shall not affect the rights of the interpleader claimants as between themselves.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
189
Power to order sale of goods taken in execution
Rule 6. Where an application for relief under this Order is made by a sheriff who has taken possession of any goods or chattels in execution under any process, and an interpleader claimant alleges that he is entitled, under a bill of sale or otherwise, to the goods or chattels by way of security for debt, the Court may order those goods or chattels or any part thereof to be sold and may direct that the proceeds of sale be applied in such manner and on such terms as may be just and as may be specified in the order.
Power to stay proceedings
Rule 7. Where a defendant to a claim applies for relief under this Order in the claim, the Court may by order stay all further proceedings in the claim.
Other powers
Rule 8. Subject to the foregoing rules of this Order, the Court may in or for the purposes of any interpleader proceedings make such order as to costs or any other matter as it thinks just.
One order in several proceedings
Rule 9. Where the Court considers it necessary or expedient to make an order in any interpleader proceedings in several proceedings pending in several Divisions, or before different Judges of the same Division, the Court may make such an order; and the order shall be entitled in all those causes or matters and shall be binding on all the parties to them.
Disclosure
Rule 10. CPR Parts 31 and 18 shall, with the necessary modifications, apply in relation to an interpleader issue as they apply in relation to any other proceedings.
Trial of interpleader issue
Rule 11. (1) CPR Part 39 shall, with the necessary modifications, apply to the trial of an interpleader issue as it applies to the trial of a claim.
(2) The Court by whom an interpleader issue is tried may give such judgment or make such order as finally to dispose of all questions arising in the interpleader proceedings.
RSC ORDER 23 SECURITY FOR COSTS
Order to apply to High Court and County Court
Rule A1. This Order applies to proceedings both in the High Court and the county court.
Security for costs of proceedings, etc.
Rule 1. (1) Where, on the application of a defendant, it appears to the Court— (a) that the claimant is ordinarily resident out of the jurisdiction; or
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
190
(b) that the claimant (not being a claimant who is suing in a representative capacity) is a nominal claimant who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so; or
(c) subject to paragraph (2) that the claimant ’s address is not stated in the claim form or other originating process or is incorrectly stated therein; or
(d) that the claimant has changed his address during the course of the proceedings with a view to evading the consequences of the litigation,
then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the claimant to give such security for the defendant’s costs of the proceedings as it thinks just.
(2) The Court shall not require a claimant to give security by reason only of paragraph (1)(c) if he satisfies the Court that the failure to state his address or the mis—statement thereof was made innocently and without intention to deceive.
(3) The references in the foregoing paragraphs to a claimant and a defendant shall be construed as references to the person (howsoever described on the record) who is in the position of claimant or defendant, as the case may be, in the proceeding in question, including a proceeding on a counterclaim.
Manner of giving security
Rule 2. Where an order is made requiring any party to give security for costs, the security shall be given in such manner, at such time, and on such terms (if any) as the Court may direct.
Saving for enactments
Rule 3. This Order is without prejudice to the provisions of any enactment which empowers the Court to require security to be given for the costs of any proceedings.
RSC ORDER 30 RECEIVERS
Order to apply to High Court and County Court
Rule A1. This Order applies to proceedings both in the High Court and the county court.
Application for receiver and injunction
Rule 1. (1) An application for the appointment of a receiver made in existing proceedings must be made in accordance with CPR Part 23 and the Practice Direction supplementing that Part.
(2) An application for an injunction ancillary or incidental to an order appointing a receiver may be joined with the application for such order.
(3) The relevant Practice Direction will apply to an application for the immediate grant of such an injunction.
Giving of security by receiver
Rule 2. (1) A judgment or order directing the appointment of a receiver may include such directions as the Court thinks fit as to the giving of security by the person appointed.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
191
(2) Where by virtue of any judgment or order appointing a person named therein to be receiver a person is required to give security in accordance with this rule he must give security approved by the Court duly to account for what he receives as receiver and to deal with it as the Court directs.
(3) Unless the Court otherwise directs, the security shall be by guarantee. (4) The guarantee must be filed in the office or Registry of the Court in which the claim is
proceeding and it shall be kept as of record until duly vacated.
Remuneration of receiver
Rule 3. (1) A person appointed receiver shall be allowed such proper remuneration, if any, as may be authorised by the Court.
(2) The Court may direct that such remuneration shall be— (a) fixed by reference to such scales or rates of professional charges as it thinks fit; or (b) assessed by a costs judge or a district judge.
(3) Where remuneration is assessed by a costs judge or district judge following a direction under paragraph 2(b), CPR rules 44.4(1) and (2) and 44.5(1) will apply as though the remuneration were costs directed to be assessed on the standard basis.
(4) An appeal shall lie from the assessment in accordance with Section 8 of CPR Part 47 (CPR Rules 47.21 to 47.27)
Service of order and notice
Rule 4. A copy of the judgment or order appointing a receiver shall be served by the party having conduct of the proceedings on the receiver and all other parties to the proceedings in which the receiver has been appointed.
Receiver’s accounts
Rule 5. (1) A receiver shall submit such accounts to such parties at such intervals or on such dates as the Court may direct.
(2) Any party to whom a receiver is required to submit accounts may, on giving reasonable notice to the receiver, inspect, either personally or by an agent, the books and other papers relating to such accounts.
(3) Any party who is dissatisfied with the accounts of the receiver may give notice specifying the item or items to which objection is taken and requiring the receiver within not less than 14 days to file his accounts with the Court and a copy of such notice shall be filed in the office or Registry of the Court dealing with the proceedings.
(4) Following an examination by or on behalf of the Court of an item or items in an account to which objection is taken the result of such examination must be certified by a Master, the Admiralty Registrar, a District Judge of the Family Division or a District Judge, as the case may be, and an order may thereupon be made as to the incidence of any costs or expenses incurred.
Payment into Court by receiver
Rule 6. The Court may fix the amounts and frequency of payments into Court to be made by a receiver.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
192
Default by receiver
Rule 7. (1) Where a receiver fails to attend for the examination of any account of his, or fails to submit any account, provide access to any books or papers or do any other thing which he is required to submit, provide or do, he and any or all of the parties to the cause or matter in which he was appointed may be required to attend the Court sitting in private to show cause for the failure, and the Court may, either sitting in private or public, give such directions as it thinks proper including, if necessary, directions for the discharge of the receiver and the appointment of another and the payment of costs.
(2) Without prejudice to paragraph (1) where a receiver fails to attend for the examination of any account of his or fails to submit any account or fails to pay into Court on the date fixed by the Court any sum required to be so paid, the Court may disallow any remuneration claimed by the receiver and may, where he has failed to pay any such sum into Court, charge him with interest at the rate currently payable in respect of judgment debts in the High Court on that sum while in his possession as receiver.
Directions to receivers
Rule 8. A receiver may at any time request the Court to give him directions and such request shall state in writing the matters with regard to which directions are required.
RSC ORDER 31 SALES, ETC. OF LAND BY ORDER OF COURT: CONVEYANCING COUNSEL OF THE COURT
Order to apply to High Court and County Court
Rule A1. This Order applies to proceedings both in the High Court and the county court.
I. Sales, etc. of Land by Order of Court
Power to order sale of land
Rule 1. Where in any proceedings relating to any land it appears necessary or expedient for the purposes of the proceedings that the land or any part thereof should be sold, the Court may order that land or part to be sold, and any party bound by the order and in possession of that land or part, or in receipt of the rents and profits thereof, may be compelled to deliver up such possession or receipt to the purchaser or to such other person as the Court may direct.
In this Order “land” includes any interest in, or right over, land.
Manner of carrying out sale
Rule 2. (1) Where an order is made directing any land to be sold, the Court may permit the party or person having the conduct of the sale to sell the land in such manner as he thinks fit, or may direct that the land be sold in such manner as the Court may either by the order or subsequently direct for the best price that can be obtained, and all proper parties shall join in the sale and conveyance as the Court shall direct.
(2) The Court may give such directions as it thinks fit for the purpose of effecting the sale, including, without prejudice to the generality of the foregoing words, directions—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
193
(a) appointing the party or person who is to have the conduct of the sale; (b) fixing the manner of sale, whether by contract conditional on the approval of the Court,
private treaty, public auction, tender or some other manner; (c) fixing a reserve or minimum price; (d) requiring payment of the purchase money into Court or to trustees or other persons; (e) for settling the particulars and conditions of sale; (f) for obtaining evidence of the value of the property; (g) fixing the security (if any) to be given by the auctioneer, if the sale is to be by public
auction, and the remuneration to be allowed him; (h) requiring an abstract of the title to be referred to conveyancing counsel of the Court or
some other conveyancing counsel for his opinion thereon and to settle the particulars and conditions of sale.
Certifying result of sale
Rule 3. (1) If either the Court has directed payment of the purchase money into Court or the Court so directs, the result of a sale by order of the Court must be certified—
(a) in the case of a sale by public auction, by the auctioneer who conducted the sale; and (b) in any other case, by the solicitor of the party or person having the conduct of the sale, and
the Court may require the certificate to be verified by the witness statement or affidavit of the auctioneer or solicitor, as the case may be.
(2) The solicitor of the party or person having the conduct of the sale must file the certificate and any witness statement or affidavit in the office of the court dealing with the proceedings.
Mortgage, exchange or partition under order of the Court
Rule 4. Rules 2 and 3 shall, so far as applicable and with the necessary modifications, apply in relation to the mortgage, exchange or partition of any land under an order of the Court as they apply in relation to the sale of any land under such an order.
II. Conveyancing Counsel of the Court
Reference of matters to conveyancing counsel of Court
Rule 5. The Court may refer to the conveyancing counsel of the Court— (a) any matter relating to the investigation of the title to any property with a view to an
investment of money in the purchase or on mortgage thereof, or with a view to the sale thereof;
(b) any matter relating to the settlement of a draft of a conveyance, mortgage, settlement or other instrument; and
(c) any other matter it thinks fit,
and may act upon his opinion in the matter referred.
Objection to conveyancing counsel’s opinion
Rule 6. Any party may object to the opinion given by any conveyancing counsel on a reference under rule 5, and if he does so the point in dispute shall be determined by the Judge either sitting in private or in public as he thinks fit.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
194
Obtaining counsel’s opinion on reference
Rule 8. The order referring any matter to conveyancing counsel of the Court shall be recorded in the books of the Court and a copy of such order shall be sent by the Court to counsel and shall constitute sufficient authority for him to proceed with the reference.
RSC ORDER 44 PROCEEDINGS UNDER JUDGMENTS AND ORDERS: CHANCERY DIVISION
Application to Orders
Rule 1. In this order references to a judgment include references to an order.
Service of notice of judgment on person not a party
Rule 2. (1) Where in a claim for— (a) the administration of the estate of a deceased person; or (b) the execution of a trust; or (c) the sale of any property,
the Court gives a judgment or makes a direction which affects persons not parties to the claim, the Court may when giving the judgment or at any stage of the proceedings under the judgment direct notice of the judgment to be served on any such person and any person so served shall, subject to paragraph (4), be bound by the judgment as if he had originally been a party to the claim.
(2) If it appears that it is not practicable to serve notice of a judgment on a person directed to be served the Court may dispense with service and may also order that such person be bound by the judgment.
(3) Every notice of a judgment for service under this rule must be indorsed with a memorandum in Form No. 52A in the relevant Practice Direction and accompanied by a form of acknowledgment of service in Form No. 15 in the relevant Practice Direction with such modifications as may be appropriate and the copy of the notice to be served shall be a sealed copy.
(4) A person served with notice of a judgment may, within one month after service of the notice on him, and after acknowledging service apply to the Court to discharge, vary or add to the judgment.
(5) A person served with notice of a judgment may, after acknowledging service of the notice, attend the proceedings under the judgment.
(6) CPR Part 10 except for CPR Rule 10.2 shall apply in relation to the acknowledgment of service of a notice of judgment as if the judgment were a claim form, the person by whom the notice is served were the claimant and the person on whom it is served were a defendant.
Directions by the Court
Rule 3. (1) Where a judgment given in a proceedings in the Chancery Division contains directions which make it necessary to proceed in private under the judgment the Court may, when giving the judgment or at any time during proceedings under the judgment, give further directions for the conduct of those proceedings, including, in particular, directions with respect to—
(a) the manner in which any account or inquiry is to be prosecuted; (b) the evidence to be adduced in support thereof;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
195
(c) the preparation and service on the parties to be bound thereby of the draft of any deed or other instrument which is directed by the judgment to be settled by the Court and the service of any objections to the draft;
(d) the parties required to attend all or any part of the proceedings; (e) the representation by the same solicitors of parties who constitute a class and by different
solicitors of parties who ought to be separately represented; and (f) the time within which each proceeding is to be taken, and may fix a day or days for the
further attendance of the parties. (2) The Court may revoke or vary any directions given under this rule.
Application of rules 5 to 8
Rule 4. Rules 5 to 8 apply— (a) where in proceedings for the administration under the direction of the Court of the estate
of a deceased person the judgment directs any account of debts or other liabilities of the deceased’s estate to be taken or any inquiry for next of kin or other ascertained claimants to be made; and
(b) where in proceedings for the execution under the direction of the Court of a trust the judgment directs any such inquiry to be made,
and those rules shall, with the necessary modifications, apply where in any other proceedings the judgment directs an account of debts or other liabilities to be taken or any inquiry to be made.
Advertisements for creditors and other claimants
Rule 5. The Court may, when giving a judgment or at any stage of proceedings under a judgment, give directions for the issue of advertisements for creditors or other claimants and may fix the time within which creditors and claimants may respond.
Examination of claims
Rule 6. (1) Where an account of debts or other liabilities of the estate of a deceased person has been directed, such party as the Court may direct must—
(a) examine the claims of persons claiming to be creditors of the estate; (b) determine, so far as he is able, to which of such claims the estate is liable; and (c) at least seven clear days before the time appointed for adjudicating on claims, make a
witness statement or affidavit stating his findings and his reasons for them and listing all the other debts of the deceased which are or may still be due.
(2) Where an inquiry for next of kin or other unascertained claimants has been directed, such party as the Court may direct must—
(a) examine the claims; (b) determine, so far as he is able, which of them are valid; and (c) at least seven clear days before the time appointed for adjudicating on claims, make a
witness statement or affidavit stating his findings and his reasons for them. (3) If the personal representatives or trustees concerned are not the parties directed by the Court
to examine claims, they must join with the party directed to examine them in making the witness statement or affidavit required by this rule.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
196
Adjudication on claims
Rule 7. For the purpose of adjudicating on claims the Court may— (a) direct any claim to be investigated in such manner as it thinks fit; (b) require any claimant to attend and prove his claim or to furnish further particulars or
evidence of it; or (c) allow any claim after or without proof thereof.
Notice of adjudication
Rule 8. The Court shall give directions that there be served on every creditor whose claim or any part thereof has been allowed or disallowed, and who did not attend when the claim was disposed of, a notice informing him of that fact.
Interest on debts
Rule 9. (1) Where an account of the debts of a deceased person is directed by any judgment, then, unless the deceased’s estate is insolvent or the Court otherwise orders, interest shall be allowed—
(a) on any such debt as carries interest, at the rate it carries; and (b) on any other debt, from the date of the judgment at the rate payable on judgment debts
at that date. (2) A creditor who has established his debt in proceedings under the judgment and whose debt
does not carry interest shall be entitled to interest on his debt in accordance with paragraph (1) (b) out of any assets which may remain after satisfying the costs of the proceedings, the debts which have been established and the interest on such of those debts as by law carry interest.
(3) For the purpose of this rule “debt” includes funeral, testamentary or administration expenses and, in relation to expenses incurred after the judgment, for the reference in paragraph (1) (b) to the date of the judgment there shall be substituted a reference to the date when the expenses became payable.
Interest on legacies
Rule 10. Where an account of legacies is directed by any judgment, then, subject to any directions contained in the will or codicil in question and to any order made by the Court, interest shall be allowed on each legacy at the rate of 6 per cent. per annum beginning at the expiration of one year after the testator’s death.
Master’s order
Rule 11. (1) The result of proceedings before a Master under a judgment shall be stated in the form of an order.
(2) Subject to any direction of the Master under paragraph (3) or otherwise an order under this rule shall have effect as a final order disposing of the proceedings in which it is made.
(3) An order under this rule shall contain such directions as the Master thinks fit as to the further consideration, either at a public or private hearing, of the proceedings in which it is made.
(4) Every order made under this rule shall have immediate binding effect on the parties to the proceedings in which it is made and copies of the order shall be served on such of the parties as the Master may direct.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
197
Appeal against Master’s order
Rule 12. Subject to Order 58, rule 2, rule 1 of that Order shall apply to an order made pursuant to rule 11 above, save that—
(a) except where paragraph (e) below applies, the notice referred to in Order 58, rule 1 (2) shall state the grounds of the appeal, and must be issued within 14 days after the order is made;
(b) the hearing shall be in public unless the Court directs otherwise; (c) no fresh evidence (other than evidence as to matters which have occurred after the date of
the master’s order) shall be admitted except on special grounds; (d) the judge hearing the appeal shall have the same power to draw inferences of fact as has
the Court of Appeal under Order 59, rule 10 (3); (e) if the order is to be acted on by the Accountant—General or is an order passing a receiver’s
account, notice of appeal must be issued not later than two clear days after the making of the order and, where the order is to be acted on by the Accountant—General, a copy of it must be served on the Accountant—General as soon as practicable after it is made.
RSC ORDER 45 ENFORCEMENT OF JUDGMENTS AND ORDERS: GENERAL
Enforcement of judgment, etc., for payment of money
Rule 1. (1) Subject to the provisions of these rules, a judgment or order for the payment of money, not being a judgment or order for the payment of money into Court, may be enforced by one or more of the following means, that is to say—
(a) writ of fieri facias; (b) garnishee proceedings; (c) a charging order; (d) the appointment of a receiver; (e) in a case in which rule 5 applies, an order of committal; (f) in such a case, writ of sequestration.
(2) Subject to the provisions of these rules, a judgment or order for the payment of money into Court may be enforced by one or more of the following means, that is to say—
(a) the appointment of a receiver; (b) in a case in which rule 5 applies, an order of committal; (c) in such a case, writ of sequestration.
(3) Paragraphs (1) and (2) are without prejudice to any other remedy available to enforce such a judgment or order as is therein mentioned or to the power of a Court under the Debtors Acts 1869 and 1878(96), to commit to prison a person who makes default in paying money adjudged or ordered to be paid by him, or to the right of a person prosecuting a judgment or order for the payment of money to a person to apply under section 105 (1) of the County Courts Act 1984, to have the judgment or order enforced in a county Court, or to the enactments relating to bankruptcy or the winding up of companies.
(4) In this Order references to any writ shall be construed as including references to any further writ in aid of the first mentioned writ.
(96) 1869 c. 62; 1878 c. 54.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
198
Notice of seizure
Rule 2. When first executing a writ of fieri facias, the Sheriff or his officer shall deliver to the debtor or leave at each place where execution is levied a notice in Form No. 55 in the relevant Practice Direction informing the debtor of the execution.
Enforcement of judgment for possession of land
Rule 3. (1) Subject to the provisions of these rules, a judgment or order for the giving of possession of land may be enforced by one or more of the following means, that is to say—
(a) writ of possession; (b) in a case in which rule 5 applies, an order of committal; (c) in such a case, writ of sequestration.
(2) A writ of possession to enforce a judgment or order for the giving of possession of any land shall not be issued without the permission of the Court except where the judgment or order was given or made in mortgage proceedings to which Order 88 applies.
(3) Such permission shall not be granted unless it is shown— (a) that every person in actual possession of the whole or any part of the land has received
such notice of the proceedings as appears to the Court sufficient to enable him to apply to the Court for any relief to which he may be entitled; and
(b) if the operation of the judgment or order is suspended by subsection (2) of section 16 of the Landlord and Tenant Act, 1954(97), that the applicant has not received notice in writing from the tenant that he desires that the provisions of paragraphs (a) and (b) of that subsection shall have effect.
(4) A writ of possession may include provision for enforcing the payment of any money adjudged or ordered to be paid by the judgment or order which is to be enforced by the writ.
Enforcement of judgment for delivery of goods
Rule 4. (1) Subject to the provisions of these rules, a judgment or order for the delivery of any goods which does not give a person against whom the judgment is given or order made the alternative of paying the assessed value of the goods may be enforced by one or more of the following means, that is to say—
(a) writ of delivery to recover the goods without alternative provision for recovery of the assessed value thereof (hereafter in this rule referred to as a “writ of specific delivery”);
(b) in a case in which rule 5 applies, an order of committal; (c) in such a case, writ of sequestration.
(2) Subject to the provisions of these rules, a judgment or order for the delivery of any goods or payment of their assessed value may be enforced by one or more of the following means, that is to say—
(a) writ of delivery to recover the goods or their assessed value; (b) by order of the Court, writ of specific delivery; (c) in a case in which rule 5 applies, writ of sequestration.
An application for an order under sub-paragraph (b) shall be made in accordance with CPR Part 23, which must be served on the defendant against whom the judgment or order sought to be enforced was given or made.
(97) 1954 c. 56.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
199
(3) A writ of specific delivery, and a writ of delivery to recover any goods or their assessed value, may include provision for enforcing the payment of any money adjudged or ordered to be paid by the judgment or order which is to be enforced by the writ.
(4) A judgment or order for the payment of the assessed value of any goods may be enforced by the same means as any other judgment or order for the payment of money.
Enforcement of judgment to do or abstain from doing any act
Rule 5. (1) Where— (a) a person required by a judgment or order to do an act within a time specified in the
judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under a court order or CPR rule 2.11; or
(b) a person disobeys a judgment or order requiring him to abstain from doing an act, then, subject to the provisions of these rules, the judgment or order may be enforced by one or more of the following means, that is to say—
(i) with the permission of the Court, a writ of sequestration against the property of that person;
(ii) where that person is a body corporate, with the permission of the Court, a writ of sequestration against the property of any director or other officer of the body;
(iii) subject to the provisions of the Debtors Act 1869 and 1878(98), an order of committal against that person or, where that person is a body corporate, against any such officer.
(2) Where a judgment or order requires a person to do an act within a time therein specified and an order is subsequently made under rule 6 requiring the act to be done within some other time, references in paragraph (1) of this rule to a judgment or order shall be construed as references to the order made under rule 6.
(3) Where under any judgment or order requiring the delivery of any goods the person liable to execution has the alternative of paying the assessed value of the goods, the judgment or order shall not be enforceable by order of committal under paragraph (1), but the Court may, on the application of the person entitled to enforce the judgment or order, make an order requiring the first mentioned person to deliver the goods to the applicant within a time specified in the order, and that order may be so enforced.
Judgment, etc. requiring act to be done: order fixing time for doing it
Rule 6. (1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court shall, have power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time, as may be specified therein.
(2) Where, a judgment or order requiring a person to do an act does not specify a time within which the act is to be done, the Court shall have power subsequently to make an order requiring the act to be done within such time after service of that order, or such other time, as may be specified therein.
(3) An application for an order under this rule must be made in accordance with CPR Part 23 and the application notice must be served on the person required to do the act in question.
(98) 1869 c. 62; 1878 c. 54.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
200
Service of copy of judgment, etc., prerequisite to enforcement under r.5
Rule 7. (1) In this rule references to an order shall be construed as including references to a judgment.
(2) Subject to paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless—
(a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and
(b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.
(3) Subject as aforesaid, an order requiring a body corporate to do or abstain from doing an act shall not be enforced as mentioned in rule 5 (1)(b)(ii) or (iii) unless—
(a) a copy of the order has also been served personally on the officer against whose property permission is sought to issue a writ of sequestration or against whom an order of committal is sought; and
(b) in the case of an order requiring the body corporate to do an act, the copy has been so served before the expiration of the time within which the body was required to do the act.
(4) There must be prominently displayed on the front of the copy of an order served under this rule a warning to the person on whom the copy is served that disobedience to the order would be a contempt of court punishable by imprisonment, or (in the case of an order requiring a body corporate to do or abstain from doing an act) punishable by sequestration of the assets of the body corporate and by imprisonment of any individual responsible.
(5) With the copy of an order required to be served under this rule, being an order requiring a person to do an act, there must also be served a copy of any order or agreement under CPR rule 2.11 extending or abridging the time for doing the act and, where the first—mentioned order was made under rule 5 (3) or 6 of this Order, a copy of the previous order requiring the act to be done.
(6) An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the Court is satisfied that pending such service, the person against whom or against whose property is sought to enforce the order has had notice thereof either—
(a) by being present when the order was made; or (b) by being notified of the terms of the order, whether by telephone, telegram or otherwise.
(7) The Court may dispense with service of a copy of an order under this rule if it thinks it just to do so.
Court may order act to be done at expense of disobedient party
Rule 8. If an order of mandamus, a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, then, without prejudice to its powers under section 39 of the Act and its powers to punish the disobedient party for contempt, the Court may direct that the act required to be done may, so far as practicable, be done by the party by whom the order or judgment was obtained or some other person appointed by the Court, at the cost of the disobedient party, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and execution may issue against the disobedient party for the amount so ascertained and for costs.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
201
Execution by or against person not being a party
Rule 9. (1) Any person, not being a party to proceedings, who obtains any order or in whose favour any order is made, shall be entitled to enforce obedience to the order by the same process as if he were a party.
(2) Any person, not being a party to proceedings, against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforcing obedience to the judgment or order as if he were a party.
Conditional judgment: waiver
Rule 10. A party entitled under any judgment or order to any relief subject to the fulfilment of any condition who fails to fulfil that condition is deemed to have abandoned the benefit of the judgment or order, and, unless the Court otherwise directs, any other person interested may take any proceedings which either are warranted by the judgment or order or might have been taken if the judgment or order had not been given or made.
Matters occurring after judgment: stay of execution, etc.
Rule 11. Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks just.
Forms of writs
Rule 12. (1) A writ of fieri facias must be in such of the Forms Nos. 53 to 63 in the relevant Practice Direction as is appropriate in the particular case.
(2) A writ of delivery must be in Form No. 64 or 65 in the relevant Practice Direction, whichever is appropriate.
(3) A writ of possession must be in Form No. 66 or 66A in the relevant Practice Direction, whichever is appropriate.
(4) A writ of sequestration must be in Form No. 67 in the relevant Practice Direction.
Enforcement of judgments and orders for recovery of money, etc.
Rule 13. (1) Rule 1 (1) of this Order, with the omission of sub-paragraphs (e) and (f) thereof, and Orders 46 to 51 shall apply in relation to a judgment or order for the recovery of money as they apply in relation to a judgment or order for the payment of money.
(2) Rule 3 of this Order, with the omission of paragraphs (1)(b) and (c) thereof, and Order 47, rule 3 (2) shall apply in relation to a judgment or order for the recovery of possession of land as they apply in relation to a judgment or order for the giving or delivery of possession of land.
(3) Rule 4 of this Order, with the omission of paragraph 1 (b) and (c) and (2)(c) thereof, and Order 47, rule 3 (2) shall apply in relation to a judgment or order that a person do have a return of any goods and to a judgment or order that a person do have a return of any goods or do recover the assessed value thereof as they apply in relation to a judgment or order for the delivery of any goods and a judgment or order for the delivery of any goods or payment of the assessed value thereof respectively.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
202
Enforcement of decisions of Value Added Tax Tribunals
Rule 14. (1) An application under section 29 of the Finance Act 1985(99) for registration of a decision of a Value Added Tax Tribunal on an appeal under section 83 of the Value Added Tax Act 1994(100) shall be made by a request in writing to the head clerk of the Crown Office—
(a) exhibiting the decision or a duly authenticated copy thereof; (b) stating, so far as is known to the witness, the name and occupation and the usual or last
known address or place of business of the person against whom it is sought to enforce the decision; and
(c) stating, to the best of the information and belief of the witness, the amount which as a result of the decision is, or is recoverable as, tax from such person at the date of the application and the amount then remaining unpaid of any costs awarded to the Commissioners of Customs and Excise by the decision.
(2) Notice of the registration of a decision must be served on the person against whom it is sought to enforce the decision by delivering it to him personally or by sending it to him at his usual or last known address or place of business or in such manner as the Court may direct.
(3) There shall be kept in the Central Office under the direction of the Senior Master a register of the decisions registered under section 29 of the Finance Act 1985, and there shall be included in the register particulars of any execution issued on a decision so registered.
RSC ORDER 46 WRITS OF EXECUTION: GENERAL
Definition
Rule 1. In this Order, unless the context otherwise requires, “writ of execution” includes a writ of fieri facias, a writ of possession, a writ of delivery, a writ of sequestration and any further writ in aid of any of the aforementioned writs.
When permission to issue any writ of execution is necessary
Rule 2. (1) A writ of execution to enforce a judgment or order may not issue without the permission of the Court in the following cases, that is to say:—
(a) where six years or more have elapsed since the date of the judgment or order; (b) where any change has taken place, whether by death or otherwise, in the parties entitled
or liable to execution under the judgment or order; (c) where the judgment or order is against the assets of a deceased person coming to the hands
of his executors or administrators after the date of the judgment or order, and it is sought to issue execution against such assets;
(d) where under the judgment or order any person is entitled to a remedy subject to the fulfilment of any condition which it is alleged has been fulfilled;
(e) where any goods sought to be seized under a writ of execution are in the hands of a receiver appointed by the Court or a sequestrator.
(99) 1985 c. 54. (100)1994 c. 23.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
203
(2) Paragraph (1) is without prejudice to section 2 of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951(101), or any other enactment or rule by virtue of which a person is required to obtain the permission of the Court for the issue of a writ of execution or to proceed to execution on or otherwise to the enforcement of a judgment or order.
(3) Where the Court grants permission, whether under this rule or otherwise, for the issue of a writ of execution and the writ is not issued within one year after the date of the order granting such permission, the order shall cease to have effect, without prejudice, however, to the making of a fresh order.
Permission required for issue of writ in aid of other writ
Rule 3. A writ of execution in aid of any other writ of execution shall not issue without the permission of the Court.
Application for permission to issue writ
Rule 4. (1) An application for permission to issue a writ of execution may be made in accordance with CPR Part 23 but the application notice need not be served on the respondent unless the Court directs.
(2) Such an application must be supported by a witness statement or affidavit— (a) identifying the judgment or order to which the application relates and, if the judgment or
order is for the payment of money, stating the amount originally due thereunder and the amount due thereunder at the date the application notice is filed;
(b) stating, where the case falls within rule 2 (1)(a) the reasons for the delay in enforcing the judgment or order;
(c) stating where the case falls within rule 2 (1)(b) the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order;
(d) stating, where the case falls within rule 2 (1)(c) or (d) that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that he has refused or failed to do so;
(e) giving such other information as is necessary to satisfy the Court that the applicant is entitled to proceed to execution on the judgment or order in question and that the person against whom it is sought to issue execution is liable to execution on it.
(3) The Court hearing such application may grant permission in accordance with the application or may order that any issue or question, a decision on which is necessary to determine the rights of the parties, be tried in any manner in which any question of fact or law arising in proceedings may be tried and, in either case, may impose such terms as to costs or otherwise as it thinks just.
Application for permission to issue writ of sequestration
Rule 5. (1) Notwithstanding anything in rules 2 and 4, an application for permission to issue a writ of sequestration must be made in accordance with CPR Part 23 and be heard by a Judge.
(2) Subject to paragraph (3) the application notice, stating the grounds of the application and accompanied by a copy of the witness statement or affidavit in support of the application, must be served personally on the person against whose property it is sought to issue the writ.
(3) The Court may dispense with service of the application notice under this rule if it thinks it just to do so.
(101)1951 c. 65.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
204
(4) The judge hearing an application for permission to issue a writ of sequestration may sit in private in any case in which, if the application were for an order of committal, he would be entitled to do so by virtue of Order 52, rule 6 but, except in such a case, the application shall be heard in public.
Issue of writ of execution
Rule 6. (1) Issue of a writ of execution takes place on its being sealed by a court officer of the appropriate office.
(2) Before such a writ is issued a praecipe for its issue must be filed. (3) The praecipe must be signed by or on behalf of the solicitor of the person entitled to execution
or, if that person is acting in person, by him. (4) No such writ shall be sealed unless at the time of the tender thereof for sealing—
(a) the person tendering it produces— (i) the judgment or order on which the writ is to issue, or an office copy thereof;
(ii) where the writ may not issue without the permission of the Court, the order granting such permission or evidence of the granting of it;
(iii) where judgment on failure to acknowledge service has been entered against a State, as defined in section 14 of the State Immunity Act 1978(102), evidence that the State has been served in accordance with CPR rule 40.10 and that the judgment has taken effect; and
(b) the court officer authorised to seal it is satisfied that the period, if any, specified in the judgment or order for the payment of any money or the doing of any other act thereunder has expired.
(5) Every writ of execution shall bear the date of the day on which it is issued. (6) In this rule “the appropriate office” means—
(a) where the proceedings in which execution is to issue are in a District Registry, that Registry;
(b) where the proceedings are in the Principal Registry of the Family Division, that Registry; (c) where the proceedings are Admiralty proceedings or commercial proceedings which are
not in a District Registry, the Admiralty and Commercial Registry; (ca) where the proceedings are in the Chancery Division, Chancery Chambers; (d) in any other case, the Central Office of the Supreme Court.
Duration and renewal of writ of execution
Rule 8. (1) For the purpose of execution, a writ of execution is valid in the first instance for 12 months beginning with the date of its issue.
(2) Where a writ has not been wholly executed the Court may by order extend the validity of the writ from time to time for a period of 12 months at any one time beginning with the day on which the order is made, if an application for extension is made to the Court before the day next following that on which the writ would otherwise expire or such later day, if any, as the Court may allow.
(3) Before a writ the validity of which had been extended under paragraph (2) is executed either the writ must be sealed with the seal of the office out of which it was issued showing the date on which the order extending its validity was made or the applicant for the order must serve a notice (in Form No. 71 in the relevant Practice Direction) sealed as aforesaid, on the sheriff to whom the writ is directed informing him of the making of the order and the date thereof.
(102)1978 c. 33.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
205
(4) The priority of a writ, the validity of which has been extended under this rule, shall be determined by reference to the date on which it was originally delivered to the sheriff.
(5) The production of a writ of execution, or of such a notice as is mentioned in paragraph (3) purporting in either case to be sealed as mentioned in that paragraph, shall be evidence that the validity of that writ, or, as the case may be, of the writ referred to in that notice, has been extended under paragraph (2).
(6) If, during the validity of a writ of execution, an interpleader summons is issued in relation to an execution under that writ, the validity of the writ shall be extended until the expiry of 12 months from the conclusion of the interpleader proceedings.
Return to writ of execution
Rule 9. (1) Any party at whose instance or against whom a writ of execution was issued may serve a notice on the sheriff to whom the writ was directed requiring him, within such time as may be specified in the notice, to indorse on the writ a statement of the manner in which he has executed it and to send to that party a copy of the statement.
(2) If a sheriff on whom such a notice is served fails to comply with it the party by whom it was served may apply to the Court for an order directing the sheriff to comply with the notice.
RSC ORDER 47 WRITS OF FIERI FACIAS
Power to stay execution by writ of fieri facias
Rule 1. (1) Where a judgment is given or an order made for the payment by any person of money, and the Court is satisfied, on an application made at the time of the judgment or order, or at any time thereafter, by the judgment debtor or other party liable to execution—
(a) that there are special circumstances which render it inexpedient to enforce the judgment or order; or
(b) that the applicant is unable from any cause to pay the money, then, notwithstanding anything in rule 2 or 3, the Court may by order stay the execution of the judgment or order by writ of fieri facias either absolutely or for such period and subject to such conditions as the Court thinks fit.
(2) An application under this rule, if not made at the time the judgment is given or order made, must be made in accordance with CPR Part 23 and may be so made notwithstanding that the party liable to execution did not acknowledge service of the claim form or serve a defence or take any previous part in the proceedings.
(3) The grounds on which an application under this rule is made must be set out in the application notice and be supported by a witness statement or affidavit made by or on behalf of the applicant substantiating the said grounds and, in particular, where such application is made on the grounds of the applicant’s inability to pay, disclosing his income, the nature and value of any property of his and the amount of any other liabilities of his.
(4) The application notice and a copy of the supporting witness statement or affidavit must, not less than 4 clear days before the hearing, be served on the party entitled to enforce the judgment or order.
(5) An order staying execution under this rule may be varied or revoked by a subsequent order.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
206
Two or more writs of fieri facias
Rule 2. (1) A party entitled to enforce a judgment or order by writ of fieri facias may issue two or more such writs, directed to the sheriffs of different counties, at either the same time or different times, to enforce that judgment or order, but no more shall be levied under all those writs together than is authorised to be levied under one of them.
(2) Where a party issues two or more writs of fieri facias directed to the sheriffs of different counties to enforce the same judgment or order he must inform each sheriff of the issue of the other writ or writs.
Separate writs to enforce payment of costs, etc.
Rule 3. (1) Where only the payment of money, together with costs to be assessed in accordance with CPR Part 47 (detailed costs assessment), is adjudged or ordered, then, if when the money becomes payable under the judgment or order the costs have not been assessed, the party entitled to enforce that judgment or order may issue a writ of fieri facias to enforce payment of the sum (other than for costs) adjudged or ordered and, not less than 8 days after the issue of that writ, he may issue a second writ to enforce payment of the assessed costs.
(2) A party entitled to enforce a judgment or order for the delivery of possession of any property (other than money) may, if he so elects, issue a separate writ of fieri facias to enforce payment of any damages or costs awarded to him by that judgment or order.
No expenses of execution in certain cases
Rule 4. Where a judgment or order is for less than £600 and does not entitle the claimant to costs against the person against whom the writ of fieri facias to enforce the judgment or order is issued, the writ may not authorise the sheriff to whom it is directed to levy any fees, poundage or other costs of execution.
Writ of fieri facias de bonis ecclesiasticis, etc.
Rule 5. (1) Where it appears upon the return of any writ of fieri facias that the person against whom the writ was issued has no goods or chattels in the county of the sheriffs to whom the writ was directed but that he is the incumbent of a benefice named in the return, then, after the writ and return have been filed, the party by whom the writ of fieri facias was issued may issue a writ of fieri facias de bonis ecclesiasticis or a writ of sequestrari de bonis ecclesiasticis directed to the bishop of the diocese within which that benefice is.
(2) Any such writ must be delivered to the bishop to be executed by him. (3) Only such fees for the execution of any such writ shall be taken by or allowed to the bishop
or any diocesan officer as are for the time being authorised by or under any enactment, including any measure of the General Synod.
Order for sale otherwise than by auction
Rule 6. (1) An order of the Court under section 145 of the Bankruptcy Act 1883(103), that a sale under an execution may be made otherwise than by public auction may be made on the application of the person at whose instance the writ of execution under which the sale is to be made was issued or the person against whom that writ was issued (in this rule referred to as “the judgment debtor”) or the sheriff to whom it was issued.
(103)1883 c. 52.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
207
(2) Such an application must be made in accordance with CPR Part 23 and the application notice must contain a short statement of the grounds of the application.
(3) Where the applicant for an order under this rule is not the sheriff, the sheriff must, on the demand of the applicant, send to the applicant a list containing the name and address of every person at whose instance any other writ of execution against the goods of the judgment debtor was issued and delivered to the sheriff (in this rule referred to as “the sheriff’s list”); and where the sheriff is the applicant, he must prepare such a list.
(4) Not less than 4 clear days before the hearing the applicant must serve the application notice on each of the other persons by whom the application might have been made and on every person named in the sheriff’s list.
(5) Service of the application notice on a person named in the sheriff’s list is notice to him for the purpose of section 12 of the Bankruptcy Act 1890(104) (which provides that the Court shall not consider an application for permission to sell privately goods taken in execution until notice directed by rules of Court has been given to any other execution creditor).
(6) The applicant must produce the sheriff’s list to the Court on the hearing of the application. (7) Every person on whom the application notice was served may attend and be heard on the
hearing of the application.
RSC ORDER 48 EXAMINATION OF JUDGMENT DEBTOR, ETC.
Order for examination of judgment debtor
Rule 1. (1) Where a person has obtained a judgment or order for the payment by some other person (hereinafter referred to as “the judgment debtor”) of money, the Court may, on an application made without notice being served on any other party by the person entitled to enforce the judgment or order, order the judgment debtor or, if the judgment debtor is a body corporate, an officer thereof, to attend before such Master, Registrar, District Judge or nominated officer as the Court may appoint and be orally examined on the questions—
(a) whether any and, if so, what debts are owing to the judgment debtor; and (b) whether the judgment debtor has any and, if so, what other property or means of satisfying
the judgment or order; and the Court may also order the judgment debtor or officer to produce any books or documents in the possession of the judgment debtor relevant to the questions aforesaid at the time and place appointed for the examination.
In this paragraph “district judge” includes the district judge of a district registry or county court, and where the Court appoints such a district judge without specifying him personally, the examination may, if he thinks fit, be conducted on his behalf by a nominated officer of that registry or county court.
(2) An order under this rule must be served personally on the judgment debtor and on any officer of a body corporate ordered to attend for examination.
(3) Any difficulty arising in the course of an examination under this rule before a nominated officer, including any dispute with respect to the obligation of the person being examined to answer any question put to him, may be referred to the Senior Master or Practice Master (or, in the case of an examination at the principal registry of the Family Division, a district registry or a county court,
(104)1890 c. 71.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
208
a district judge of that registry, district registry or county court respectively) and he may determine it or give such directions for determining it as he thinks fit.
(4) In this rule “nominated officer” in relation to an examination which is to take place at the Central Office of the Supreme Court, the principal registry of the Family Division, a district registry or a county court means such of the officers of that Office, registry or county court of a grade not lower than that of higher executive officer as may be nominated for the purposes of this rule by the Senior Master, the Senior District Judge of the Family Division or the district judge of that district registry or county court respectively.
Examination of party liable to satisfy other judgment
Rule 2. Where any difficulty arises in or in connection with the enforcement of any judgment or order, other than such a judgment or order as is mentioned in rule 1, the Court may make an order under that rule for the attendance of the party liable to satisfy the judgment or order and for his examination on such questions as may be specified in the order, and that rule shall apply accordingly with the necessary modifications.
Examiner to make record of debtor’s statement
Rule 3. The officer conducting the examination shall take down, or cause to be taken down, in writing the statement made by the judgment debtor or other person at the examination, read it to him and ask him to sign it; and if he refuses the officer shall sign the statement.
RSC ORDER 49 GARNISHEE PROCEEDINGS
Attachment of debt due to judgment debtor
Rule 1. (1) Where a person (in this Order referred to as “the judgment creditor”) has obtained a judgment or order for the payment by some other person (in this Order referred to as “the judgment debtor”) of a sum of money amounting in value to at least £50, not being a judgment or order for the payment of money into court, and any other person within the jurisdiction (in this Order referred to as “the garnishee”) is indebted to the judgment debtor, the Court may, subject to the provisions of this Order and of any enactment, order the garnishee to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or so much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.
(2) An order under this rule shall in the first instance be an order to show cause, specifying the time and place for further consideration of the matter, and in the meantime attaching such debt as is mentioned in paragraph (1) or so much thereof as may be specified in the order, to answer the judgment or order mentioned in that paragraph and the costs of the garnishee proceedings.
(3) Among the conditions mentioned in section 40 of the Supreme Court Act 1981(105) (which enables any sum standing to the credit of a person in certain types of account to be attached notwithstanding that certain conditions applicable to the account in question have not been satisfied) there shall be included any condition that a receipt for money deposited in the account must be produced before any money is withdrawn.
(4) An order under this rule shall not require a payment which would reduce below £1 the amount standing in the name of the judgment debtor in an account with a building society or a credit union.
(105)1981 c. 54; section 40 was amended by the Banking Act 1987 (c. 22) section 108(1), schedule 6.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
209
Application for order
Rule 2. (1) An application for an order under rule 1 must be made in accordance with CPR Part 23 but the application notice need not be served on the judgment debtor.
(2) An application must be supported by a witness statement or affidavit— (a) stating the name and last known address of the judgment debtor; (b) identifying the judgment or order to be enforced and stating the amount of such judgment
or order and the amount remaining unpaid under it at the time of the application; (c) stating that to the best of the information or belief of the witness the garnishee (naming
him) is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the witness’s information or the grounds for his belief; and
(d) stating, where the garnishee is a deposit—taking institution having more than one place of business, the name and address of the branch at which the judgment debtor’s account is believed to be held and the number of that account or, if it be the case, that all or part of this information is not known to the witness.
Service and effect of order to show cause
Rule 3. (1) Unless the Court otherwise directs, an order under rule 1 to show cause must be served—
(a) on the garnishee personally, at least 15 days before the time appointed thereby for the further consideration of the matter; and
(b) on the judgment debtor, at least 7 days after the order has been served on the garnishee and at least 7 days before the time appointed by the order for the further consideration of the matter.
(2) Such an order shall bind in the hands of the garnishee as from the service of the order on him any debt specified in the order or so much thereof as may be so specified.
No appearance or dispute of liability by garnishee
Rule 4. (1) Where on the further consideration of the matter the garnishee does not attend or does not dispute the debt due or claimed to be due from him to the judgment debtor, the Court may make an order absolute under rule 1 against the garnishee.
(2) An order absolute under rule 1 against the garnishee may be enforced in the same manner as any other order for the payment of money.
Dispute of liability by garnishee
Rule 5. Where on the further consideration of the matter the garnishee disputes liability to pay the debt due or claimed to be due from him to the judgment debtor, the Court may summarily determine the question at issue or order that any question necessary for determining the liability of the garnishee be tried in any manner in which any question or issue in proceedings may be tried, without, if it orders trial before a Master, the need for any consent by the parties.
Claims of third persons
Rule 6. (1) If in garnishee proceedings it is brought to the notice of the Court that some other person than the judgment debtor is or claims to be entitled to the debt sought to be attached or has or claims to have a charge or lien upon it, the Court may order that person to attend before the Court and state the nature of his claim with particulars thereof.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
210
(2) After hearing any person who attends before the Court in compliance with an order under paragraph (1) the Court may summarily determine the questions at issue between the claimants or make such other order as it thinks just, including an order that any question or issue necessary for determining the validity of the claim of such other person as is mentioned in paragraph (1) be tried in such manner as is mentioned in rule 5.
Discharge of garnishee
Rule 8. Any payment made by a garnishee in compliance with an order absolute under this Order, and any execution levied against him in pursuance of such an order, shall be a valid discharge of his liability to the judgment debtor to the extent of the amount paid or levied notwithstanding that the garnishee proceedings are subsequently set aside or the judgment or order from which they arose reversed.
Money in Court
Rule 9. (1) Where money is standing to the credit of the judgment debtor in Court, the judgment creditor shall not be entitled to take garnishee proceedings in respect of that money but may apply to the Court in accordance with CPR Part 23 for an order that the money or so much thereof as is sufficient to satisfy the judgment or order sought to be enforced and the costs of the application be paid to the judgment creditor.
(2) On filing an application notice under this rule the applicant must produce the application notice at the office of the Accountant General and leave a copy at that office, and the money to which the application relates shall not be paid out of Court until after the determination of the application. If the application is dismissed, the applicant must give notice of that fact to the Accountant General.
(3) Unless the Court otherwise directs, the application notice must be served on the judgment debtor at least 7 days before the hearing.
(4) Subject to Order 75, rule 24, the Court hearing an application under this rule may make such order with respect to the money in Court as it thinks just.
Costs
Rule 10. The costs of any application for an order under rule 1 or 9, and of any proceedings arising therefrom or incidental thereto, shall, unless the Court otherwise directs, be retained by the judgment creditor out of the money recovered by him under the order and in priority to the judgment debt.
RSC ORDER 50 CHARGING ORDERS, STOP ORDERS, ETC.
Order imposing a charge on a beneficial interest
Rule 1. (1) The power to make a charging order under section 1 of the Charging Orders Act 1979(106) (referred to in this Order as “the Act”) shall be exercisable by the Court.
(2) An application by a judgment creditor for a charging order in respect of a judgment debtor’s beneficial interest must be in accordance with CPR Part 23, but the application notice need not be served on the judgment debtor, and any order made on such an application shall in the first instance
(106)1979 c. 53; section 1 was amended by the Administration of Justice Act 1982 (c. 53) sections 34(3), 37, schedule 3, Part II, paragraphs 2, 3, 6; and by the County Courts Act 1984 (c. 28), section 148(1), schedule 2, Part V.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
211
be an order, made in Form No. 75 in the relevant Practice Direction, to show cause, specifying the time and place for further consideration of the matter and imposing the charge in any event until that time.
(3) The application shall be supported by a witness statement or affidavit— (a) identifying the judgment or order to be enforced and stating the amount unpaid at the date
of the application; (b) stating the name of the judgment debtor and of any creditor of his whom the applicant
can identify; (c) giving full particulars of the subject matter of the intended charge, including, in the case of
securities other than securities in Court, the full title of the securities, their amount and the name in which they stand and, in the case of funds in Court, the number of the account; and
(d) verifying that the interest to be charged is owned beneficially by the judgment debtor. (4) Unless the Court otherwise directs, a witness statement or affidavit for the purposes of this
rule may contain statements of information or belief with the sources and grounds thereof. (5) An application may be made for a single charging order in respect of more than one judgment
or order against the debtor.
Service of notice of order to show cause
Rule 2. (1) On the making of an order to show cause, notice of the order shall, unless the Court otherwise directs, be served as follows—
(a) a copy of the order, together with a copy of the witness statement or affidavit in support, shall be served on the judgment debtor;
(b) where the order relates to securities other than securities in Court, copies of the order shall also be served—
(i) in the case of government stock for which the Bank of England keeps the Register, on the Bank of England;
(ii) in the case of government stock to which (i) does not apply, on the keeper of the register;
(iii) in the case of stock of any body incorporated within England and Wales, on that body, or, where the register is kept by the Bank of England, on the Bank of England;
(iv) in the case of stock of any body incorporated outside England and Wales or of any state or territory outside the United Kingdom, being stock registered in a register kept in England and Wales, on the keeper of the register;
(v) in the case of units of any unit trust in respect of which a register of the unit holders is kept in England and Wales, on the keeper of the register;
(c) where the order relates to a fund in Court, a copy of the order shall be served on the Accountant General at the Court Funds Office; and
(d) where the order relates to an interest under a trust, copies of the order shall be served on such of the trustees as the Court may direct.
(2) Without prejudice to the provisions of paragraph (1), the Court may, on making the order to show cause, direct the service of copies of the order, and of the witness statement or affidavit in support, on any other creditor of the judgment debtor or on any other interested person as may be appropriate in the circumstances.
(3) Documents to be served under this rule must be served at least seven days before the time appointed for the further consideration of the matter.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
212
Order made on further considerations
Rule 3. (1) On the further consideration of the matter the Court shall either make the order absolute, with or without modifications, or discharge it.
(2) Where the order is made absolute, it shall be made in Form No. 76 in the relevant practice direction, and where it is discharged, the provisions of rule 7, regarding the service of copies of the order of discharge, shall apply.
Order imposing a charge on an interest held by a trustee
Rule 4. (1) Save as provided by this rule, the provisions of rules 1, 2 and 3 shall apply to an order charging an interest held by a trustee as they apply to an order charging the judgment debtor’s beneficial interest.
(2) Instead of verifying the judgment debtor’s beneficial ownership of the interest to be charged, the witness statement or affidavit required by rule 1 (3) shall state the ground on which the application is based and shall verify the material facts.
(3) On making the order to show cause, the Court shall give directions for copies of the order, and of the witness statement or affidavit in support, to be served on such of the trustees and beneficiaries, if any, as may be appropriate.
(4) Rules 5, 6 and 7 shall apply to an order charging an interest held by a trustee as they apply to an order charging the judgment debtor’s beneficial interest, except that, where the order is made under sub—section (ii) or (iii) of section 2 (1)(b) of the Act references in those rules to “the judgment debtor” shall be references to the trustee.
(5) Forms No. 75 and 76 in the relevant Practice Direction shall be modified so as to indicate that the interest to be charged is held by the debtor as trustee or, as the case may be, that it is held by a trustee (to be named in the order) on trust for the debtor beneficially.
Effect of order in relation to securities out of Court
Rule 5. (1) No disposition by the judgment debtor of his interest in any securities to which an order to show cause relates made after the making of that order shall, so long as that order remains in force, be valid as against the judgment creditor.
(2) Until such order is discharged or made absolute, the Bank of England (or other person or body served in accordance with rule 2 (1)(b)), shall not permit any transfer of any of the securities specified in the order, or pay any dividend, interest or redemption payment in relation thereto, except with the authority of the Court, and, if it does so, shall be liable to pay the judgment creditor the value of the securities transferred or, as the case may be, the amount of the payment made or, if that value or amount is more than sufficient to satisfy the judgment or order to which such order relates, so much thereof as is sufficient to satisfy it.
(3) If the Court makes the order absolute, a copy of the order, including a stop notice as provided in Form No. 76 in the relevant Practice Direction, shall be served on the Bank of England, or on such other person or body specified in rule 2 (1)(b) as may be appropriate and, save as provided in rule 7 (5), rules 11 to 14 shall apply to such a notice as they apply to a stop notice made and served under rule 11.
(4) This rule does not apply to orders in respect of securities in Court.
Effect of order in relation to funds in Court
Rule 6. (1) Where an order to show cause has been made in relation to funds in Court (including securities in Court) and a copy thereof has been served on the Accountant General in accordance with rule 2, no disposition by the judgment debtor of any interest to which the order relates, made
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
213
after the making of that order, shall, so long as the order remains in force, be valid as against the judgment creditor.
(2) If the Court makes the order absolute, a copy of the order shall be served on the Accountant General at the Court Funds Office.
Discharge, etc., of charging order
Rule 7. (1) Subject to paragraph (2), on the application of the judgment debtor or any other person interested in the subject matter of the charge, the Court may, at any time, whether before or after the order is made absolute, discharge or vary the order on such terms (if any) as to costs or otherwise as it thinks just.
(2) Where an application is made for the discharge of a charging order in respect of the judgment debtor’s land on the ground that the judgment debt has been satisfied, the applicant shall state in his application, and the Court shall specify in its order, the title number of the land in the case of registered land, and the entry number of any relevant land charge in the case of unregistered land.
(3) The application notice seeking the discharge or variation of the order shall be served on such interested parties as the Court may direct.
(4) Where an order is made for the discharge or variation of a charging order in respect of funds in Court, a copy thereof shall be served on the Accountant General at the Court Funds Office.
(5) Where an order is made for the discharge or variation of a charging order in respect of securities other than securities in Court, a copy thereof shall be served on the Bank of England or on such other person or body specified in rule 2 (1)(b) as may be appropriate, and the service thereof shall discharge, or, as the case may be, vary, any stop notice in respect of such securities which may be in force pursuant to the original order.
Jurisdiction of Master, etc., to grant injunction
Rule 9. A master and the Admiralty Registrar and a district judge of the Family Division shall have power to grant an injunction if, and only so far as, it is ancillary or incidental to an order under rule 1, 3 or 4 and an application for an injunction under this rule may be joined with the application for the order under rule 1, 3 or 4 to which it relates.
Enforcement of charging order by sale
Rule 9A. (1) Proceedings for the enforcement of a charging order by sale of the property charged must be begun by a claim form issued out of Chancery Chambers or out of one of the Chancery District Registries.
(2) The provisions of Order 88 shall apply to all such proceedings.
Funds in Court: stop order
Rule 10. (1) The Court, on the application of any person— (a) who has a mortgage or charge on the interest of any person in funds in Court; or (b) to whom that interest has been assigned; or (c) who is a judgment creditor of the person entitled to that interest, may make an order
prohibiting the transfer, sale, delivery out, payment or other dealing with such funds, or any part thereof, or the income thereon, without notice to the applicant.
(2) An application for an order under this rule must, if there are existing proceedings, be made in accordance with CPR Part 23 by filing an application notice relating to the funds in Court, or, if there are no such proceedings, by a claim.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
214
(3) The application notice or claim form must be served on every person whose interest may be affected by the order applied for and on the Accountant-General but shall not be served on any other person.
(4) Without prejudice to the Court’s powers and discretion as to costs, the Court may order the applicant for an order under this rule to pay the costs of any party to the proceedings relating to the funds in question, or of any person interested in those funds, occasioned by the application.
Securities not in Court: stop notice
Rule 11. (1) Any person claiming to be beneficially entitled to an interest in any securities of the kinds set out in section 2 (2)(b) of the Act, other than securities in Court, who wishes to be notified of any proposed transfer or payment of those securities may avail himself of the provisions of this rule.
(2) A person claiming to be so entitled must file in Chancery Chambers or in a District Registry— (a) a witness statement or affidavit identifying the securities in question and describing his
interest therein by reference to the document under which it arises; and (b) a notice in Form No. 80 in the relevant Practice Direction (a stop notice) signed by the
witness who made the witness statement or affidavit, and annexed to it, addressed to the Bank of England or, as the case may be, the body, state, territory or unit trust concerned, and must serve an office copy of the witness statement or affidavit, and a copy of the notice sealed with the seal of Chancery Chambers or the District Registry, on the Bank or other person or body, as provided in rule 2 (1)(b).
(3) There must be indorsed on the witness statement or affidavit filed under this rule a note stating the address to which any such notice as is referred to in rule 12 is to be sent and, subject to paragraph (4), that address shall for the purpose of that rule be the address for service of the person on whose behalf the witness statement or affidavit is filed.
(4) A person on whose behalf a witness statement or affidavit under this rule is filed may change his address for service for the purpose of rule 12 by serving on the Bank of England, or other person or body, a notice to that effect, and, as from the date of service of such a notice the address stated therein shall for the purpose of that rule be the address for service of that person.
Effect of stop notice
Rule 12. Where a stop notice has been served in accordance with rule 11, then, so long as the stop notice is in force, the Bank of England or other person or body on which it is served shall not register a transfer of the securities or take any other step restrained by the stop notice until 14 days after sending notice thereof, by ordinary first class post, to the person on whose behalf the stop notice was filed, but shall not by reason only of that notice refuse to register a transfer, or to take any other step, after the expiry of that period.
Amendment of stop notice
Rule 13. If any securities are incorrectly described in a stop notice which has been filed and of which a sealed copy has been served in accordance with rule 11, an amended stop notice may be filed and served in accordance with the same procedure and shall take effect as a stop notice on the day on which the sealed copy of the amended notice is served.
Withdrawal etc. of stop notice
Rule 14. (1) The person on whose behalf a stop notice was filed may withdraw it by serving a request for its withdrawal on the Bank of England or other person or body on whom the notice was served.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
215
(2) Such request must be signed by the person on whose behalf the notice was filed and his signature must be witnessed by a practising solicitor.
(3) The Court, on the application of any person claiming to be beneficially entitled to an interest in the securities to which a stop notice relates, may by order discharge the notice.
(4) An application for an order under paragraph (3) must be made in the Chancery Division by a claim form, and the claim form must be served on the person on whose behalf a stop notice was filed.
Order prohibiting transfer, etc. of securities
Rule 15. (1) The Court, on the application of any person claiming to be beneficially entitled to an interest in any securities of the kinds set out in section 2 (2)(b) of the Act may by order prohibit the Bank of England or other person or body concerned from registering any transfer of the securities or taking any other step to which section 5 (5) of the Act applies. The order shall specify the securities to which the prohibition relates, the name in which they stand and the steps which may not be taken, and shall state whether the prohibition applies to the securities only or to the dividends or interest as well.
(2) An application for an order under this rule must be made by claim form or if made in existing proceedings in accordance with CPR Part 23 in the Chancery Division.
(3) The Court, on the application of any person claiming to be entitled to an interest in any securities to which an order under this rule relates, may vary or discharge the order on such terms (if any) as to costs or otherwise as it thinks fit.
RSC ORDER 51 RECEIVERS: EQUITABLE EXECUTION
Appointment of receiver by way of equitable execution
Rule 1. Where an application is made for the appointment of a receiver by way of equitable execution, the Court in determining whether it is just or convenient that the appointment should be made shall have regard to the amount claimed by the judgment creditor, to the amount likely to be obtained by the receiver and to the probable costs of his appointment and may direct an inquiry on any of these matters or any other matter before making the appointment.
Masters etc. may appoint receiver
Rule 2. A Master and the Admiralty Registrar and a District Judge of the Family Division shall have power to make an order for the appointment of a receiver by way of equitable execution and to grant an injunction if, and only so far as, the injunction is ancillary or incidental to such an order.
Application of rules as to appointment of receiver, etc.
Rule 3. An application for the appointment of a receiver by way of equitable execution may be made in accordance with Order 30, rule 1, and rules 2 to 6 of that Order shall apply in relation to a receiver appointed by way of equitable execution as they apply in relation to a receiver appointed for any other purpose.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
216
RSC ORDER 52 COMMITTAL
Committal for contempt of court
Rule 1. (1) The power of the High Court or Court of Appeal to punish for contempt of court may be exercised by an order of committal.
(2) Where contempt of court— (a) is committed in connection with—
(i) any proceedings before a Divisional Court of the Queen’s Bench Division; or (ii) criminal proceedings, except where the contempt is committed in the face of the court
or consists of disobedience to an order of the court or a breach of an undertaking to the court; or
(iii) proceedings in an inferior court; or (b) is committed otherwise than in connection with any proceedings, then, subject to
paragraph (4), an order of committal may be made only by a Divisional Court of the Queen’s Bench Division.
This paragraph shall not apply in relation to contempt of the Court of Appeal. (3) Where contempt of court is committed in connection with any proceedings in the High Court,
then, subject to paragraph (2), an order of committal may be made by a single judge of the Queen’s Bench Division except where the proceedings were assigned or subsequently transferred to some other Division, in which case the order may be made only by a single judge of that other Division.
The reference in this paragraph to a single judge of the Queen’s Bench Division shall, in relation to proceedings in any court the judge or judges of which are, when exercising the jurisdiction of that court, deemed by virtue of any enactment to constitute a court of the High Court, be construed as a reference to a judge of that court.
(4) Where by virtue of any enactment the High Court has power to punish or take steps for the punishment of any person charged with having done anything in relation to a court, tribunal or person which would, if it had been done in relation to the High Court, have been a contempt of that Court, an order of committal may be made by a single judge of the Queen’s Bench Division.
Application to Divisional Court
Rule 2. (1) No application to a Divisional Court for an order of committal against any person may be made unless permission to make such an application has been granted in accordance with this rule.
(2) An application for such permission must be made without notice to a Divisional Court, except in vacation when it may be made to a judge in chambers and must be supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.
(3) The applicant must give notice of the application for permission not later than the preceding day to the Crown Office and must at the same time lodge in that office copies of the statement and affidavit.
(4) Where an application for permission under this rule is refused by a judge in chambers, the applicant may make a fresh application for such permission to a Divisional Court.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
217
(5) An application made to a Divisional Court by virtue of paragraph (4) must be made within 8 days after the judge’s refusal to give permission or, if a Divisional Court does not sit within that period, on the first day on which it sits thereafter.
Application for order after leave to apply granted
Rule 3. (1) When permission has been granted under rule 2 to apply for an order of committal, the application for the order must be made to a Divisional Court and, unless the court or judge granting permission has otherwise directed, there must be at least 14 clear days between the service of the claim form and the day named therein for the hearing.
(2) Unless within 14 days after such permission was granted, the claim form is issued the permission shall lapse.
(3) Subject to paragraph 4, the claim form, accompanied by a copy of the statement and affidavit in support of the application for permission, must be served personally on the person sought to be committed.
(4) Without prejudice to the powers of the court or judge under Part 6 of the CPR, the court or judge may dispense with service under this rule if it or he thinks it just to do so.
Application to Court other than Divisional Court
Rule 4. (1) Where an application for an order of committal may be made to a court other than a Divisional Court, the application must be made by claim form or application notice and be supported by an affidavit.
(2) Subject to paragraph (3) the claim form or application notice, stating the grounds of the application and accompanied by a copy of the affidavit in support of the application, must be served personally on the person sought to be committed.
(3) Without prejudice to its powers under Part 6 of the CPR, the Court may dispense with service under this rule if it thinks it just to do so.
(4) This rule does not apply to committal applications which under rules 1(2) and 3(1) should be made to a Divisional Court but which, in vacation, have been properly made to a single judge in accordance with Order 64, rule 4.
Saving for power to commit without application for purpose
Rule 5. Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the High Court or Court of Appeal to make an order of committal of its own initiative against a person guilty of contempt of court.
Provisions as to hearing
Rule 6. (1) Subject to paragraph (2), the Court hearing an application for an order of committal may sit in private in the following cases, that is to say—
(a) where the application arises out of proceedings relating to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant;
(b) where the application arises out of proceedings relating to a person suffering or appearing to be suffering from mental disorder within the meaning of the Mental Health Act 1983(107);
(107)1983 c. 20.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
218
(c) where the application arises out of proceedings in which a secret process, discovery or invention was in issue;
(d) where it appears to the Court that in the interests of the administration of justice or for reasons of national security the application should be heard in private;
but, except as aforesaid, the application shall be heard in open court. (2) If the Court hearing an application in private by virtue of paragraph (1) decides to make an
order of committal against the person sought to be committed, it shall in open court state— (a) the name of that person, (b) in general terms the nature of the contempt of Court in respect of which the order of
committal is being made, and (c) the length of the period for which he is being committed.
(3) Except with the permission of the Court hearing an application for an order of committal, no grounds shall be relied upon at the hearing except the grounds set out in the statement under rule 2 or, as the case may be, in the claim form or application notice under rule 4.
(4) If on the hearing of the application the person sought to be committed expresses a wish to give oral evidence on his own behalf, he shall be entitled to do so.
Power to suspend execution of committal order
Rule 7. (1) The Court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify.
(2) Where execution of an order of committal is suspended by an order under paragraph (1), the applicant for the order of committal must, unless the Court otherwise directs, serve on the person against whom it was made a notice informing him of the making and terms of the order under that paragraph.
Discharge of person committed
Rule 8. (1) The Court may, on the application of any person committed to prison for any contempt of Court, discharge him.
(2) Where a person has been committed for failing to comply with a judgment or order requiring him to deliver any thing to some other person or to deposit it in Court or elsewhere, and a writ of sequestration has also been issued to enforce that judgment or order, then, if the thing is in the custody or power of the person committed, the commissioners appointed by the writ of sequestration may take possession of it as if it were the property of that person and, without prejudice to the generality of paragraph (1), the Court may discharge the person committed and may give such directions for dealing with the thing taken by the commissioners as it thinks fit.
(RSC Order 46, rule 5 contains rules relating to writs of sequestration)
Saving for other powers
Rule 9. Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an order requiring a person guilty of contempt of court, or a person punishable by virtue of any enactment in like manner as if he had been guilty of contempt of the High Court, to pay a fine or to give security for his good behaviour, and those provisions, so far as applicable, and with the necessary modifications, shall apply in relation to an application for such an order as they apply in relation to an application for an order of committal.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
219
RSC ORDER 53 APPLICATIONS FOR JUDICIAL REVIEW
Cases appropriate for application for judicial review
Rule1. (1) An application for— (a) an order of mandamus, prohibition or certiorari, or (b) an injunction under section 30 of the Act restraining a person from acting in any office
in which he is not entitled to act, shall be made by way of an application for judicial review in accordance with the provisions of this Order.
(2) An application for a declaration or an injunction (not being an injunction mentioned in paragraph (1)(b)) may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to—
(a) the nature of the matters in respect of which a remedy may be granted by way of an order of mandamus, prohibition or certiorari;
(b) the nature of the persons and bodies against whom a remedy may be granted by way of such an order; and
(c) all the circumstances of the case, it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.
Joinder of claims for relief
Rule 2. On an application for judicial review any remedy mentioned in rule 1 (1) or (2) may be claimed as an alternative or in addition to any other remedy so mentioned if it arises out of or relates to or is connected with the same matter.
Grant of leave to apply for judicial review
Rule 3. (1) No application for judicial review shall be made unless the permission of the Court has been obtained in accordance with this rule.
(2) An application for permission must be made without notice being served on any other party to a Judge by filing in the Crown Office—
(a) an application notice in Form No. 86A containing a statement of (i) the name and description of the applicant;
(ii) the relief sought and the grounds upon which it is sought; (iii) the name and address of the applicant’s solicitors (if any); and (iv) the applicant’s address for service; and
(b) written evidence verifying the facts relied on. (3) The Judge may determine the application without a hearing, unless a hearing is requested in
the notice of application, and need not sit in public; in any case, the Crown Office shall serve a copy of the Judge’s order on the applicant.
(4) Where the application for permission is refused by the Judge, or is granted on terms, the applicant may renew it by applying—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
220
(a) in any criminal cause or matter, to a Divisional Court of the Queen’s Bench Division; (b) in any other case, to a single Judge sitting in public or, if the Court so directs, to a Divisional
Court of the Queen’s Bench Division: Provided that no application for permission may be renewed in any non—criminal cause or matter in which the Judge has refused permission under paragraph (3) after a hearing.
(5) In order to renew his application for permission the applicant must, within 10 days of being served with notice of the Judge’s refusal, lodge in the Crown Office notice of his intention in Form No. 86B.
(6) The Court hearing an application for permission may allow the applicant’s statement to be amended, whether by specifying different or additional grounds or relief or otherwise, on such terms, if any, as it thinks fit.
(7) The Court shall not grant permission unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
(8) Where permission is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceeding which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for permission until the appeal is determined or the time for appealing has expired.
(9) If the Court grants permission, it may impose such terms as to costs and as to giving security as it thinks fit.
(10) Where permission to apply for judicial review is granted, then— (a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the
grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders;
(b) if any other relief is sought, the Court may at any time grant in the proceedings interim remedies in accordance with CPR Part 25.
Delay in applying for relief
Rule 4. (1) An application for permission to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.
(2) Where an order of certiorari is sought in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
(3) Paragraph (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.
Mode of applying for judicial review
Rule 5. (1) In any criminal cause or matter, where permission has been granted to make an application for judicial review, the application shall be made to a Divisional Court of the Queen’s Bench Division.
(2) In any other such cause or matter, the application shall be made to a judge sitting in open Court, unless the Court directs that it shall be made—
(a) to a Judge in private; or (b) to a Divisional Court of the Queen’s Bench Division.
(2A) An application for judicial review shall be made by the issue of a claim form.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
221
(3) The claim form must be served on all persons directly affected and where it relates to any proceedings in or before a Court and the object of the application is either to compel the Court or an officer of the Court to do any act in relation to the proceedings or to quash them or any order made therein, the claim form must also be served on the Clerk or Registrar of the Court and, where any objection to the conduct of the Judge is to be made, on the Judge.
(4) Unless the Court granting permission has otherwise directed, there must be at least 10 days between the service of the claim form and the hearing.
(5) The application must be entered for hearing within 14 days after the grant of permission. (6) Written evidence giving the names and addresses of, and the places and dates of service on,
all persons who have been served with the claim form must be filed before the application is entered for hearing and, if any person who ought to be served under this rule has not been served, the written evidence must state that fact and the reason for it; and shall be before the Court on the hearing of the application.
(7) If on the hearing of the application the Court is of opinion that any person who ought, whether under this rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the claim form may be served on that person.
Statements and evidence
Rule 6. (1) Copies of the statement in support of an application for permission under rule 3 must be served with the claim form and, subject to paragraph (2) no grounds shall be relied upon or any remedy sought at the hearing except the grounds and remedies set out in the statement.
(2) The Court may on hearing of the application for judicial review allow the applicant to amend his statement, whether by specifying different or additional grounds or otherwise, on such terms, if any, as it thinks fit and may allow further written evidence to be relied on by him.
(3) Where the applicant intends to ask to be allowed to amend his statement or to rely on further written evidence he shall give notice of his intention and of any proposed amendment to every other party.
(4) Any respondent who intends to use written evidence at the hearing shall file it in the Crown Office and give notice thereof to the applicant as soon as practicable and in any event, unless the Court otherwise directs, within 56 days after service upon him of the documents required to be served by paragraph (1).
(5) Each party to the application must supply to every other party on demand and on payment of the proper charges copies of any written evidence which he proposes to rely on at the hearing, including, in the case of the applicant, the written evidence in support of the application for permission under rule 3.
Claim for damages
Rule 7. (1) On an application for judicial review the Court may, subject to paragraph (2) award damages to the applicant if—
(a) he has included in the statement in support of his application for permission under rule 3 a claim for damages arising from any matter to which the application relates; and
(b) the Court is satisfied that, if the claim had been made in proceedings for damages begun by the applicant at the time of making his application for judicial review, he could have been awarded damages.
(2) CPR Part 16 shall apply to a statement relating to a claim for damages as it applies to a statement of case.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
222
Application for disclosure, further information, cross—examination, etc.
Rule 8. (1) Unless the Court otherwise directs, any interlocutory application in proceedings on an application for judicial review may be made to any judge or a master of the Queen’s Bench Division, notwithstanding that the application for judicial review has been made to and is to be heard by a Divisional Court.
In this paragraph “interlocutory application” includes an application for an order under CPR Part 31 or CPR Part 18 or for an order for permission to cross—examine any person who has given written evidence or for an order dismissing the proceedings by consent of the parties.
(2) In relation to an order made by a Master pursuant to paragraph (1) Order 58, rule 1, shall, where the application for judicial review 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.
(3) This rule is without prejudice to any statutory provision or rule of law restricting the making of an order against the Crown.
Hearing of application for judicial review
Rule 9. (1) On the hearing of any application for judicial review under rule 5, any person who desires to be heard in opposition to the application, and appears to the Court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with the claim form.
(2) Where the remedy sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the application he has filed in the Crown Office a copy thereof verified by witness statement or affidavit or accounts for his failure to do so to the satisfaction of the Court hearing the application.
(3) Where an order of certiorari is made in any such case as is referred to in paragraph (2) the order shall, subject to paragraph (4) direct that the proceedings shall be quashed forthwith on their removal into the Queen’s Bench Division.
(4) Where an order of certiorari is sought and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.
(5) Where the remedy sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in a claim begun by the applicant at the time of making his application for judicial review, the Court may, instead of refusing the application, order the judicial review proceedings to continue as proceedings brought under CPR Part 7 and if it does so may give any directions it considers appropriate.
Saving for person acting in obedience to mandamus
Rule 10. No action or proceeding shall be begun or prosecuted against any person in respect of anything done in obedience to an order of mandamus.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
223
Proceedings for disqualification of member of local authority
Rule 11. (1) Proceedings under section 92 of the Local Government Act 1972(108) must be begun by the issue of a claim form and brought before a Divisional Court of the Queen’s Bench Division.
(1A) Unless otherwise directed, there must be at least 10 days between the service of the claim form and the hearing.
(2) The claim form must set out the name and description of the applicant, the remedy sought and the grounds on which it is sought, and must be supported by written evidence verifying the facts relied on.
(3) Copies of any written evidence must be filed in the Crown Office before the proceedings are entered for hearing and must be supplied to any other party on demand and on payment of the proper charges.
(4) The provisions of rules 5, 6 and 9 (1) as to the persons on whom the claim form is to be served and as to the hearing shall apply, with the necessary modifications, to proceedings under the said section 92 as they apply to an application for judicial review.
Consolidation of applications
Rule 12. Where there is more than one application pending under section 30 of the Act, or section 92 of the Local Government Act 1972, against several persons in respect of the same office, and on the same grounds, the Court may order the applications to be consolidated.
Appeal from Judge’s order
Rule 13. No appeal shall lie from an order made under paragraph (3) of rule 3 on an application for leave which may be renewed under paragraph (4) of that rule.
Meaning of “Court”
Rule 14. In relation to the hearing by a Judge of an application for leave under rule 3 or of an application for judicial review, any reference in this Order to “the Court” shall, unless the context otherwise requires, be construed as a reference to the Judge.
RSC ORDER 54 APPLICATIONS FOR WRIT OF HABEAS CORPUS
Application for writ of habeas corpus ad subjiciendum
Rule 1. (1) Subject to rule 11, an application for a writ of habeas corpus ad subjiciendum shall be made to a judge in Court, except that—
(a) it shall be made to a Divisional Court of the Queen’s Bench Division if the Court so directs; (b) it may be made to a judge otherwise than in court at any time when no judge is sitting
in court; and (c) any application on behalf of a child must be made in the first instance to a judge otherwise
than in court.
(108)1972 c. 70; section 92 was amended by the Criminal Justice Act 1982 (c. 48), sections 38, 46; and by Local Government Act 1985 (c. 51), section 84, schedule 14, Part I, paragraph 12; by the Education Reform Act 1988 (c. 40), section 237(2), schedule 13, Part 1; and by the Norfolk and Suffolk Broads Act, section 21, schedule 6, paragraph 10(3).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
224
(2) An application for such writ may be made without notice being served on any other party and, subject to paragraph (3) must be supported by a witness statement or affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint.
(3) Where the person restrained is unable for any reason to make the witness statement or affidavit required by paragraph (2) the witness statement or affidavit may be made by some other person on his behalf and that witness statement or affidavit must state that the person restrained is unable to make the witness statement or affidavit himself and for what reason.
Power of Court to whom application made without notice being served on any other party
Rule 2. (1) The Court or judge to whom an application under rule 1 is made without notice being served on any other party may make an order forthwith for the writ to issue, or may—
(a) where the application is made to a judge otherwise than in court, direct the issue of a claim form seeking the writ, or that an application therefor be made by claim form to a Divisional Court or to a judge in court;
(b) where the application is made to a judge in court, adjourn the application so that notice thereof may be given, or direct that an application be made by claim form to a Divisional Court;
(c) where the application is made to a Divisional Court, adjourn the application so that notice thereof may be given.
(2) The claim form must be served on the person against whom the issue of the writ is sought and on such other persons as the Court or judge may direct, and, unless the Court or judge otherwise directs, there must be at least 8 clear days between the service of the claim form and the date named therein for the hearing of the application.
Copies of witness statement or affidavits to be supplied
Rule 3. Every party to an application under rule 1 must supply to every other party on demand and on payment of the proper charges copies of the witness statement or affidavits which he proposes to use at the hearing of the application.
Power to order release of person restrained
Rule 4. (1) Without prejudice to rule 2 (1), the Court or judge hearing an application for a writ of habeas corpus ad subjiciendum may in its or his discretion order that the person restrained be released, and such order shall be a sufficient warrant to any governor of a prison, constable or other person for the release of the person under restraint.
(2) Where such an application in criminal proceedings is heard by a judge and the judge does not order the release of the person restrained, he shall direct that the application be made by claim form to a Divisional Court of the Queen’s Bench Division.
Directions as to return to writ
Rule 5. Where a writ of habeas corpus ad subjiciendum is ordered to issue, the Court or judge by whom the order is made shall give directions as to the Court or judge before whom, and the date on which, the writ is returnable.
Service of writ and notice
Rule 6. (1) Subject to paragraphs (2) and (3), a writ of habeas corpus ad subjiciendum must be served personally on the person to whom it is directed.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
225
(2) If it is not possible to serve such writ personally, or if it is directed to a governor of a prison or other public official, it must be served by leaving it with a servant or agent of the person to whom the writ is directed at the place where the person restrained is confined or restrained.
(3) If the writ is directed to more than one person, the writ must be served in manner provided by this rule on the person first named in the writ, and copies must be served on each of the other persons in the same manner as the writ.
(4) There must be served with the writ a notice (in Form No. 90 in the relevant Practice Direction) stating the Court or judge before whom and the date on which the person restrained is to be brought and that in default of obedience proceedings for committal of the party disobeying will be taken.
Return to the writ
Rule 7. (1) The return to a writ of habeas corpus ad subjiciendum must be indorsed on or annexed to the writ and must state all the causes of the detainer of the person restrained.
(2) The return may be amended, or another return substituted therefor, by permission of the Court or judge before whom the writ is returnable.
Procedure at hearing of writ
Rule 8. When a return to a writ of habeas corpus ad subjiciendum is made, the return shall first be read, and motion then made for discharging or remanding the person restrained or amending or quashing the return, and where that person is brought up in accordance with the writ, his counsel shall be heard first, then the counsel for the Crown, and then one counsel for the person restrained in reply.
Bringing up prisoner to give evidence, etc.
Rule 9. (1) An application for a writ of habeas corpus ad testificandum or of habeas corpus ad respondendum must be made on witness statement or affidavit to a Judge sitting in private.
(2) An application for an order to bring up a prisoner, otherwise than by writ of habeas corpus, to give evidence in any proceedings, civil or criminal, before any Court, tribunal or justice, must be made on witness statement or affidavit to a Judge sitting in private.
Form of writ
Rule 10. A writ of habeas corpus must be in Form No. 89, 91 or 92 in the relevant Practice Direction, whichever is appropriate.
Applications relative to the custody, etc., of child
Rule 11. An application by a parent or guardian of a child for a writ of habeas corpus ad subjiciendum relative to the custody, care or control of the child must be made in the Family Division, and this Order shall accordingly apply to such applications with the appropriate modifications.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
226
RSC ORDER 55 APPEALS TO HIGH COURT FROM COURT,
TRIBUNAL OR PERSON: GENERAL
Application
Rule 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 the Arbitration Practice Direction 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(109), but subject to the Insolvency Rules 1986(110), 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.
Court to hear appeal
Rule 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, and (b) in any other case, by a single judge.
Bringing of appeal
Rule 3. (1) An appeal to which this Order applies shall be by way of rehearing and must be brought by notice of appeal.
(2) Every notice 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 a 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.
Service of notice of appeal and entry of appeal
Rule 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:—
(109)1986 c. 45. (110) S.I. 1986/1925.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
227
(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 who 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 of the judgment or order or 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 notice of the decision, or, in a 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.
Date of hearing of appeal
Rule 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.
Amendment of grounds of appeal, etc.
Rule 6. (1) The notice by which an appeal to which this Order applies is brought may be amended by the appellant, without permission, 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 file two copies of the notice in the office in which the appeal is entered.
(3) Except with the permission of the Court hearing any such appeal, no grounds other than those stated in the notice by which the appeal is brought or any supplementary notice under paragraph (1) may be relied upon by the appellant at the hearing; but that 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.
Interlocutory applications
Rule 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 District Judge of the Family Division, notwithstanding that the appeal is to be heard by a Divisional Court. In this paragraph “interlocutory application” includes an application for the extension of time for the service of the notice of appeal or the entry of the appeal or for the amendment of the notice of appeal.
(2) In relation to an order made by a Master or District Judge 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 sitting in private.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
228
(3) This rule is without prejudice to any statutory provision or rule of law restricting the making of an order against the Crown.
Powers of Court hearing appeal
Rule 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 witness statement or 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, a witness statement or 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 evidence, unless in the opinion of the Court substantial wrong or miscarriage has been thereby occasioned.
Right of Minister, etc., to appear and be heard
Rule 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.
RSC ORDER 56 APPEALS, ETC., TO HIGH COURT BY CASE STATED: GENERAL
Appeals from the Crown Court by case stated
Rule 1. (1) Except where they relate to affiliation proceedings or to care proceedings under the Children and Young Persons Act 1969(111) all appeals from the Crown Court by case stated shall be heard and determined—
(a) in any criminal proceedings, by a Divisional Court of the Queen’s Bench Division;
(111) 1969 c. 54.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
229
(b) in any other proceedings, by a single judge sitting in public, or if the Court so directs, by a Divisional Court of the Queen’s Bench Division.
(3) An appeal from the Crown Court by case stated shall not be entered for hearing unless and until the case and a copy of the judgment, order or decision in respect of which the case has been stated and, if that judgment, order or decision was given or made on an appeal to the Crown Court, a copy of the judgment, order or decision appealed from, have been filed in the Crown Office.
(4) No such appeal shall be entered after the expiration of 10 days from the receipt by the appellant of the case unless the delay is accounted for to the satisfaction of the Divisional Court. Notice of intention to apply for an extension of time for entry of the appeal must be served on the respondent at least 2 clear days before the day named in the notice for the hearing of the application.
(5) Where any such appeal has not been entered by reason of a default in complying with the provisions of this rule, the Crown Court may proceed as if no case had been stated.
Notice of entry of appeal
Rule 4. Within 4 days after an appeal from the Crown Court by case stated is entered for hearing, the appellant must serve notice of the entry of the appeal on the respondent.
Appeals relating to affiliation proceedings and care proceedings
Rule 4A. Appeals from the Crown Court by case stated which relate to affiliation proceedings or to care proceedings under the Children and Young Persons Act 1969 shall be heard and determined by a single Judge, or if the Court so directs, a Divisional Court of the Family Division, and the foregoing provisions of this Order shall accordingly apply to such appeals with the substitution of references to the principal registry of the Family Division for references to the Crown Office and such other modifications as may be appropriate.
Appeal from Magistrates' Court by case stated
Rule 5. (1) Except as provided by paragraph (2) all appeals from a Magistrates' Court by case stated shall be heard and determined—
(a) in any criminal proceedings, by a Divisional Court of the Queen’s Bench Division; (b) in any other proceedings, by a single Judge sitting in public or, if the Court so directs, by
a Divisional Court of the Queen’s Bench Division. (2) An appeal by way of case stated against an order or determination of a Magistrates' Court shall
be heard and determined by a single Judge or, if the Court so directs, a Divisional Court of the Family Division if the order or determination appealed against was made or given in family proceedings.
Case stated by Magistrates' Court: filing case, etc.
Rule 6. (1) Where a case has been stated by a Magistrates' Court the appellant must— (a) within 10 days after receiving the case, file it in the Crown Office or, if the appeal falls to
be heard by a Divisional Court of the Family Division, the principal registry of the Family Division; and
(b) within 4 days after filing the case as aforesaid serve on the respondent a notice of the entry of appeal together with a copy of the case.
(2) Unless the Court having jurisdiction to determine the appeal otherwise directs, the appeal shall not be heard sooner than 8 clear days after service of notice of the entry of the appeal.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
230
Case stated by Ministers, tribunal, etc.
Rule 7. (1) The jurisdiction of the High Court under any enactment to hear and determine a case stated by a Minister of the Crown, government department, tribunal or other person, or a question of law referred to that Court by such a Minister or department or a tribunal or other person by way of case stated, shall be exercised by a single Judge of the Queen’s Bench Division, except where it is otherwise provided by these rules or by or under any enactment.
(2) The jurisdiction of the High Court under any enactment to hear and determine an application for an order directing such a Minister or department or a tribunal or other person to state a case for determination by the High Court, or to refer a question of law to that Court by way of case stated, shall be exercised by the Court or Judge having jurisdiction to hear and determine that case or question except where by some other provision of these rules or by or under any enactment it is otherwise provided.
(3) This rule and rules 8 to 12 of this Order shall apply to proceedings for the determination of such a case, question or application and, in relation to any such proceedings, shall have effect subject to any provision made in relation to those proceedings by any other provision of these rules or by or under any enactment.
(4) 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.
(5) In the following rules references to a Minister shall be construed as including references to a government department, and in those rules and this rule “case” includes a special case.
Application for order to state a case
Rule 8. (1) An application to the Court for an order directing a Minister, tribunal or other person to state a case for determination by the Court or to refer a question of law to the Court by way of case stated must be made by claim form; and the persons to be served with the claim form are the Minister, secretary of the tribunal or other person, as the case may be, and every party (other than the applicant) to the proceedings to which the application relates.
(2) The claim form must state the grounds of the application, the question of law on which it is sought to have the case stated and any reasons given by the Minister, tribunal or other person for his or its refusal to state a case.
(3) The claim must be entered for hearing, and the claim form served, within 14 days after receipt by the applicant of notice of the refusal of his request to state a case.
Signing and service of case
Rule 9. (1) A case stated by a tribunal must be signed by the chairman or president of the tribunal, and a case stated by any other person must be signed by him or by a person authorised in that behalf to do so.
(2) The case must be served on the party at whose request, or as a result of whose application to the Court, the case was stated; and if a Minister, tribunal, arbitrator or other person is entitled by virtue of any enactment to state a case, or to refer a question of law by way of case stated, for determination by the High Court without request being made by any party to the proceedings before that person, the case must be served on such party to those proceedings as the Minister, tribunal, arbitrator or other person, as the case may be, thinks appropriate.
(3) When a case is served on any party under paragraph (2) notice must be given to every other party to the proceedings in question that the case has been served on the party named, and on the date specified, in the notice.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
231
Proceedings for determination of case
Rule 10. (1) Proceedings for the determination by the High Court of a case stated, or a question of law referred by way of case stated, by a Minister, tribunal, arbitrator or other person must be begun by claim formby the person on whom the case was served in accordance with rule 9 (2) or, where the case is stated without a request being made, by the Minister, secretary of the tribunal, arbitrator or other person by whom the case is stated.
(2) The applicant shall serve the claim form under paragraph (1), together with a copy of the case, on—
(a) the Minister, secretary of the tribunal, arbitrator or other person by whom the case was stated, unless that Minister, tribunal, arbitrator or other person is the applicant,
(b) every party (other than the applicant) to the proceedings in which the question of law to which the case relates arose, and
(c) any other person (other than the applicant) served with the case under rule 9 (2). (3) The claim form must set out the applicant’s contentions on the question of law to which the
case stated relates. (4) The claim must be entered for hearing, and the claim form served, within 14 days after the
case stated was served on the applicant. (5) If the applicant fails to enter the claim within the period specified in paragraph (4) then, after
obtaining a copy of the case from the Minister, tribunal, arbitrator or other person by whom the case was stated, any other party to the proceedings in which the question of law to which the case relates arose may, within 14 days after the expiration of the period so specified, begin proceedings for the determination of the case, and paragraphs (1) to (4) shall have effect accordingly with the necessary modifications. The references in this paragraph to the period specified in paragraph (4) shall be construed as including references to that period as extended by any order of the Court.
(6) The documents required to be filed in accordance with Order 57, rule 2, before entry of the claim include a copy of the case stated.
(7) Unless the Court having jurisdiction to determine the case otherwise directs, the claim shall not be heard sooner than 7 days after service of the claim form.
Amendment of case
Rule 11. The Court hearing a case stated by a Minister, tribunal, arbitrator or other person may amend the case or order it to be returned to that person for amendment, and may draw inferences of fact from the facts stated in the case.
Right of Minister to appear and be heard
Rule 12. In proceedings for the determination of a case stated, or of a question of law referred by way of case stated, the Minister, chairman or president of the tribunal, arbitrator or other person by whom the case was stated shall be entitled to appear and be heard.
Extradition
Rule 12A. (1) Rules 5 and 6 of this Order shall apply to appeals by case stated under— (a) section 7 of the Criminal Justice Act 1988(112); and
(112) 1988 c. 33.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
232
(b) section 7A of the Fugitive Offenders Act 1967(113), as they apply to appeals by case stated from a Magistrates' Court and references in those rules to appellant and respondent shall be construed as references to the requesting state and the person whose surrender is sought respectively.
(2) An application for an order under either of the sections mentioned in paragraph (1) or under Section 2A of the Backing of Warrants (Republic of Ireland) Act 1965(114) requiring a Court to state a case shall be made in accordance with rule 8 of this Order the references in that rule to a tribunal and the secretary of a tribunal being construed for this purpose as references to the Court and the Clerk of the Court respectively.
Interlocutory applications
Rule 13. (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 District Judge of the Family Division, notwithstanding that the appeal has been brought by case stated and is to be heard by a Divisional Court.
In this paragraph “interlocutory application” includes an application for an order extending the time for entry of the appeal or for service of notice of entry of the appeal.
(2) In relation to an order made by a Master or District Judge pursuant to paragraph (1), Order 58, rule 1 shall, where the application 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 sitting in private.
(3) This rule is without prejudice to any statutory provision or rule of law restricting the making of an order against the Crown.
RSC ORDER 57 DIVISIONAL COURT PROCEEDINGS, ETC.: SUPPLEMENTARY PROVISIONS
Application
Rule 1. (1) Subject to paragraph (2) this Order shall apply to— (a) any proceedings before a Divisional Court; (b) any proceedings before a single Judge under Order 52, rule 2, Order 53, Order 54, or Order
79; (c) any proceedings before a single Judge, being proceedings which consist of or relate to an
appeal to the High Court from any Court, tribunal or person including an appeal by case stated and the reference of a question of law by way of case stated.
(2) 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(115).
Entry of claims
Rule 2. (1) Every claim in proceedings to which this Order applies must be entered for hearing in the appropriate office; and entry shall be made when a copy of the claim form, and any other documents required to be lodged before entry, have been filed in that office.
(113) 1967 c. 68. (114) 1965 c. 45. Section 2A was inserted by the Criminal Justice Act 1988 (c. 33) section 1(9), schedule 1, Part II, paragraph 5 and
continues to have effect notwithstanding repeal of that section by virtue of the Extradition Act 1989 (c. 33), section 37(5). (115) 1986 c. 45.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
233
(2) The party entering the claim for hearing must file in the appropriate office copies of the proceedings for the use of the Judges.
(3) Except where it relates to proceedings in the Admiralty Court every claim entered for hearing by a Divisional Court of the Queen’s Bench Division shall be entered in the Divisional Court list.
(4) In this rule “the appropriate office” means— (a) in relation to proceedings in the Queen’s Bench Division (including the Admiralty Court)
the Crown Office or the Admiralty and Commercial Registry, as the circumstances of the case require;
(b) in relation to proceedings in the Chancery Division, Chancery Chambers; (c) in relation to proceedings in the Family Division, the principal registry of the Family
Division.
Issue, etc., of claim form
Rule 3. A claim form by which any proceedings to which this Order applies are begun must be issued—
(a) in the case of proceedings in the Family Division, out of the principal registry of the Family Division; and
(b) in the case of any other proceedings, out of the Crown Office, Chancery Chambers or the Admiralty and Commercial Registry, as the circumstances of the case require.
Filing of witness statement or affidavits and drawing up of orders
Rule 4. (1) Every witness statement or affidavit used in proceedings to which this Order applies must be filed in the Crown Office, Chancery Chambers or the Admiralty and Commercial Registry, as the circumstances of the case require.
(2) Every order made in proceedings to which this Order applies in the Queen’s Bench Division shall be drawn up in the Crown Office or the Admiralty and Commercial Registry, as the circumstances of the case require, and a copy of any order made by a Judge sitting in private in any such proceedings must be filed in that office.
Filing of claim form
Rule 5. Every claim form must be filed in the Crown Office, Chancery Chambers or the principal registry of the Family Division, as the circumstances of the case require together with the return thereto and a copy of any order made thereon.
Custody of records
Rule 6. The master of the Crown Office or the Admiralty and Commercial Registry, as the circumstances of the case require shall have the custody of the records of or relating to proceedings in the Queen’s Bench Division to which this Order applies.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
234
RSC ORDER 58 APPEALS FROM MASTERS, REGISTRARS, REFEREES AND JUDGES
Appeals from certain decisions of Masters, etc. to Judge sitting in private
Rule 1. (1) Except as provided by rule 2, an appeal shall lie to a Judge who may sit in private from any judgment, order or decision of a Master, the Admiralty Registrar or a district judge of the Family Division.
(2) The appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice of appeal.
(3) Unless the Court otherwise orders, the notice must be issued within 5 days after the judgment, order or decision appealed against was given or made and must be served within five days after issue and an appeal to which this rule applies shall not be heard sooner than two clear days after such service.
(3A) When it issues the notice of appeal, the court will fix a date for the hearing. (4) Except so far as the Court may otherwise direct, an appeal under this rule shall not operate
as a stay of the proceedings in which the appeal is brought.
Appeals from certain decisions of Masters, etc., to Court of Appeal
Rule 2. (1) An appeal shall lie to the Court of Appeal from any judgment, order or decision of a Master given or made at trial—
(a) on the hearing or determination of any cause, matter, question or issue tried before him; or (b) on an assessment of damages or of the value of goods, or an assessment of interest:
and where a judgment, order or decision of a kind referred to in paragraph (b) includes or involves a determination of any other matter, an appeal shall lie to the Court of Appeal in relation to such other matter.
(An appeal from the decision of a Master made other than at trial shall be made to the Judge in accordance with rule 1).
Appeals from District Judges
Rule 3. (1) An appeal shall lie from any judgment, order or decision of a District Judge in any proceedings in any Division in the same circumstances and, except as provided by paragraph (2) subject to the same conditions as if the judgment, order or decision were given or made by a Master or Registrar in those proceedings in that Division, and the provisions of these rules with respect to appeals shall apply accordingly.
(2) In relation to an appeal from a judgment, order or decision of a District Judge, rule 1 shall have effect subject to the modification that for the first reference therein to 5 days and the reference therein to 2 clear days there shall be substituted references to 7 days and 3 clear days respectively.
Appeals from Judge of the Technology and Construction Court
Rule 4. Subject to section 18 of the Act (which shall apply in relation to a decision of a judge of the Technology and Construction Court as if he were a judge of the High Court), an appeal shall lie to the Court of Appeal from a decision of a judge of the Technology and Construction Court as if he were a judge of the High Court.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
235
RSC ORDER 59 APPEALS TO THE COURT OF APPEAL
Application of Order to appeals
Rule 1. This Order applies, subject to the provisions of these Rules with respect to particular appeals, to every appeal to the Court of Appeal (including so far as it is applicable thereto, any appeal to that Court from a judge of the Technology and Construction Court, Master or other officer of the Supreme Court or from any tribunal from which an appeal lies to that Court under or by virtue of any enactment) not being an appeal for which other provision is made by these Rules, and references to “the court below” apply to any court, tribunal or person from which such an appeal lies.
Classes of case where permission to appeal is required
Rule1B. (1) Permission is required for every appeal except an appeal against— (a) the making of a committal order; (b) a refusal to grant habeas corpus; or (c) an order made under Section 25 of the Children Act 1989(116) (secure accommodation
orders). (2) A respondent who wishes to serve a respondent’s notice to which rule 6(1)(a) applies must
first obtain permission to cross—appeal unless the case is one to which sub-paragraphs (a), (b) or (c) of paragraph (1) applies.
(3) Permission to appeal or cross—appeal to the Court of Appeal may be given by the court below or by the Court of Appeal.
Application of Order to applications for new trial
Rule 2. This Order (except so much of rule 3 (1) as provides that an appeal shall be by way of rehearing and except rule 11 (1)) applies to an application to the Court of Appeal for a new trial or to set aside a verdict, finding or judgment after trial with or without a jury, as it applies to an appeal to that Court, and references in this Order to an appeal and to an appellant shall be construed accordingly.
Interpretation
Rule 2A. In this Order “a single judge” means a single judge of the Court of Appeal and “the registrar” means the registrar of civil appeals.
General Provisions as to Appeals
Who may exercise the powers of the Court of Appeal
Rule 2B. Subject to section 58(1) of the Act the functions of the Court of Appeal may be performed by—
(a) that Court; (b) a single judge; or (c) the registrar.
(116) 1989 c. 41.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
236
Variation of time
Rule 2C. Any date set by the court or this Order for doing any act may not be varied by the parties.
(CPR Rule 2.11 allows the parties to vary a date by written agreement except where these Rules provide otherwise or the court orders otherwise)
Notice of appeal
Rule 3. (1) An appeal to the Court of Appeal shall be by way of rehearing and must be brought by notice of appeal.
(2) Notice of appeal may be given either in respect of the whole or in respect of any specified part of the judgment or order of the court below; and every such notice must specify the grounds of the appeal and the precise form of the order which the appellant proposes to ask the Court of Appeal to make.
(3) Except with the permission of the Court of Appeal, a single judge or the registrar, the appellant shall not be entitled on the hearing of an appeal to rely on any grounds of appeal, or to apply for any relief, not specified in the notice of appeal.
(4) Every notice of appeal must specify the list of appeals to which the appellant proposes that the appeal should be assigned.
(5) A notice of appeal must be served on all parties to the proceedings in the court below who are directly affected by the appeal; and, subject to rule 8, it shall not be necessary to serve the notice on parties not so affected.
(6) No notice of appeal shall be given by a respondent in a case to which rule 6 (1) relates.
Time for appealing
Rule 4. (1) Except as otherwise provided by this Order, every notice of appeal must be served under rule 3 (5) not later than 4 weeks after the date on which the judgment or order of the court below was sealed or otherwise perfected.
(2) In the case of an appeal from a decision in respect of which a certificate has been granted under section 12 of the Administration of Justice Act 1969(117) the period referred to in paragraph (1) shall be calculated from the end of the time during which, in accordance with section 13 (5) of that Act, no appeal lies to the Court of Appeal.
(3) Where permission to appeal is granted by the Court of Appeal or the court below upon an application made within the time limited for serving notice of appeal under paragraph (1), a notice of appeal may, instead of being served within that time, be served within 7 days after the date when permission is granted.
Setting down appeal
Rule 5. (1) Within 7 days after the later of (i) the date on which service of the notice of appeal was effected, or (ii) the date on which the judgment or order of the court below was sealed or otherwise perfected, the appellant must set down his appeal by filing with the court—
(a) a copy of the said judgment or order; and (b) two copies of the notice of appeal, one of which shall be indorsed with the amount of the
fee paid, and the other indorsed with a certificate of the date of service of the notice.
(117) 1969 c. 58; section 12 was amended by the Supreme Court Act 1981 (c. 54), section 152(4), schedule 7 and by the Courts Act 1971 (c. 23), section 56(4), Schedule II, Part IV.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
237
(2) Upon the said documents being so filed, the court shall enter the appeal in the records of the Court and assign it to the appropriate list of appeals.
(3) The appropriate list of appeals for the purpose of paragraph (2) shall be decided by the registrar, without prejudice, however, to any decision of the Court of Appeal on the question whether the judgment or order appealed against is interlocutory or final.
(4) Within 4 days of receipt of notification from the office of the registrar that the appeal has been entered in the records of the Court, the appellant must give notice to that effect to all parties on whom the notice of appeal was served, specifying the Court of Appeal reference allocated to that appeal.
Respondent’s notice
Rule 6. (1) A respondent who, having been served with a notice of appeal, desires— (a) to contend on the appeal that the decision of the court below should be varied, either in
any event or in the event of the appeal being allowed in whole or in part; or (b) to contend that the decision of the court below should be affirmed on grounds other than
those relied upon by that court; must give notice to that effect, specifying the grounds of his contention and, in a case to which paragraph (a) relates, the precise form of the order which he proposes to ask the Court to make.
(2) Except with the permission of the Court of Appeal or a single judge or the registrar, a respondent shall not be entitled on the hearing of the appeal to apply for any remedy not specified in a notice under paragraph (1) or to rely, in support of any contention, upon any ground which has not been specified in such a notice or relied upon by the court below.
(3) Any notice given by a respondent under this rule (in this Order referred to as a “respondent’s notice”) must be served on the appellant, and on all parties to the proceedings in the court below who are directly affected by the contentions of the respondent, and must be served within 21 days after the service of the notice of appeal on the respondent.
(4) A party by whom a respondent’s notice is given must, within 4 days after the later of (i) the date on which the service of the respondent’s notice was effected or (ii) the date on which he was notified under rule 5 (4) that the appeal had been entered in the records of the court, file with the court two copies of the respondent’s notice, one of which shall be indorsed with the amount of the fee paid, and the other indorsed with a certificate of the date of service of such respondent’s notice.
Amendment of notice of appeal and respondent’s notice
Rule 7. (1) A notice of appeal or respondent’s notice may be amended— (a) with the permission of the Court of Appeal, a single judge or the registrar, at any time; (b) without such permission, by supplementary notice served, before the date on which the
appeal first appears in the Document List referred to in r.9 (1) on each of the parties on whom the notice to be amended was served.
(2) A party by whom a supplementary notice is served under this rule must, within 2 days after service of the notice, file two copies of the notice at the Court.
Directions of the Court as to service
Rule 8. (1) The Court of Appeal or a single judge or the registrar may in any case direct that a notice of appeal or respondent’s notice be served on any party to the proceedings in the court below on whom it has not been served, or on any person not party to those proceedings.
(2) Where a direction is given under paragraph (1) the hearing of the appeal may be postponed or adjourned for such period and on such terms as may be just and such judgment may be given and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
238
such order made on the appeal as might have been given or made if the persons served in pursuance of the direction had originally been parties.
Documents to be filed by appellant
Rule 9. Not more than 14 days after an appeal or application first appears in a list to be called “the Document List” the appellant must file documents with the court in accordance with the relevant Practice Direction.
General powers of the Court
Rule 10. (1) In relation to an appeal the Court of Appeal shall have all the powers and duties of the court below.
(2) The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by witness statement or affidavit, or by deposition taken before an examiner, but, in the case of an appeal from a judgment after trial or hearing of any proceedings on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.
(3) The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require.
(4) The powers of the Court of Appeal under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of the court below or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court of Appeal may make any order, on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties.
(5) The Court of Appeal may, in special circumstances, order that such security shall be given for the costs of an appeal as may be just.
(6) The powers of the Court of Appeal in respect of an appeal shall not be restricted by reason of any interlocutory order from which there has been no appeal.
(7) Documents impounded by order of the Court of Appeal shall not be delivered out of the custody of that Court except in compliance with an order of that Court:
Provided that where a Law Officer or the Director of Public Prosecutions makes a written request in that behalf, documents so impounded shall be delivered into his custody.
(8) Documents impounded by order of the Court of Appeal, while in the custody of that Court, shall not be inspected except by a person authorised to do so by an order of that Court.
(9) In any proceedings incidental to any cause or matter pending before the Court of Appeal, the powers conferred by this rule on the Court shall be exercisable in relation to—
(a) the grant, variation, discharge or enforcement of an injunction, or an undertaking given in lieu of an injunction; and
(b) the grant or lifting of a stay of execution or proceedings, only by the Court or a single judge.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
239
Powers of the Court as to new trials
Rule 11. (1) On the hearing of any appeal the Court of Appeal may, if it thinks fit, make any such order as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the court below.
(2) The Court of Appeal shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned.
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court of Appeal that any such wrong or miscarriage as is mentioned in paragraph (2) affects part only of the matter in controversy, or one or some only of the parties, the Court may order a new trial as to that part only, or as to that party or those parties only, and give final judgment as to the remainder.
(4) In any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate, the Court may, instead of ordering a new trial, substitute for the sum awarded by the jury such sum as appears to the Court to be proper; but except as aforesaid the Court of Appeal shall not have power to reduce or increase the damages awarded by a jury.
Evidence on appeal
Rule 12. Where any question of fact is involved in an appeal, the evidence taken in the court below bearing on the question shall, subject to any direction of the Court of Appeal, or a single judge or the registrar, be brought before that Court as follows:—
(a) in the case of evidence taken by affidavit or witness statement, by the production of a true copy of such affidavit or witness statement;
(b) in the case of evidence given orally, by a copy of so much of the transcript of the official shorthand note as is relevant or by a copy of the judge’s note, where he has intimated that in the event of an appeal his note will be sufficient, or by such other means as the Court of Appeal, or a single judge or the registrar, may direct.
Non—disclosure of payment into Court
Rule 12A. (1) Where— (a) any question on an appeal in a claim for a debt, damages or salvage relates to liability for
the debt, damages or salvage or to the amount thereof; and (b) money was paid into court under CPR Part 36 or CPR rule 37.3 in the proceedings in the
court below before judgment, neither the fact of the payment nor the amount thereof shall be stated in the notice of appeal or the respondent’s notice or in any supplementary notice or be communicated to the Court of Appeal until all such questions have been decided.
This rule shall not apply in the case of an appeal as to costs only or an appeal in a claim to which a defence of tender before claim was made.
(2) To comply with this rule the appellant must cause to be omitted from the copies of the documents filed by him under rule 9 every part thereof which states that money was paid into court in the proceedings in that court before judgment.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
240
Stay of execution, etc.
Rule 13. (1) Except so far as the court below or the Court of Appeal or a single judge may otherwise direct—
(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below;
(b) no intermediate act or proceeding shall be invalidated by an appeal. (2) On an appeal from the High Court, interest for such time as execution has been delayed by
the appeal shall be allowed unless the Court of Appeal otherwise orders.
Applications to Court of Appeal
Rule 14. (1) Unless otherwise directed, every application to the Court of Appeal, a single judge or the registrar must be made by application notice in accordance with CPR Part 23.
(2) An application to the Court of Appeal for permission to appeal shall— (a) include, where necessary, any application to extend the time for appealing; and (b) be made in writing without notice being served on any other partysetting out the reasons
why permission should be granted and, if the time for appealing has expired, the reasons why the application was not made within that time unless the court otherwise directs,
and the Court may grant or refuse the application or direct that the application be renewed in court sitting in public either with or without notice being served on any other party.
(2A) If an application under paragraph (2) is refused otherwise than after a hearing in public, the applicant shall be entitled, within 7 days after he has been given notice of the refusal, to renew his application; and such renewed application shall be heard without notice being served on any other party in public unless the court otherwise directs.
(2B) If an application under paragraph (2) is granted otherwise than after a hearing with notice, notice of the order shall be served on the party or parties affected by the appeal and any such party shall be entitled, within 7 days after service of the notice, to apply with notice to have the grant of permission reconsidered in public unless the court otherwise directs
(3) Where an application without notice being served on any other party has been refused by the Court below, an application for a similar purpose may be made to the Court of Appeal without notice being served on any other party within 7 days after the date of the refusal.
(4) Wherever under these rules an application may be made either to the court below or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticable to apply to the court below or unless the court otherwise directs.
(5) Where an application is made to the Court of Appeal with regard to arbitration proceedings before a judge—arbitrator or judge—umpire, which would, in the case of an ordinary arbitrator or umpire, be made to the High Court, the provisions of the Arbitration Practice Direction relating to such applications shall apply as appropriate.
(6) Where an application is made to the Court of Appeal under section 1 (5) of the Arbitration Act 1979(118) (including any application for permission) notice thereof must be served on the judge —arbitrator or judge—umpire and on any other party to the reference.
(7) An application, not being an application for permission to appeal, which may be heard by a single judge may be heard in private.
(8) An application which may under the provisions of this Order be heard by the registrar may be heard in private.
(118) 1979 c. 42.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
241
(9) The registrar may refer to a single judge any matter which he thinks should properly be decided by a single judge, and, following such reference, the judge may either dispose of the matter or refer it back to the registrar with such direction as the single judge thinks fit.
(10) A single judge may refer to the Court of Appeal any matter which he thinks should properly be decided by that Court, and, following such reference, that Court may either dispose of the matter or refer it back to a single judge or the registrar, with such directions as that Court thinks fit.
(11) An appeal shall lie to a single judge from any determination made by the registrar and shall be brought by way of fresh application made within 10 days of the determination appealed against.
(12) An appeal shall lie to the Court of Appeal from any determination by a single judge, not being the determination of an application for permission to appeal, and shall be brought by way of fresh application made within 10 days of the determination appealed against.
Provided that an appeal shall not lie to the Court of Appeal without the permission of that Court in respect of a determination of the registrar which has been reviewed by a single judge.
Extension of time
Rule 15. (1) The period for serving notice of appeal under rule 4 or for making application without notice being served on any other party under rule 14 (3) may be extended or abridged by the court below on application made before the expiration of that period.
Special Provisions as to Particular Appeals
Appeal against decree nisi
Rule 16. (1) The following provisions of this rule shall apply to any appeal to the Court of Appeal in a matrimonial cause against a decree nisi of divorce or nullity of marriage.
(2) The period of 4 weeks specified in rule 4 shall be calculated from the date on which the decree was pronounced and rule 15 shall not apply in relation to that period.
(2A) The notice of appeal shall be served on the appropriate district judge as well as on the party or parties required to be served under rule 3.
(3) The appellant must, within the period mentioned in paragraph (2) and after service of the notice of appeal, file with the Court a copy of that decree and two copies of the notice of appeal (one of which shall be indorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice); and the appeal shall not be competent unless this paragraph has been complied with.
(4) For the purposes of rule 5 the leaving of the said copies shall be sufficient for the setting down of the appeal and rule 5 (1) shall not apply.
(5) A party who intends to apply without notice being served on any other party to the Court of Appeal to extend the period referred to in paragraphs (2) and (3) must give notice of his intention to the appropriate district judge before the application is made; and where any order is made by the Court of Appeal extending the said period, it shall be the duty of the registrar of civil appeals forthwith to give notice of the making of the order and of the terms thereof to the appropriate district judge.
(6) In this rule “the appropriate district judge” means— (a) in relation to a cause pending in a county court, the district judge of that court, (b) in relation to a cause proceeding in the principal registry of the Family Division, the senior
district judge of that Division, and (c) in relation to a cause proceeding in a district registry, the district judge of that registry.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
242
Appeal against order for revocation of patent
Rule 17. (1) The following provisions of this rule shall apply to any appeal to the Court of Appeal from an order for the revocation of a patent.
(2) The notice of appeal must be served on the Comptroller—General of Patents, Designs and Trade Marks (in this rule referred to as “the Comptroller”) as well as on the party or parties required to be served under rule 3.
(3) If, at any time before the appeal comes on for hearing, the respondent decides not to appear on the appeal or not to oppose it, he must forthwith serve notice of his decision on the Comptroller and the appellant, and any such notice served on the Comptroller must be accompanied by a copy of the petition or of the statements of case in the claim and the written evidence filed therein.
(4) The Comptroller must, within 14 days after receiving notice of the respondent’s decision, serve on the appellant a notice stating whether or not he intends to appear on the appeal.
(5) The Comptroller may appear and be heard in opposition to the appeal— (a) in any case where he has given notice under paragraph (4) of his intention to appear, and (b) in any other case (including, in particular, a case where the respondent withdraws his
opposition to the appeal during the hearing) if the Court of Appeal so directs or allows. (6) The Court of Appeal may make such orders for the postponement or adjournment of the
hearing of the appeal as may appear to the Court necessary for the purpose of giving effect to the foregoing provisions of this rule.
Appeal from Patents Court on appeal from Comptroller
Rule 18. In the case of an appeal to the Court of Appeal from a decision of the Patents Court on an appeal from a decision of the Comptroller—General of Patents, Designs and Trade Marks the notice of appeal must be served on the Comptroller—General as well as on the party or parties required to be served under rule 3.
Appeal from county court
Rule 19. (1) The following provisions of this rule shall apply to any appeal to the Court of Appeal from a county court other than an appeal against a decree nisi of divorce or nullity of marriage.
(2) The appellant must, within the time specified in rule 4, serve the notice of appeal on the district judge of the county court as well as on the party or parties required to be served under rule 3.
(3) In relation to the appeal rule 4 (1) and rule 5 (1) shall have effect as if for the words “the date on which the judgment or order of the court below was sealed or otherwise perfected” there were substituted the words “the date on which the court below gave its decision.”
(5) Rule 13 (1)(a) shall not apply, but the appeal shall not operate as a stay of execution or of proceedings in the county court unless the judge of that court or the Court of Appeal so orders or unless, within 10 days after the date of the judgment or order appealed against, the appellant deposits a sum fixed by the judge not exceeding the amount of the money or the value of the property affected by the judgment or order, or gives such security for the said sum as the judge may direct.
(6) In the case of an appeal to the Court of Appeal from the decision of a county court on the hearing of an appeal from a registration officer under section 56 of the Representation of the People Act, 1983(119), notice of the decision of the Court of Appeal shall be given by the registrar of civil appeals to the registration officer, specifying every alteration to be made in pursuance of the decision
(119) 1983 c. 2; section 56 was amended by the Representation of the People Act 1985 (c. 50.) sections 11, 24, 28(1), schedule 2, Part I, paragraph 1; schedule 4, paragraph 16 and schedule 5.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
243
in the register or list concerned, and a copy of every such notice shall be sent to the district judge of the county court.
(7) In relation to any proceedings in the principal registry of the Family Division which by virtue of any statutory provision are treated as pending in a county court, paragraphs (1) to (5) shall have effect with the necessary modifications as if the principal registry were a county court.
Appeals in cases of contempt of court
Rule 20. (1) In the case of an appeal to the Court of Appeal under section 13 of the Administration of Justice Act 1960(120), the notice of appeal must be served on the court from whose order or decision the appeal is brought as well as on the party or parties required to be served under rule 3. This paragraph shall not apply in relation to an appeal to which rule 19 applies.
(2) Where, in the case of an appeal under the said section 13 to the Court of Appeal or to the House of Lords from the Court of Appeal, the appellant is in custody, the Court of Appeal may order his release on his giving security (whether by recognisance, with or without sureties, or otherwise and for such reasonable sum as that Court may fix) for his appearance within 10 days after the judgment of the Court of Appeal or, as the case may be, of the House of Lords on the appeal shall have been given, before the court from whose order or decision the appeal is brought unless the order or decision is reversed by that judgment.
(3) An application for the release of a person under paragraph (2) pending an appeal to the Court of Appeal or House of Lords under the said section 13 must be made by in accordance with CPR Part 23, and the application notice must, at least 24 hours before the day named therein for the hearing, be served on the court from whose order or decision the appeal is brought and on all parties to the proceedings in that court who are directly affected by the appeal.
(4) Order 79, rule 9 (6), (6A), (6B) and (8) shall apply in relation to the grant of bail under this rule by the Court of Appeal in a case of criminal contempt of court as they apply in relation to the grant of bail in criminal proceedings by the High Court, but with the substitution for references to a judge sitting in private of references to the Court of Appeal and for references to the defendant of references to the appellant.
(5) When granting bail under this Rule in a case of civil contempt of court, the Court of Appeal may order that the recognisance or other security to be given by the appellant or the recognisance of any surety shall be given before any person authorised by virtue of section 119 (1) of the Magistrates' Courts Act 1980(121) to take a recognisance where a magistrates' court having power to take it has, instead of taking it, fixed the amount in which the principal and his sureties, if any, are to be bound. An order by the Court of Appeal granting bail as aforesaid must be in Form 98 in the relevant Practice Direction with the necessary adaptations.
(6) Where in pursuance of an order of the Court of Appeal under paragraph (5) of this rule a recognisance is entered into or other security given before any person, it shall be the duty of that person to cause the recognisance of the appellant or any surety or, as the case may be, a statement of the other security given, to be transmitted forthwith to the clerk of the court which committed the appellant; and a copy of such recognisance or statement shall at the same time be sent to the governor or keeper of the prison or other place of detention in which the appellant is detained, unless the recognisance or security was given before such governor or keeper.
(8) The powers conferred on the Court of Appeal by paragraphs (2), (4), (5) and (6) of this rule may be exercised by a single judge.
(120)1960 c. 65; section 13 was amended by the Courts Act 1971 (c. 23), section 56, schedule 8, Part II, paragraph 40(1) and (2); schedule 11, Part II; by the County Courts Act 1984 (c. 28), section 148(1), schedule 2, Part V, paragraph 25; by the Magistrates' Courts Act 1980 (c. 43), section 154, schedule 7, paragraph 37; by the Criminal Appeal Act 1968 (c. 19), Part 1; and by the Supreme Court Act 1981 (c. 54), section 152(4), schedule 7.
(121)1980 c. 43.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
244
Appeals from Social Security Commissioners
Rule 21. (1) This rule shall apply to any appeal to the Court of Appeal under section 14 of the Social Security Act 1980 (appeal from the decision of a Commissioner on a question of law, with the permission of the Commissioner or of the Court of Appeal).
(2) The notice of appeal must be served within 6 weeks from the date on which notice of the Commissioner’s grant or refusal of permission was given in writing to the appellant and must be served on the Secretary of State and any person appointed by him to proceed with a claim as well as on the party or parties required to be served under rule 3.
(3) The provisions of rule 4 (3) apply to this rule, with the substitution for the reference in rule 4 (3) to paragraph (1) of a reference to paragraph (2).
Appeals from Value Added Tax Tribunals
Rule 22. (1) An application to the Court of Appeal for permission to appeal from a value added tax tribunal direct to that Court under section 26 of the Finance Act 1985(122) shall be made within 28 days from the date on which the tribunal certifies that its decision involves a point of law relating wholly or mainly to the construction of an enactment or of a statutory instrument, or of any of the Community Treaties or any Community Instrument, which has been fully argued before it and fully considered by it.
(2) Such an application shall be made by the parties jointly by filing a copy of the decision, endorsed with the certificate of the tribunal and a statement of the grounds of the application, with the court, and shall be determined by a single judge of the Court of Appeal, who may do so without a hearing.
(3) In the case of all applications, the Court shall notify the parties of the determination of the single judge, and
(a) where permission to appeal to the Court of Appeal is granted, the appellant shall within 14 days after such notification serve the notice of appeal on the chairman of the tribunal as well as on the party or parties required to be served by rule 3;
(b) where permission to appeal to the Court of Appeal is refused, the period specified in Order 55, rule 4 (2) for appealing to the High Court shall be calculated from the date of notification of the refusal.
Dismissal of patient’s appeal by consent
Rule 23. Where the receiver or other person authorised under Part VII of the Mental Health Act 1983(123) to conduct legal proceedings in the name of the patient or on his behalf has also been authorised by the Court of Protection under its seal to consent to the dismissal of an appeal to the Court of Appeal by that patient, the appeal may be dismissed by consent without a hearing.
Appeals from Immigration Appeals Tribunal
Rule 24. (1) This rule shall apply to any appeal to the Court of Appeal under section 9 of the Asylum and Immigration Appeals Act 1993(124) (appeal on a question of law from a final determination of an Immigration Appeals Tribunal, with the permission of the Immigration Appeals Tribunal or the Court of Appeal).
(122)1985 c. 54, (123)1983 c. 20. (124)1993 c. 23.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
245
(2) Rule 4 (1) shall have effect as if for the words “the date on which the judgment or order of the court below was sealed or otherwise perfected” there were substituted the words “the date of the tribunal’s written decision to grant or refuse permission to appeal”.
(3) The notice of appeal must be served on the other party or parties to the proceedings before the tribunal, and on the chairman.
(4) Rule 9 shall have effect as if— (a) for paragraph (1)(e) there were substituted a reference to the following documents—
(i) any note recording the original decision or action of the immigration officer or of the Secretary of State, notes of interviews, any documents referred to in the original decision and any explanatory statement;
(ii) the notice of appeal to the Adjudicator or Special Adjudicator; (iii) the written decision of the Adjudicator or Special Adjudicator; and (iv) the notice of appeal to the tribunal;
(b) for paragraph (1)(f) there were substituted a reference to the written notice or decision and reasons for that decision given to the parties by the tribunal;
(c) for paragraph (1)(g) there were substituted a reference to any summary or record taken by the tribunal of the proceedings before it.
(5) Rule 13 shall not apply.
Appeals from Special Commissioners
Rule 25. (1) An application to the Court of Appeal for permission to appeal from the Special Commissioners direct to that court under section 56A of the Taxes Management Act 1970(125) shall be made within 28 days from the date on which the Special Commissioners certify that their decision involves a point of law relating wholly or mainly to the construction of an enactment which was fully argued before them and fully considered by them.
(2) Such an application shall be made by the parties jointly filing a copy of the decision, endorsed with the certificate of the Special Commissioners, and a statement of the grounds of the application with the court. The application shall be determined by a single judge of the Court of Appeal, who may make his determination without a hearing.
(3) The Court shall notify the parties of the determination of the single judge, and, (a) where permission to appeal to the Court of Appeal is granted, the applicant shall within
14 days after such notification serve the notice of appeal on the Clerk to the Special Commissioners as well as on all parties directly affected by the proceedings before the Special Commissioners;
(b) where permission to appeal to the Court of Appeal is refused, the period specified in Order 55, rule 4 (2) for appealing to the High Court shall be calculated from the date of notification of the refusal.
(125)1970 c. 9.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
246
RSC ORDER 60 APPEALS TO COURT OF APPEAL FROM THE RESTRICTIVE PRACTICES COURT
Appeal to be brought by notice of appeal
Rule 1. An appeal to the Court of Appeal from the Restrictive Practices Court under the Restrictive Practices Court Act 1976(126) must be brought by notice of appeal, and the notice of appeal must state any question of law and, in the case of proceedings under Part III of the Fair Trading Act 1973(127), any question of fact on which the appeal is brought together in each case with the appellant’s contentions thereon.
Service of notice of appeal
Rule 2. (1) Within 28 days after the appellant receives a copy of the judgment constituting the case stated by the Restrictive Practices Court or within 28 days of the date on which permission to appeal to the Court of Appeal was granted, he must serve the notice of appeal and a copy of the judgment on every other party to the proceedings before that Court and must serve the notice of appeal on that Court.
(2) Where the appellant applies to the said Court for the Court’s judgment to be amplified or amended—
(a) he shall be deemed for the purpose of paragraph (1) to have received a copy of the judgment on the date on which he receives a copy of the order made on his application, and
(b) the judgment constituting the case stated shall be the judgment with such amplifications or amendments, if any, as may be specified in that order.
Entry, etc. of appeal
Rule 3. (1) Within 7 days after service of the notice of appeal, the appellant must file the judgment constituting the case and two copies of the notice with the Court of Appeal and Order 59, rule 5 shall apply subject to any necessary modifications.
(2) The office of the Court of Appeal shall notify the Restrictive Practices Court of the decision of the Court of Appeal on the appeal and of any directions given by the Court of Appeal thereon.
Powers of Court of Appeal
Rule 4. The Court of Appeal shall have power to draw inferences of fact from the facts set forth in the judgment of the Restrictive Practices Court constituting the case.
(126)1976 c. 33. (127)1973 c. 41.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
247
RSC ORDER 61 APPEALS FROM TRIBUNALS TO COURT OF APPEAL BY CASE STATED
Statement of case by Lands Tribunal
Rule 1. (1) The time within which a person aggrieved by a decision of the Lands Tribunal as being erroneous in point of law may under section 3 (4) of the Lands Tribunal Act 1949(128), or any other enactment require the Tribunal to state a case for the decision of the Court of Appeal shall be 4 weeks from the date of the decision, and the application for the statement of the case must be made to the registrar of the Tribunal in writing.
(2) A case stated by the Tribunal must state the facts on which the decision was based and the decision of the Tribunal and must be signed by the member or members of the Tribunal by whom it was given.
(3) The case must be stated as soon as may be after the application therefor is made and must be sent by post to the applicant.
(4) Where the decision of the Lands Tribunal in respect of which a case is stated states all the relevant facts found by the Tribunal and indicates the questions of law on which the decision of the Court of Appeal is sought, a copy of the decision signed by the person who presided at the hearing shall be annexed to the case, and the facts so found and the questions of law to be decided shall be sufficiently stated in the case by referring to the statement thereof in the decision.
Statement of case by other tribunals
Rule 2. (1) Where any tribunal is empowered or may be required to state a case on a question of law for determination by the Court of Appeal, any party to the proceedings who is aggrieved by the tribunal’s refusal to state a case may apply to the Court of Appeal or a single judge of that Court for an order requiring the tribunal to state a case.
(2) An application under this rule must be made in accordance with CPR Part 23 and the application notice, stating in general terms the grounds of the application, together with the question of law on which it is desired that a case shall be stated and any reasons given by the tribunal for its refusal, must within 28 days after the refusal, be served on the clerk or registrar of the tribunal and on every other party to the proceedings before the tribunal.
(3) Within 7 days after service of the application notice, the applicant must file two copies of the application notice with the Court of Appeal.
(4) Where a tribunal is ordered under this rule to state a case, the tribunal must, within such period as may be specified in the order, state a case, stating the facts on which the decision of the tribunal was based and the decision, sign it and cause it to be sent by post to the applicant.
(5) Rule 1 (4) shall apply in relation to a case stated by a tribunal other than the Lands Tribunal as it applies in relation to a case stated by that Tribunal.
(6) In this rule, references to a tribunal other than the Lands Tribunal include references to a judge of the Commercial Court acting as an arbitrator or umpire under section 4 of the Administration of Justice Act 1970(129).
(128)1949 c. 42; section 3 was amended by the Land Compensation Act 1961 (c. 33), section 40(3), schedule 5; and by the Local Government, Planning and Land Act 1980 (c. 65), section 193, schedule 33, paragraph 3.
(129)1970 c. 31.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
248
Proceedings on case stated
Rule 3. (A1) An application for permission to appeal to the Court of Appeal from any tribunal to which this Order applies may be combined with an application to the tribunal to state a case.
(A2) An application for permission to appeal may not be made to the Court of Appeal until the tribunal has stated a case.
(1) The party at whose instance a case has been stated by any tribunal to which this Order applies must, within 21 days after the date on which permission to appeal to the Court of Appeal was granted —
(a) serve on every other party to the proceedings before the tribunal a copy of the case, together with a notice of appeal setting out his contentions on the question of law; and
(b) serve a copy of the notice on the clerk or registrar of the tribunal. (2) Within 7 days after service of the notice of appeal, the said party must file the case, and
two copies of the notice with the Court of Appeal and Order 59, rule 5 shall apply subject to any necessary modifications.
(3) Where any enactment under which the case is stated provides that a Minister or government department shall have a right to be heard in the proceedings on the case, a copy of the case and of the notice of appeal served under paragraph (1) must be served on that Minister or department.
(4) On the hearing of the case, the Court of Appeal may amend the case or order it to be sent back to the tribunal for amendment.
(5) Order 59 shall, so far as applicable, apply, in relation to a case stated by a tribunal to which this Order applies.
(6) The office of the Court of Appeal shall notify the clerk or registrar of the tribunal of the decision of the Court of Appeal on the case and of any directions given by that Court thereon.
RSC ORDER 62 COSTS
APPENDIX 3
Fixed Costs The scale of costs set out in this Appendix shall apply in the cases to which the Appendix refers.
PART II.
Costs on judgment without trial for possession of land
1. (1) Where the claim is for the possession of land, and the claimant obtains judgment— (a) under CPR Part 12 (default judgment); or (c) under CPR Part 24 (summary judgment),
for possession of the land and costs, then, subject to sub-paragraph (2), there shall be allowed the costs prescribed by paragraph 2 of this Part of this Appendix.
(2) Where the claimant is also entitled under the judgment to damages to be assessed, or where the plaintiff claims any remedy of the nature specified in Order 88, rule 1 (mortgage claims), this Part of this Appendix shall not apply.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
249
2. The costs to be allowed under this Part of this Appendix shall be £143.75, together with any court fee, and additional costs where appropriate set out the Table below.
Additional Costs
B. Additional Costs
Amount to be allowed £ (1) Where there is more than one defendant,
in respect of each additional defendant served £13.75
(2) Where service by an alternative method is ordered and effected, in respect of each defendant served
£53.25
(3) Where service out of the jurisdiction is ordered and effected, in the case of service—
(a) in Scotland, Northern Ireland, the Isle of Man or the Channel Islands
£68.25
(b) (b) in any other place out of the jurisdiction
£77.00
(4) In the case of default judgment under CPR Part 12 or summary judgment under CPR Part 24 the claimant makes an affidavit of service for the purpose of a judgment where the defendant failed to respond to the claim form (the allowance to include the search fee)
£20.50
(5) In the case of summary judgment under CPR Part 24 where an affidavit of service of the Part 23 application is required
£20.50
(6) In the case of summary judgment under CPR Part 24 for each adjournment of the application
£20.50
PART III Miscellaneous
This Part shows the amount to be allowed in respect of enforcement costs.
2. Where a certificate in respect of money provisions contained in a judgment is registered in the High Court in the Register of United Kingdom judgments under Schedule 6 to the Civil Jurisdiction and Judgments Act 1982(130), there shall be allowed—
Costs of registration ... ...
£39.00
(130)1982 c. 27.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
250
2A. Where costs are allowed under the following paragraphs of this Part, the appropriate court fees shall be allowed in addition.
3. Where, upon the application of any person who has obtained a judgment or order against a debtor for the recovery or payment of money, a garnishee order is made under Order 49 rule 1, against a garnishee attaching debts due or accruing due from the debtor, the following costs shall be allowed—
(a) to the garnishee to be deducted by him from any debt due by him as aforesaid before payment to the applicant ... ...
£23.00
(b) (b) to the applicant, to be retained, unless the Court otherwise orders, out of the money recovered by him under the garnishee order and in priority to the amount of the debt owing to him under the judgment or order—
(i) Basic costs If the amount recovered by the applicant from the garnishee is— less than £150 ... ...
one half of the amount recovered
not less than £150 ... ... £98.50
(ii) Additional costs Where the garnishee fails to attend the hearing of the application and an affidavit of service is required ... ...
£18.00
4. Where a charging order is granted and made absolute there shall be allowed—
Basic costs ... ...
£110.00
Additional costs where an affidavit of service is required ... ...
£18.00
together with such reasonable disbursements in respect of search fees and the registration of the order as the Court may allow.
5. Where leave is given under Order 45, rule 3, to enforce a judgment or order for the giving of possession of land by writ of possession, if the costs are allowed on the judgment or order there shall be allowed the following costs, which shall be added to the judgment or order—
Basic costs ... ...
£42.50
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
251
Where notice of the proceedings has been given to more than one person, in respect of each additional person ... ...
£2.75
6. Where a writ of execution within the meaning of Order 46, rule 1, is issued against any party, there shall be allowed—
Costs of issuing execution ... ...
£51.75
RSC ORDER 64 SITTINGS, VACATIONS AND OFFICE HOURS
Divisional Court business during vacation
Rule 4. Proceedings which require to be immediately or promptly heard and which by virtue of the following provisions must be brought in a Divisional Court may, in vacation, be brought before a single judge:
(a) Order 52, rules 1 (2) and 3 (1); (b) Order 53, rules 3 (4)(a) and 5 (1); (c) Order 55, rule 2 (a); (d) Order 56, rule 1 (1)(a).
RSC ORDER 69 SERVICE OF FOREIGN PROCESS
Definitions
Rule 1. In this Order— “a convention country” means a foreign country in relation to which there subsists a civil procedure convention providing for service in that country of process of the High Court, and includes a country which is a party to the Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters signed at the Hague on 15 November 1965; “officer of the county court” means any clerk or bailiff in the service of a county court; “process” includes a citation; “process server” means the process server appointed under rule 4 or his authorised agent;
Applications
Rule 2. This Order applies to the service on a person in England or Wales of any process in connection with civil or commercial proceedings in a foreign court or tribunal where the Senior Master receives a written request for service—
(a) from Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs, with a recommendation by him that service should be effected; or
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
252
(b) where the foreign court or tribunal is in a convention country, from a consular or other authority of that country.
Service of process
Rule 3. (1) The request shall be accompanied by a translation thereof in English, two copies of the process and, unless the foreign court or tribunal certifies that the person to be served understands the language of the process, two copies of a translation thereof.
(2) Subject to paragraphs (3) and (5) and to any enactment providing for the manner of service of documents on corporate bodies, the process shall be served by the process server’s leaving a copy of the process and a copy of the translation or certificate, as the case may be, with the person to be served.
(3) The provisions of CPR rule 6.2(1)(c) and CPR rule 6.7 regarding service by leaving at a place specified in CPR rule 6.5, shall apply to the service of foreign process as they apply to the service of claim form, except that service may be proved by a witness statement or affidavit or by a certificate or report in such form as the Senior Master may direct.
(4) The process server shall send to the Senior Master a copy of the process and a witness statement or affidavit, certificate or report proving due service of process or stating the reason why service could not be effected, as the case may be, and shall, if the Court so directs, specify the costs incurred in effecting or attempting to effect service.
(5) CPR rule 6.8 (Service by an alternative method) shall apply to the service of foreign process as it applies to the service of claim forms, except that the Senior Master may make an order for alternative service of foreign process on the basis of the process server’s witness statement or affidavit, certificate or report, without an application being made to him in that behalf.
(6) The Senior Master shall send a certificate, together with a copy of the process, to the consular or other authority or the Secretary of State, as the case may be, stating—
(i) when and how service was effected or the reason why service could not be effected, as the case may be;
(ii) where appropriate, the amount certified by the costs judge to be the costs of effecting or attempting to effect service.
(7) The certificate under paragraph (6) shall be sealed with the seal of the Supreme Court for use out of the jurisdiction.
Appointment of process server
Rule 4. The Lord Chancellor may appoint a process server for the purposes of this Order.
RSC ORDER 70 OBTAINING EVIDENCE FOR FOREIGN COURTS, ETC.
Interpretation and exercise of jurisdiction
Rule 1. (1) In this Order “the Act of 1975” means the Evidence (Proceedings in Other Jurisdictions) Act 1975(131) and expressions used in this Order which are used in that Act shall have the same meaning as in that Act.
(131)1975 c. 34.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
253
(2) The power of the High Court to make an order under section 2 of the Act of 1975 may be exercised by a master of the Queen’s Bench Division.
Application for order
Rule 2. (1) Subject to paragraph (3) and rule 3 an application for an order under the Act of 1975 must be made without notice being served on any other party and must be supported by witness statement or affidavit.
(2) There shall be exhibited to the witness statement or affidavit the request in pursuance of which the application is made, and if the request is not in the English language, a translation thereof in that language.
(3) Where on an application under section 1 of the Act of 1975 as applied by section 92 of the Patents Act 1977(132) an order is made for the examination of witnesses the Court may allow an officer of the European Patent Office to attend the examination and examine the witnesses or request the Court or the examiner before whom the examination takes place to put specified questions to them.
Application by Treasury Solicitor in certain cases
Rule 3. Where a request (a) is received by the Secretary of State and sent by him to the Senior Master with an intimation
that effect should be given to the request without requiring an application for that purpose to be made by the agent in England of any party to the matter pending or contemplated before the foreign court or tribunal; or
(b) is received by the Senior Master in pursuance of a Civil Procedure Convention providing for the taking of the evidence of any person in England or Wales for the assistance of a court or tribunal in the foreign country, and no person is named in the document as the person who will make the necessary application on behalf of such party,
the Senior Master shall send the document to the Treasury Solicitor and the Treasury Solicitor may, with the consent of the Treasury, make an application for an order under the Act of 1975, and take such other steps as may be necessary, to give effect to the request.
Person to take and manner of taking examination
Rule 4. (1) Any order made in pursuance of this Order for the examination of a witness may order the examination to be taken before any fit and proper person nominated by the person applying for the order or before an examiner of the Court or before such other qualified person as to the Court seems fit.
(2) Subject to rule 6 and to any special directions contained in any order made in pursuance of this Order for the examination of any witness, the examination shall be taken in manner provided by CPR rules 34.9 and 34.10 and an order may be made under CPR rule 34.14, for payment of the fees and expenses due to the examiner, and those rules shall apply accordingly with any necessary modifications.
Dealing with deposition
Rule 5. Unless any order made in pursuance of this Order for the examination of any witness otherwise directs, the examiner before whom the examination was taken must send the deposition of that witness to the Senior Master, and the Senior Master shall—
(132)1977 c. 37.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
254
(a) give a certificate sealed with the seal of the Supreme Court for use out of the jurisdiction identifying the documents annexed thereto, that is to say, the request, the order of the Court for examination and the deposition taken in pursuance of the order; and
(b) send the certificate with the documents annexed thereto to the Secretary of State, or, where the request was sent to the Senior Master by some other person in accordance with a Civil Procedure Convention to that other person, for transmission to the court or tribunal out of the jurisdiction requesting the examination.
Claim to privilege
Rule 6. (1) The provisions of this rule shall have effect where a claim by a witness to be exempt from giving any evidence on the ground specified in section 3 (1)(b) of the Act of 1975 is not supported or conceded as mentioned in subsection (2) of that section.
(2) The examiner may, if he thinks fit, require the witness to give the evidence to which the claim relates and, if the examiner does not do so, the Court may do so, on the application without notice being served on any other party of the person who obtained the order under section 2.
(3) If such evidence is taken— (a) it must be contained in a document separate from the remainder of the deposition of the
witness; (b) the examiner shall send to the Senior Master with the deposition a statement signed by the
examiner setting out the claim and the ground on which it was made; (c) on receipt of the statement the Senior Master shall, notwithstanding anything in rule 5,
retain the document containing the part of the witness' evidence to which the claim relates and shall send the statement and a request to determine the claim to the foreign court or tribunal with the documents mentioned in rule 5;
(d) if the claim is rejected by the foreign court or tribunal, the Senior Master shall send to that court or tribunal the document containing that part of the witness' evidence to which the claim relates, but if the claim is upheld he shall send the document to the witness, and shall in either case notify the witness and the person who obtained the order under section 2 of the court or tribunal’s determination.
RSC ORDER 71 RECIPROCAL ENFORCEMENT OF JUDGMENTS AND ENFORCEMENT OF EUROPEAN COMMUNITY JUDGMENTS AND RECOMMENDATIONS ETC.
UNDER THE MERCHANT SHIPPING (LINER CONFERENCES) ACT 1982(133)
I. Reciprocal Enforcement: the Administration of Justice Act 1920(134) and the Foreign Judgments (Reciprocal Enforcement) Act 1933(135)
Powers under relevant Acts exercisable by judge or master
Rule 1. The powers conferred on the High Court by Part II of the Administration of Justice Act 1920 (in this Part of this Order referred to as the “Act of 1920”) or Part I of the Foreign Judgments
(133) 1982 c. 37. (134)1920 c. 81. (135)1933 c. 13. section 2 was amended by the Administration of Justice Act 1977 (c. 38), section 4, 32(4), schedule 5, Part
1; section 4 was amended by the Civil Jurisdiction and Judgments Act 1982 (c. 27), section 54, schedule 14.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
255
(Reciprocal Enforcement) Act 1933 (in this Part of this Order referred to as the “Act of 1933”) may be exercised by a judge and a master of the Queen’s Bench Division sitting in private.
Application for registration
Rule 2. (1) An application— (a) under section 9 of the Act of 1920, in respect of a judgment obtained in a superior court in
any part of Her Majesty’s dominions or other territory to which Part II of that Act applies; or
(b) under section 2 of the Act of 1933, in respect of a judgment to which Part I of that Act applies,
to have the judgment registered in the High Court may be made without notice being served on any other party, but the Court hearing the application may direct that a claim form be filed and served.
Evidence in support of application
Rule 3. (1) An application for registration must be supported by a witness statement or affidavit —
(a) exhibiting the judgment or a verified or certified or otherwise duly authenticated copy thereof, and where the judgment is not in the English language, a translation thereof in that language certified by a notary public or authenticated by witness statement or affidavit;
(b) stating the name, trade or business and the usual or last known place of abode or business of the judgment creditor and the judgment debtor respectively, so far as known to the witness;
(c) stating to the best of the information or belief of the witness— (i) that the judgment creditor is entitled to enforce the judgment;
(ii) as the case may require, either that at the date of the application the judgment has not been satisfied, or the amount in respect of which it remains unsatisfied;
(iii) where the application is made under the Act of 1920, that the judgment does not fall within any of the cases in which a judgment may not be ordered to be registered under section 9 of that Act;
(iv) where the application is made under the Act of 1933, that at the date of the application the judgment can be enforced by execution in the country of the original court and that, if it were registered, the registration would not be, or be liable to be, set aside under section 4 of that Act;
(d) specifying, where the application is made under the Act of 1933, the amount of the interest, if any, which under the law of the country of the original court has become due under the judgment up to the time of registration;
(e) verifying that the judgment is not a judgment to which section 5 of the Protection of Trading Interests Act 1980(136) applies.
(2) Where a judgment sought to be registered under the Act of 1933 is in respect of different matters, and some, but not all, of the provisions of the judgment are such that if those provisions had been contained in separate judgments, those judgments could properly have been registered, the witness statement or affidavit must state the provisions in respect of which it is sought to register the judgment.
(3) In the case of an application under the Act of 1933, the witness statement or affidavit must be accompanied by such other evidence with respect to the enforceability of the judgment by execution in the country of the original court, and of the law of that country under which any interest has
(136)1980 c. 11.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
256
become due under the judgment, as may be required having regard to the provisions of the Order in Council extending that Act to that country.
Security for costs
Rule 4. Save as otherwise provided by any relevant Order in Council, the Court may order the judgment creditor to give security for the costs of the application for registration and of any proceedings which may be brought to set aside the registration.
Order for registration
Rule 5. (1) An order giving permission to register a judgment must be drawn up by, or on behalf of, the judgment creditor.
(2) Except where the order is made by claim form, no such order need be served on the judgment debtor.
(3) Every such order shall state the period within which an application may be made to set aside the registration and shall contain a notification that execution on the judgment will not issue until after the expiration of that period.
(4) The Court may, on an application made at any time while it remains competent for any party to apply to have the registration set aside, extend the period (either as originally fixed or as subsequently extended) within which an application to have the registration set aside may be made.
Register of judgments
Rule 6. (1) There shall be kept in the Central Office of the Supreme Court under the direction of the Senior Master a register of the judgments ordered to be registered under the Act of 1920 and a register of the judgments ordered to be registered under the Act of 1933.
(2) There shall be included in each such register particulars of any execution issued on a judgment ordered to be so registered.
Notice of registration
Rule 7. (1) Notice of the registration of a judgment must be served on the judgment debtor by delivering it to him personally or by sending it to him at his usual or last known place of abode or business or in such other manner as the Court may direct.
(2) Permission is not required to serve such a notice out of the jurisdiction, and Order 11, rules 5, 6 and 8, shall apply in relation to such a notice as they apply in relation to a claim form.
(3) The notice of registration must state— (a) full particulars of the judgment registered and the order for registration; (b) the name and address of the judgment creditor or of his solicitor or agent on whom, and
at which, any application notice or other document issued by the judgment debtor may be served;
(c) the right of the judgment debtor to apply to have the registration set aside; and (d) the period within which an application to set aside the registration may be made.
Application to set aside registration
Rule 9. (1) An application to set aside the registration of a judgment must be made in accordance with CPR Part 23 and be supported by witness statement or affidavit.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
257
(2) The Court hearing such application may order any issue between the judgment creditor and the judgment debtor to be tried in any manner in which an issue in a claim may be ordered to be tried.
(3) Where the Court hearing an application to set aside the registration of a judgment registered under the Act of 1920 is satisfied that the judgment falls within any of the cases in which a judgment may not be ordered to be registered under s.9 of that Act or that it is not just or convenient that the judgment should be enforced in England or Wales or that there is some other sufficient reason for setting aside the registration, it may order the registration of the judgment to be set aside on such terms as it thinks fit.
Issue of execution
Rule 10. (1) Execution shall not issue on a judgment registered under the Act of 1920 or the Act of 1933 until after the expiration of the period which, in accordance with rule 5 (3) is specified in the order for registration as the period within which an application may be made to set aside the registration or, if that period has been extended by the Court, until after the expiration of that period as so extended.
(2) If an application is made to set aside the registration of a judgment, execution on the judgment shall not issue until after such application is finally determined.
(3) Any party wishing to issue execution on a judgment registered under the Act of 1920 or the Act of 1933 must produce to the court officer a witness statement or affidavit of service of the notice of registration of the judgment and any order made by the Court in relation to the judgment.
Determination of certain questions
Rule 11. If, in any case under the Act of 1933, any question arises whether a foreign judgment can be enforced by execution in the country of the original court, or what interest is payable under a foreign judgment under the law of the original court, that question shall be determined in accordance with the provisions in that behalf contained in the Order in Council extending Part I of that Act to that country.
Rules to have effect subject to Orders in Council
Rule 12. The foregoing rules shall, in relation to any judgment registered or sought to be registered under the Act of 1933, have effect subject to any such provisions contained in the Order in Council extending Part I of that Act to the country of the original court as are declared by the Order to be necessary for giving effect to the agreement made between Her Majesty and that country in relation to matters with respect to which there is power to make those rules.
Certified copy of High Court judgment
Rule 13. (1) An application under section 10 of the Act of 1920 or section 10 of the Act of 1933 for a certified copy of a judgment entered in the High Court must be made without notice being served on any other party on witness statement or affidavit to a master or, in the case of a judgment given in proceedings in the Family Division, to a district judge of that Division.
(2) A witness statement or affidavit by which an application under section 10 of the Act of 1920 is made must give particulars of the judgment, show that the judgment creditor wishes to secure the enforcement of the judgment in a part (stating which) of Her Majesty’s dominions outside the United Kingdom to which Part II of that Act extends and state the name, trade or business and the usual or last known place of abode of the judgment creditor and the judgment debtor respectively, so far as known to the witness.
(3) A witness statement or affidavit by which an application under section 10 of the Act of 1933 is made must—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
258
(a) give particulars of the proceedings in which the judgment was obtained; (b) have annexed to it a copy of the claim form by which the proceedings were begun, the
evidence of service thereof on the defendant, copies of the statements of case or pleadings, if any, and a statement of the grounds on which the judgment was based;
(c) state whether the defendant did or did not object to the jurisdiction, and, if so, on what grounds;
(d) show that the judgment is not subject to any stay of execution; (e) state that the time for appealing has expired or, as the case may be, the date on which
it will expire and in either case whether notice of appeal against the judgment has been entered; and
(f) state the rate at which the judgment carries interest. (4) The certified copy of the judgment shall be an office copy sealed with the seal of the Supreme
Court and indorsed with a certificate signed by a master or, where appropriate, a district judge or a registrar certifying that the copy is a true copy of a judgment obtained in the High Court of England and that it is issued in accordance with section 10 of the Act of 1920 or section 10 of the Act of 1933, as the case may be.
(5) Where the application is made under section 10 of the Act of 1933 there shall also be issued a certificate (signed by a master or, where appropriate, a district judge or a registrar and sealed with the seal of the Supreme Court) having annexed to it a copy of the claim form or other process by which the proceedings were begun, and stating—
(a) the manner in which the claim form was served on the defendant or that the defendant acknowledged service thereof;
(b) what objections, if any, were made to the jurisdiction; (c) what statements of case, if any, were served; (d) the grounds on which the judgment was based; (e) that the time for appealing has expired or, as the case may be, the date on which it will
expire; (f) whether notice of appeal against the judgment has been entered; and (g) such other particulars as it may be necessary to give to the court in the foreign country in
which it is sought to obtain execution of the judgment, and a certificate (signed and sealed as aforesaid) stating the rate at which the judgment carries interest.
II. Enforcement of European Community Judgments
Interpretation
Rule 15. In this Part of this Order “the Order in Council” means the European Communities (Enforcement of Community Judgments) Order 1972(137), and expressions used in the Order in Council shall, unless the context otherwise requires, have the same meanings as in that Order.
Functions under Order in Council exercisable by judge or master
Rule 16. The functions assigned to the High Court by the Order in Council may be exercised by a judge and a master of the Queen’s Bench Division sitting in private.
(137)S.I. 1972/1590 as amended by S.I. 1998/1259.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
259
Application for registration of Community judgment, etc.
Rule 17. An application for the registration in the High Court of a Community judgment or Euratom inspection order may be made without notice being served on any other party.
Evidence in support of application
Rule 18. (1) An application for registration must be supported by a witness statement or affidavit exhibiting—
(a) the Community judgment and the order for its enforcement or, as the case may be, the Euratom inspection order or, in either case, a duly authenticated copy thereof, and
(b) where the Community judgment or Euratom inspection order is not in the English language, a translation into English certified by a notary public or authenticated by witness statement or affidavit.
(2) Where the application is for registration of a Community judgment under which a sum of money is payable, the witness statement or affidavit shall also state—
(a) the name and occupation and the usual or last known place of abode or business of the judgment debtor, so far as known to the witness; and
(b) to the best of the witness’s information and belief that at the date of the application the European Court has not suspended enforcement of the judgment and that the judgment is unsatisfied or, as the case may be, the amount in respect of which it remains unsatisfied.
Register of judgments and orders
Rule 19. (1) There shall be kept in the Central Office of the Supreme Court under the direction of the Senior Master a register of the Community judgments and Euratom inspection orders registered under the Order in Council.
(2) There shall be included in the register particulars of any execution issued on a judgment so registered.
Notice of registration
Rule 20. (1) Upon registering a Community judgment or Euratom inspection order, the court shall forthwith send notice of the registration to every person against whom the judgment was given or the order was made.
(2) The notice of registration shall have annexed to it a copy of the registered Community judgment and the order for its enforcement or, as the case may be, a copy of the Euratom inspection order, and shall state the name and address of the person on whose application the judgment or order was registered or of his solicitor or agent on whom process may be served.
(3) Where the notice relates to a Community judgment under which a sum of money is payable, it shall also state that the judgment debtor may apply within 28 days of the date of the notice, or thereafter with the permission of the Court, for the variation or cancellation of the registration on the ground that the judgment had been partly or wholly satisfied at the date of registration.
Issue of execution
Rule 21. Execution shall not issue without the permission of the Court on a Community judgment under which a sum of money is payable until the expiration of 28 days after the date of notice of registration of the judgment or, as the case may be, until any application made within that period for the variation or cancellation of the registration has been determined.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
260
Application to vary or cancel registration
Rule 22. An application for the variation or cancellation of the registration of a Community judgment on the ground that the judgment had been wholly or partly satisfied at the date of registration shall be made by claim form supported by witness statement or affidavit.
Application for registration of suspension order
Rule 23. An application for the registration in the High Court of an order of the European Court that enforcement of a registered Community judgment be suspended may be made without notice being served on any other party by lodging a copy of the order in the Central Office of the Supreme Court.
Application for enforcement of Euratom inspection order
Rule 24. An application for an order under Article 6 of the Order in Council for the purpose of ensuring that effect is given to a Euratom inspection order may, in case of urgency, be made without notice being served on any other party on witness statement or affidavit but, except as aforesaid, shall be made by claim form.
III. Reciprocal Enforcement: the Civil Jurisdiction and Judgments Act 1982(138)
Interpretation
Rule 25. (1) In this Part of this Order— “the Act of 1982” means the Civil Jurisdiction and Judgments Act 1982: “Convention territory” means the territory or territories of any Contracting State, as defined by s.1 (3) of the Act of 1982, to which the Brussels Convention or the Lugano Convention as defined in s.1 (1) of the Act of 1982 apply; “judgment” is to be construed in accordance with the definition of “judgment” in s.50 of the Act of 1982; “money provision” means a provision for the payment of one or more sums of money; “non-money provision” means a provision for any relief or remedy not requiring payment of a sum of money; “protective measures” means the protective measures referred to in Art 39 of Schedule 1 or of Schedule 3C to the Act of 1982.
(2) For the purposes of this Part of this Order domicile is to be determined in accordance with the provisions of ss.41 to 46 of the Act of 1982.
Assignment of business and exercise of powers
Rule 26. Any application to the High Court under the Act of 1982 shall be assigned to the Queen’s Bench Division.
Application for registration
Rule 27. An application for registration of a judgment under s.4 of the Act of 1982 shall be made without notice being served on any other party.
(138)1982 c. 27; section 1 was amended by S.I. 1989/1346, 1990/2591, and by the Civil Jurisdiction and Judgments Act 1991 (c. 12), section 2.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
261
Evidence in support of application
Rule 28. (1) An application for registration under s.4 of the Act of 1982 must be supported by a witness statement or affidavit—
(a) exhibiting— (i) the judgment or a verified or certified or otherwise duly authenticated copy thereof
together with such other document or documents as may be requisite to show that, according to the law of the State in which it has been given, the judgment is enforceable and has been served;
(ii) in the case of a judgment given in default, the original or a certified true copy of the document which establishes that the party in default was served with the document instituting the proceedings or with an equivalent document;
(iii) where it is the case, a document showing that the party making the application is in receipt of legal aid in the State in which the judgment was given;
(iv) where the judgment or document is not in the English language, a translation thereof into English certified by a notary public or a person qualified for the purpose in one of the Contracting States or authenticated by witness statement or affidavit;
(b) stating— (i) whether the judgment provides for the payment of a sum or sums of money;
(ii) whether interest is recoverable on the judgment or part thereof in accordance with the law of the State in which the judgment was given, and if such be the case, the rate of interest, the date from which interest is recoverable, and the date on which interest ceases to accrue;
(c) giving an address within the jurisdiction of the Court for service of process on the party making the application and stating, so far as is known to the witness, the name and the usual or last known address or place of business of the person against whom judgment was given;
(d) stating to the best of the information or belief of the witness— (i) the grounds on which the right to enforce the judgment is vested in the party making
the application; (ii) as the case may require, either that at the date of the application the judgment has
not been satisfied, or the part or amount in respect of which it remains unsatisfied. (2) Where the party making the application does not produce the documents referred to in
paragraphs (1)(a)(ii) and (iii) of this rule, the Court may— (a) fix a time within which the documents are to be produced; or (b) accept equivalent documents; or (c) dispense with production of the documents.
Security for costs
Rule 29. Notwithstanding the provisions of Order 23 a party making an application for registration under section 4 of the Act of 1982 shall not be required solely on the ground that he is not domiciled or resident within the jurisdiction, to give security for costs of the application.
Order for registration
Rule 30. (1) An order giving permission to register a judgment under section 4 of the Act of 1982 must be drawn up by or on behalf of the party making the application for registration.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
262
(2) Every such order shall state the period within which an appeal may be made against the order for registration and shall contain a notification that execution on the judgment will not issue until after the expiration of that period.
(3) The notification referred to in paragraph (2) shall not prevent any application for protective measures pending final determination of any issue relating to enforcement of the judgment.
Register of judgments registered under s.4 of the Act of 1982
Rule 31. There shall be kept in the Central Office of the Supreme Court under the direction of the Senior Master a register of the judgments ordered to be registered under section 4 of the Act of 1982.
Notice of registration
Rule 32. (1) Notice of the registration of a judgment must be served on the person against whom judgment was given by delivering it to him personally or by sending it to him at his usual or last known address or place of business or in such other manner as the Court may direct.
(2) Permission is not required to serve such a notice out of the jurisdiction and Order 11, rules 5, 6 and 8 shall apply in relation to such a notice as they apply in relation to a claim form.
(3) The notice of registration must state— (a) full particulars of the judgment registered and the order for registration; (b) the name of the party making the application and his address for service within the
jurisdiction; (c) the right of the person against whom judgment was given to appeal against the order for
registration; and (d) the period within which an appeal against the order for registration may be made.
Appeals
Rule 33. (1) An appeal under Article 37 or Article 40 of Schedule 1 or 3C to the Act of 1982 must be made to a judge by application in accordance with CPR Part 23.
(2) A claim form in an appeal to which this rule applies must be served— (a) in the case of an appeal under the said Article 37 of Schedule 1 or 3C, within one month of
service of notice of registration of the judgment, or two months of service of such notice where that notice was served on a party not domiciled within the jurisdiction;
(b) in the case of an appeal under the said Article 40 of Schedule 1 or 3C, within one month of the determination of the application under rule 27.
(3) If the party against whom judgment was given is not domiciled in a Convention territory and an application is made within two months of service of notice of registration, the Court may extend the period within which an appeal may be made against the order for registration.
Issue of execution
Rule 34. (1) Execution shall not issue on a judgment registered under s.4 of the Act of 1982 until after the expiration of the period specified in accordance with rule 30 (2) or, if that period has been extended by the Court, until after the expiration of the period so extended.
(2) If an appeal is made under rule 33 (1) execution on the judgment shall not issue until after such appeal is determined.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
263
(3) Any party wishing to issue execution on a judgment registered under section 4 of the Act of 1982 must produce to the court officer a witness statement or affidavit of service of the notice of registration of the judgment and of any order made by the Court in relation to the judgment.
(4) Nothing in this rule shall prevent the Court from granting protective measures pending final determination of any issue relating to enforcement of the judgment.
Application for recognition
Rule 35. (1) Registration of the judgment under these rules shall serve for the purposes of the second paragraph of Article 26 of Schedule 1 or 3C to the Act of 1982 as a decision that the judgment is recognised.
(2) Where it is sought to apply for recognition of a judgment, the foregoing rules of this Order shall apply to such application as they apply to an application for registration under section 4 of the Act, with the exception that the applicant shall not be required to produce a document or documents which establish that according to the law of the State in which it has been given the judgment is enforceable and has been served, or the document referred to in rule 28 (1)(a)(iii).
Enforcement of High Court judgments in other Contracting States
Rule 36. (1) An application under section 12 of the Act of 1982 for a certified copy of a judgment entered in the High Court must be made without notice being served on any other party on witness statement or affidavit to the Court.
(2) a witness statement or affidavit by which an application under section 12 of the Act of 1982 is made must—
(a) give particulars of the proceedings in which the judgment was obtained; (b) have annexed to it a copy of the claim form, by which the proceedings were begun, the
evidence of service thereof on the defendant, copies of the statements of case, if any, and a statement of the grounds on which the judgment was based together, where appropriate, with any document under which the applicant is entitled to legal aid or assistance by way of representation for the purposes of the proceedings;
(c) state whether the defendant did or did not object to the jurisdiction, and, if so, on what grounds;
(d) show that the judgment has been served in accordance with CPR Part 6 and CPR rule 40.4 and is not subject to any stay of execution;
(e) state that the time for appealing has expired, or, as the case may be, the date on which it will expire and in either case whether notice of appeal against the judgment has been given; and
(f) state— (i) whether the judgment provides for the payment of a sum or sums of money;
(ii) whether interest is recoverable on the judgment or part thereof and if such be the case, the rate of interest, the date from which interest is recoverable, and the date on which interest ceases to accrue.
(3) The certified copy of the judgment shall be an office copy sealed with the seal of the Supreme Court and there shall be issued with the copy of the judgment a certificate in Form 110, signed by a High Court judge, the Admiralty Registrar, a master or a district judge and sealed with the seal of the Supreme Court, having annexed to it a copy of the claim form by which the proceedings were begun.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
264
Enforcement of United Kingdom judgments in other parts of the United Kingdom: money provisions
Rule 37. (1) An application for registration in the High Court of a certificate in respect of any money provisions contained in a judgment given in another part of the United Kingdom to which section 18 of the Act of 1982 applies may be made by producing at the Central Office of the Supreme Court, within six months from the date of its issue, a certificate in the appropriate form prescribed under that Act together with a copy thereof certified by the applicant’s solicitor to be a true copy.
(2) A certificate under paragraph (1) must be filed in the Central Office of the Supreme Court and the certified copy thereof, sealed by an officer of the office in which the certificate is filed, shall be returned to the applicant’s solicitor.
(3) A certificate in respect of any money provisions contained in a judgment of the High Court to which section 18 of the Act of 1982 applies may be obtained by producing the form of certificate prescribed in Form 111 at the office in which the judgment is entered, together with a witness statement or affidavit made by the party entitled to enforce the judgment—
(a) giving particulars of the judgment, stating the sum or aggregate of the sums (including any costs or expenses) payable and unsatisfied under the money provisions contained in the judgment, the rate of interest, if any, payable thereon and the date or time from which any such interest began to accrue;
(b) verifying that the time for appealing against the judgment has expired, or that any appeal brought has been finally disposed of and that enforcement of the judgment is not stayed or suspended; and
(c) stating to the best of the information or belief of the witness the usual or last known address of the party entitled to enforce the judgment and of the party liable to execution on it.
Enforcement of United Kingdom judgments in other parts of the United Kingdom: non- money provisions
Rule 38. (1) An application for registration in the High Court of a judgment which contains non- money provisions, being a judgment given in another part of the United Kingdom to which section 18 of the Act of 1982 applies, may be made without notice being served on any other party, but the Court hearing the application may direct a claim form to be filed and served to which paragraphs (2) and (3) of rule 2 shall apply.
(2) An application under paragraph (1) must be accompanied by a certified copy of the judgment issued under Schedule 7 to the Act of 1982 and a certificate in the appropriate form prescribed for the purposes of paragraph 4 (1)(b) of that Schedule issued not more than six months before the date of application.
(3) Rules 30 and 32 of this Order shall apply to judgments registered under Schedule 7 to the Act of 1982 as they apply to judgments registered under section 4 of that Act.
(4) Paragraphs (1) and (2) of rule 9 shall apply to applications to set aside registration of a judgment under Schedule 7 to the Act of 1982 as they apply to judgments registered under the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933.
(5) A certified copy of a judgment of the High Court to which section 18 of the Act of 1982 applies and which contains any non-money provision may be obtained by an application on witness statement or affidavit to the Court.
(5A) An application referred to in paragraph (5) need not be served on any other party. (6) The requirements in paragraph (3) of rule 37 shall apply with the necessary modifications to
a witness statement or affidavit made in an application under paragraph (5) of this rule.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
265
(7) A certified copy of a judgment shall be an office copy sealed with the seal of the Supreme Court to which shall be annexed a certificate in Form 112.
Register of United Kingdom judgments
Rule 39. There shall be kept in the Central Office of the Supreme Court under the direction of the Senior Master a register of the certificates in respect of judgments and of the judgments ordered to be registered in the Central Office of the Supreme Court under Schedule 6, or, as the case may be, Schedule 7 to the Act.
Authentic Instruments and Court Settlements
Rule 39A. Rules 27 to 35 inclusive (except rule 28 (1)(a)(ii)) shall apply to: (1) an authentic instrument to which either article 50 of Schedule 1 to the Act of 1982 or article
50 of Schedule 3C to the Act applies; and (2) a settlement to which either article 51 of Schedule 1 to the Act of 1982 or article 51 of
Schedule 3C to that Act applies,
as they apply to a judgment subject to any necessary modifications.
IV. Enforcement of Recommendations etc. Under the Merchant Shipping (Liner Conferences) Act 1982(139)
Exercise of powers
Rule 40. The powers conferred on the High Court under the Merchant Shipping (Liner Conferences) Act 1982 (in this Part of this Order referred to as “the Act of 1982”) may be exercised by a Commercial Judge.
Application for registration
Rule 41. An application under section 9 of the Act of 1982 for the registration of a recommendation, determination or award, shall be made by claim form.
Evidence in support of application
Rule 42. (1) An application under section 9 of the Act of 1982 for the registration of a recommendation must be supported by a witness statement or affidavit—
(a) exhibiting a verified or certified or otherwise duly authenticated copy of the recommendation and the reasons therefor and of the record of settlement;
(b) where the recommendation and reasons or the record of settlement is not in the English language, a translation thereof into English certified by a notary public or authenticated by witness statement or affidavit;
(c) exhibiting copies of the acceptance of the recommendation by the parties upon whom it is binding, where the acceptance was in writing, or otherwise verifying the acceptance;
(d) giving particulars of the failure to implement the recommendation; and (e) verifying that none of the grounds which would render the recommendation unenforceable
under section 9(2) of the Act of 1982 is applicable.
(139)c.37.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
266
(2) An application under section 9 of the Act of 1982 for the registration of a determination or award as to costs must be supported by a witness statement or affidavit—
(a) exhibiting a verified or certified or otherwise duly authenticated copy of the recommendation or other document containing the pronouncement on costs; and
(b) stating that such costs have not been paid.
Order for registration
Rule 43. (1) An order giving permission to register a recommendation, determination or award under section 9 of the Act of 1982 must be drawn up by or on behalf of the party making the application for registration.
(2) Such an order shall contain a provision that the reasonable costs of registration be taxed.
Register of recommendations etc.
Rule 44. (1) There shall be kept in the Admiralty and Commercial Registry under the direction of the Senior Master a register of the recommendations, determinations and awards ordered to be registered under section 9 of the Act of 1982.
(2) There shall be included in such register particulars of the enforcement of a recommendation, determination or award so registered.
RSC ORDER 74 APPLICATIONS AND APPEALS UNDER
THE MERCHANT SHIPPING ACT 1995(140)
Assignment of proceedings
Rule 1. (1) Subject to paragraph (2), proceedings by which any application is made to the High Court under the Merchant Shipping Act 1995 shall be assigned to the Queen’s Bench Division and taken by the Admiralty Court.
Appeals and re-hearings
Rule 2. (1) An appeal to the High Court under section 28 of the Pilotage Act 1913(141) against a decision of a county court judge or a magistrate shall be heard and determined by a Divisional Court of the Queen’s Bench Division constituted as far as practicable of Admiralty Judges.
(2) Subject to the provisions of this rule, Orders 55 and 57 shall apply in relation to an appeal to the High Court under the Merchant Shipping Act 1995 and for this purpose a re-hearing and an application under section 61 of the Merchant Shipping Act 1995 shall be treated as an appeal.
(3) In the case of an appeal to which paragraph (2) applies, the documents required to be filed before entry for the purposes of Order 57, rule 2 (1) shall include the report, if any, to the Secretary of State containing the decision from which the appeal is brought.
(4) Where a re-hearing by the High Court is ordered under sections 64 or 269 of the Merchant Shipping Act 1995, the Secretary of State shall cause such reasonable notice to be given to the parties whom he considers to be affected by the re-hearing as the circumstances of the case may, in his opinion, permit.
(140) 1995 c. 21. (141)1913 c. 31
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
267
RSC ORDER 77 PROCEEDINGS BY AND AGAINST THE CROWN
Application and interpretation
Rule 1. (1) These rules apply to civil proceedings to which the Crown is a party subject to the following rules of this Order.
(2) In this Order— “civil proceedings by the Crown”, “civil proceedings against the Crown” and “civil proceedings by or against the Crown” have the same respective meanings as in Part II of the Crown Proceedings Act 1947(142), and do not include any of the proceedings specified in section 23(3) of that Act; “civil proceedings to which the Crown is a party” has the same meaning as it has for the purposes of Part IV of the Crown Proceedings Act 1947, by virtue of section 38 (4) of that Act; “order against the Crown” means any order (including an order for costs) made in any civil proceedings by or against the Crown or in any proceedings on the Crown side of the Queen’s Bench Division, or in connection with any arbitration to which the Crown is a party, in favour of any person against the Crown or against a government department or against an officer of the Crown as such; “order” includes a judgment, decree, rule, award or declaration.
Transfer of proceedings
Rule 2. (1) Subject to paragraph (2) in civil proceedings by or against the Crown no order shall be made under CPR Part 30 for the transfer of the proceedings, or of any application therein, from the Royal Courts of Justice to a district registry, except with the consent of the Crown.
(2) In any civil proceedings against the Crown begun by the issue of a claim form out of a district registry the Crown may acknowledge service of the claim form either in the district registry or, at the option of the Crown, in the appropriate office of the Supreme Court at the Royal Courts of Justice, and where service is acknowledged in an office of the Supreme Court at the Royal Courts of Justice the claim shall thereafter proceed in the Royal Courts of Justice and no order shall be made under CPR Part 30 for the transfer of any proceedings before the trial from the Royal Courts of Justice to a district registry.
Particulars to be included in claim form
Rule 3. (1) In the case of a claim form which begins civil proceedings against the Crown the contents of the claim form required by CPR rule 16.2 shall include a statement of the circumstances in which the Crown’s liability is alleged to have arisen and as to the government department and officers of the Crown concerned.
(2) If in civil proceedings against the Crown a defendant considers that the claim form does not contain a sufficient statement as required by this rule, he may, before the expiration of the time limited for acknowledging service of the claim form, apply to the claimant by notice for a further and better statement containing such information as may be specified in the notice.
(3) Where a defendant gives a notice under this rule, the time limited for acknowledging service of the claim form shall not expire until 4 days after the defendant has notified the claimant in writing that the defendant is satisfied with the statement supplied in compliance with the notice or 4 days
(142)1947 c. 44.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
268
after the Court has, on the application of the claimant in accordance with CPR Part 23, decided that no further information as to the matters referred to in paragraph (1) is reasonably required.
(3A) An application notice under paragraph (3) shall be served on the defendant not less than 7 days before the hearing.
Service on the Crown
Rule 4. (1) Order 11 and any other provision of these rules relating to service out of the jurisdiction shall not apply in relation to the service of any process by which civil proceedings against the Crown are begun.
(2) Personal service of any document required to be served on the Crown for the purpose of or in connection with any civil proceedings is not requisite; but where the proceedings are by or against the Crown service on the Crown must be effected—
(a) by leaving the document at the office of the person who is in accordance with section 18 of the Crown Proceedings Act 1947, to be served, or of any agent whom that person has nominated for the purpose, but in either case with a member of the staff of that person or agent; or
(b) by posting it in a prepaid envelope addressed to the person who is to be served as aforesaid or to any such agent as aforesaid.
(3) Any document (other than a claim form) service of which is effected under paragraph 2(a) between 12 noon on a Saturday and midnight on the following day or after 4 in the afternoon on any other weekday shall, for the purpose of computing any period of time after service of that document, be deemed to have been served on the Monday following that Saturday or on the day following that other weekday, as the case may be.
(4) Where by virtue of these rules any document is required to be served on any person but is not required to be served personally and at the time when service is to be effected that person is in default as to acknowledgment of service or has no address for service, the document need not be served on that person unless the Court otherwise directs or any of these rules otherwise provides.
(5) (a) No process shall be served or executed within the jurisdiction on a Sunday except, in case of urgency, with the permission of the Court.
(b) For the purposes of this rule “process” includes a claim form, judgment, application or other notice, order, petition, or warrant.
Counterclaim and set-off
Rule 6. (1) A person may not in any proceedings by the Crown make any counterclaim or claim a set-off in his statement of case if the proceedings are for the recovery of, or the counterclaim or set-off arises out of a right or claim to repayment in respect of, any taxes, duties or penalties.
(2) No counterclaim may be made, or set-off claimed in its statements of case, without the permission of the Court, by the Crown in proceedings against the Crown, or by any person in proceedings by the Crown—
(a) if the Crown is sued or sues in the name of a Government department and the subject- matter of the counterclaim or set-off does not relate to that department; or
(b) if the Crown is sued or sues in the name of the Attorney-General. (3) Any application for permission under this rule must be made by in accordance with CPR
Part 23.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
269
Summary judgment
Rule 7. (1) No application shall be made against the Crown— (a) under CPR Part 24, or Order 86, rule 1, in any proceedings against the Crown, (b) for summary judgment on a counterclaim under CPR Part 24 in any proceedings by the
Crown. (2) Where an application is made by the Crown under CPR Part 24, or Order 86, rule 1, the
affidavit or witness statement required in support of the application must be made by— (a) the solicitor acting for the Crown, or (b) an officer duly authorised by the solicitor so acting or by the department concerned
and the witness statement or affidavit shall be sufficient if it states that in the belief of the witness the applicant is entitled to the relief claimed and there is no defence to the claim or part of a claim to which the application relates or no defence except as to the amount of any damages claimed.
Summary applications to the Court in certain revenue matters
Rule 8. (1) This rule applies to applications under section 14 of the Crown Proceedings Act 1947(143).
(2) An application to which this rule applies shall be made by claim form. (3) The person from whom any account or information or payment is claimed or by whom any
books are required to be produced must be made a defendant to the application. (4) A claim form under this rule—
(a) must be entitled in the matter or matters out of which the need for the application arises and in the matter of the Crown Proceedings Act 1947; and
(b) must refer to the enactment under which the account or information or payment or the production of books is claimed and, where information is claimed, must show (by appropriate questions or otherwise) what information is required.
(5) Upon any application to which this rule applies, a witness statement or affidavit by a duly authorised officer of the Government department concerned setting out the state of facts upon which the application is based and stating that he has reason to think that those facts exist shall be evidence of those facts; and if evidence is filed disputing any of those facts, further evidence may be filed and the Court may either decide the matter upon the witness statements or affidavits (after any cross- examination that may have been ordered) or may direct that it be decided by oral evidence in Court.
(6) An order in favour of the Crown on an application to which this rule applies shall, unless the Court otherwise determines, name a time within which each of its terms is to be complied with.
(8) Nothing in this rule shall, in relation to any case in which the only remedy claimed by the Crown is the payment of money, be construed as requiring the Crown to proceed by way of an application to which this rule applies or as preventing the Crown from availing itself of any other procedure which is open to it under these rules.
Joinder of Commissioners of Inland Revenue
Rule 8A. Nothing in CPR rule 19.3 shall be construed as enabling the Commissioners of Inland Revenue to be added as a party to any proceedings except with their consent signified in writing or in such manner as may be authorised.
(143)1947 c. 44; section 14 was amended by the Finance Act 1975 (c. 7), section 52(1), schedule 12, paragraph 28; by the Inheritance Tax Act 1984 (c. 51), section 276, schedule 8, paragraph 2; and by the Finance Act 1972 (c. 41), section 55.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
270
Judgment in default
Rule 9. (1) Except with the permission of the Court, no judgment in default under CPR Part 12 shall be entered against the Crown in civil proceedings against the Crown.
(2) Except with the permission of the Court, a defendant shall not enter default judgment against the Crown as a third party.
(3) An application for permission under this rule may be made by an application in accordance with CPR Part 23 and the application notice must be served not less than 7 days before the return day.
Third party notices
Rule 10. (1) A Part 20 claim for service on the Crown, where the Crown is not already a party shall not be issued without the permission of the Court, and the application for the grant of such permission must be made by application in accordance with CPR Part 23, and the application notice must be served on the claimant and the Crown.
(2) Permission to issue such a claim for service on the Crown shall not be granted unless the Court is satisfied that the Crown is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the departments and officers of the Crown concerned.
Interpleader: application for order against Crown
Rule 11. No order shall be made against the Crown under Order 17, rule 5 (3) except upon an application by claim form served not less than 7 days before the return day.
Disclosure and further information
Rule 12. (3) Where in any proceedings an order of the Court directs that a list of documents made in answer to an order for disclosure against the Crown shall be verified by witness statement or affidavit, the witness statement or affidavit shall be made by such officer of the Crown as the Court may direct.
(4) Where in any proceedings an order is made under the said section 28 for further information to be provided by the Crown, the Court shall direct by what officer of the Crown the further information is to be provided.
Place of trial
Rule 13. (1) Civil proceedings by or against the Crown shall not, except with the consent of the Crown, be directed to be tried elsewhere than at the Royal Courts of Justice.
(2) Nothing in any of these rules shall prejudice the right of the Crown to demand a local venue for the trial of any proceedings in which the Attorney General has waived his right to a trial at bar.
Evidence
Rule 14. (1) Civil proceedings against the Crown may be instituted to perpetuate any testimony in any case in which the Crown is alleged to have an interest or estate in the honour, title, dignity or office or property in question.
(2) For the avoidance of doubt it is hereby declared that any powers exercisable by the Court in regard to the taking of evidence are exercisable in proceedings by or against the Crown as they are exercisable in proceedings between subjects.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
271
Execution and satisfaction of orders
Rule 15. (1) Nothing in Orders 45 to 52 shall apply in respect of any order against the Crown. (2) An application under the proviso to subsection (1) of section 25 of the Crown Proceedings
Act 1947, for a direction that a separate certificate shall be issued under that subsection with respect to the costs (if any) ordered to be paid to the applicant, may be made to the Court without notice being served on any other party.
(3) Any such certificate must be in Form No. 95 or 96 in the relevant Practice Direction, whichever is appropriate.
Attachment of debts, etc.
Rule 16. (1) No order— (a) for the attachment of debts under Order 49, or (b) for the appointment of a sequestrator under Order 45, or (c) for the appointment of a receiver under Order 30 or 51,
shall be made or have effect in respect of any money due or accruing due, or alleged to be due or accruing due, from the Crown.
(1A) No application shall be made under paragraph (2) unless the order of the court to be enforced is for a sum of money amounting in value to at least £50.
(2) Every application to the Court for an order under section 27 (1) of the Crown Proceedings Act 1947(144) restraining any person from receiving money payable to him by the Crown and directing payment of the money to the applicant or some other person must be made by claim form and, unless the Court otherwise directs, served—
(a) on the Crown at least 15 days before the return day, and (b) on the person to be restrained or his solicitor at least 7 days after the claim form has been
served on the Crown and at least 7 days before the return day. (2A) An application under paragraph (2) must be supported by a witness statement or affidavit—
(a) setting out the facts giving rise to the application; (b) stating the name and last known address of the person to be restrained; (c) identifying the order to be enforced and stating the amount of such order and the amount
remaining unpaid under it at the time of the application, and (d) identifying the particular debt from the Crown in respect of which the application is made.
(2B) Where the debt from the Crown in respect of which the application is made is money payable by the Crown to a person on account of a deposit in the National Savings Bank, the witness statement or affidavit must state the name and address of the branch of the Post Office at which the account is believed to be held and the number of that account or, if it be the case, that all or part of this information is not known to the witness.
(2C) A Master, the Admiralty Registrar and a district judge of the Family Division shall have power to hear an application under paragraph (2).
(3) Order 49, rules 5 and 6, shall apply in relation to such an application as is mentioned in paragraph (2) for an order restraining a person from receiving money payable to him by the Crown as those rules apply to an application under Order 49, rule 1, for an order for the attachment of a debt owing to any person from a garnishee, except that the Court shall not have power to order execution to issue against the Crown.
(144)1947 c. 44; section 27(1) was amended by the Supreme Court Act 1981 (c. 54), section 139(1) and schedule 7.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
272
Proceedings relating to postal packets
Rule 17. (1) An application by any person under section 30 (5) of the Post Office Act 1969(145), for permission to bring proceedings in the name of the sender or addressee of a postal packet or his personal representatives must be made by claim form in the Queen’s Bench Division.
(2) The Crown and the person in whose name the applicant seeks to bring proceedings must be made defendants to a claim under this rule.
Applications under ss.17 and 29 of Crown Proceedings Act
Rule 18. (1) Every application to the Court under section 17 (4) of the Crown Proceedings Act 1947, must be made by claim form.
(2) An application such as is referred to in section 29 (2) of the Crown Proceedings Act 1947, may be made to the Court at any time before trial in accordance with CPR Part 23, or may be made at the trial of the proceedings.
RSC ORDER 79 CRIMINAL PROCEEDINGS
Estreat of recognizances
Rule 8. (1) No recognizance acknowledged in or removed into the Queen’s Bench Division shall be estreated without the order of a judge.
(2) Every application to estreat a recognizance in the Queen’s Bench Division must be made by claim form and will be heard by a judge sitting in private and must be supported by a witness statement or affidavit showing in what manner the breach has been committed and proving that the claim form was duly served.
(2A) When it issues the claim form the court will fix a date for the hearing of the application. (3) A claim form under this rule must be served at least 2 clear days before the day named therein
for the hearing. (4) On the hearing of the application the judge may, and if requested by any party shall, direct
any issue of fact in dispute to be tried by a jury. (5) If it appears to the judge that a default has been made in performing the conditions of the
recognizance, the judge may order the recognizance to be estreated.
Bail
Rule 9. (1) Subject to the provisions of this rule, every application to the High Court in respect of bail in any criminal proceeding—
(a) where the defendant is in custody, must be made by claim form to a judge sitting in private to show cause why the defendant should not be granted bail;
(b) where the defendant has been admitted to bail, must be made by claim form to a judge sitting in private to show cause why the variation in the arrangements for bail proposed by the applicant should not be made.
(2) Subject to paragraph (5), the claim form (in Form No. 97 or 97A in the relevant practice direction) must, at least 24 hours before the day named therein for the hearing, be served—
(145)1969 c. 48.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
273
(a) where the application was made by the defendant, on the prosecutor and on the Director of Public Prosecutions, if the prosecution is being carried on by him;
(b) where the application was made by the prosecutor or a constable under section 3 (8) of the Bail Act 1976(146), on the defendant.
(3) Subject to paragraph (5), every application must be supported by witness statement or affidavit.
(4) Where a defendant in custody who desires to apply for bail is unable through lack of means to instruct a solicitor, he may give notice in writing to the judge sitting in private stating his desire to apply for bail and requesting that the official solicitor shall act for him in the application, and the judge may, if he thinks fit, assign the official solicitor to act for the applicant accordingly.
(5) Where the official solicitor has been so assigned the judge may, if he thinks fit, dispense with the requirements of paragraphs (1) to (3) and deal with the application in a summary manner.
(6) Where the judge sitting in private by whom an application for bail in criminal proceedings is heard grants the defendant bail, the order must be in Form No. 98 in the relevant Practice Direction and a copy of the order shall be transmitted forthwith—
(a) where the proceedings in respect of the defendant have been transferred to the Crown Court for trial or where the defendant has been committed to the Crown Court to be sentenced or otherwise dealt with, to the appropriate officer of the Crown Court;
(b) in any other case, to the clerk of the court which committed the defendant. (6A) The recognizance of any surety required as a condition of bail granted as aforesaid may,
where the defendant is in a prison or other place of detention, be entered into before the governor or keeper of the prison or place as well as before the persons specified in section 8 (4) of the Bail Act 1976.
(6B) Where under section 3 (5) or (6) of the Bail Act 1976(147) a judge sitting in private imposes a requirement to be complied with before a person’s release on bail, the judge may give directions as to the manner in which and the person or persons before whom the requirement may be complied with.
(7) A person who in pursuance of an order for the grant of bail made by a judge under this rule proposes to enter into a recognizance or give security must, unless the judge otherwise directs, give notice (in Form No. 100 in the relevant Practice Direction) to the prosecutor at least 24 hours before he enters into the recognizance or complies with the requirements as aforesaid.
(8) Where in pursuance of such an order as aforesaid a recognizance is entered into or requirement complied with before any person, it shall be the duty of that person to cause the recognizance or, as the case may be, a statement of the requirement complied with to be transmitted forthwith—
(a) where the proceedings in respect of the defendant have been transferred to the Crown Court for trial or where the defendant has been committed to the Crown Court to be sentenced or otherwise dealt with, to the appropriate officer of the Crown Court;
(b) in any other case, to the clerk of the court which committed the defendant and a copy of such recognizance or statement shall at the same time be sent to the governor or keeper of the prison or other place of detention in which the defendant is detained, unless the recognizance was entered into or the requirement complied with before such governor or keeper.
(10) An order by the judge sitting in private varying the arrangements under which the defendant has been granted bail shall be in Form 98A in the relevant practice direction and a copy of the order shall be transmitted forthwith—
(146)1976 c. 63; section 3(8) was amended by the Criminal Law Act 1977 (c. 45), section 65(4), schedule 12. (147)1976 c. 63; section 3(6) was amended by the Criminal Justice and Public Order Act 1994 (c. 33), sections 27(2), 168(3),
schedule 11.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
274
(a) where the proceedings in respect of the defendant have been transferred to the Crown Court for trial or where the defendant has been committed to the Crown Court to be sentenced or otherwise dealt with, to the appropriate officer of the Crown Court;
(b) in any other case, to the clerk of the court which committed the defendant. (11) Where in pursuance of an order of a judge sitting in private or of a Crown Court a person
is released on bail in any criminal proceeding pending the determination of an appeal to the High Court or House of Lords or an application for an order of certiorari, then, upon the abandonment of the appeal or application, or upon the decision of the High Court or House of Lords being given, any justice (being a justice acting for the same petty sessions area as the magistrates' court by which that person was convicted or sentenced) may issue process for enforcing the decision in respect of which such appeal or application was brought or, as the case may be, the decision of the High Court or House of Lords.
(12) If an applicant to the High Court in any criminal proceedings is refused bail by a judge sitting in private, the applicant shall not be entitled to make a fresh application for bail to any other judge or to a Divisional Court.
(13) The record required by section 5 of the Bail Act 1976(148) to be made by the High Court shall be made by including in the file relating to the case in question a copy of the relevant order of the Court and shall contain the particulars set out in Form No. 98 or 98A in the relevant Practice Direction, whichever is appropriate, except that in the case of a decision to withhold bail the record shall be made by inserting a statement of the decision on the Court’s copy of the relevant claim form and including it in the file relating to the case in question.
(14) In the case of a person whose return or surrender is sought under the Extradition Act 1989(149), this rule shall apply as if references to the defendant were references to that person and references to the prosecutor were references to the State seeking the return or surrender of that person.
Issue of witness summonses, etc.
Rule 10. (1) A witness summons under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965(150) may be issued out of the Crown Office or a district registry.
A witness summons under the said section 2 must be in Form No. 101 or 103 in the relevant Practice Direction, whichever is appropriate.
(2) An application under section 2 (2) of the said Act for a direction that a witness summons shall be of no effect shall be brought by claim form, and the application shall be heard and determined in private.
Application for warrant to arrest witness
Rule 11. (1) An application to a judge of the High Court under section 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965(151) for the issue of a warrant to arrest a witness and bring him before the court before which he is required to attend must be made by claim form supported by witness statement or affidavit, and the application may be heard and determined either in public or private.
(2) A claim form by which such an application is made need not be served on the person sought to be arrested unless the judge otherwise directs.
(148)1976 c. 63; section 5 was amended by the Criminal Justice Act 1982 (c. 48), section 60; and by the Criminal Law Act 1977 (c. 45), section 65(4), schedule 12; and by the Criminal Justice and Public Order Act 1994 (c. 33), section 27(4), schedule 3, paragraph 1.
(149)1989 c. 33. (150)1965 c. 69; section 2 was amended by the Courts Act 1971 (c. 23), section 56(1), schedule 8, paragraph 45(2). (151)1965 c. 69; Section 4 was amended by the Courts Act 1971 (c. 23), section 56(1), schedule 8, Part II, paragraph 45(4); and
by the Criminal Procedure and Investigations Act 1996 (c. 25), sections 65, 80, schedule 5.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
275
RSC ORDER 81 PARTNERS
Claims by and against firms within jurisdiction
Rule 1. Subject to the provisions of any enactment, any two or more persons claiming to be entitled, or alleged to be liable, as partners in respect of a cause of action and carrying on business within the jurisdiction may sue, or be sued, in the name of the firm (if any) of which they were partners at the time when the cause of action accrued.
Disclosure of partners' names
Rule 2. (1) Any defendant to a claim brought by partners in the name of a firm may serve on the claimant’s or their solicitor a notice requiring them or him forthwith to furnish the defendant with a written statement of the names and places of residence of all the persons who were partners in the firm at the time when the cause of action accrued; and if the notice is not complied with the Court may order the claimant’s or their solicitor to furnish the defendant with such a statement and to verify it on oath or otherwise as may be specified in the order, or may order that further proceedings in the claim be stayed on such terms as the Court may direct.
(2) When the names of the partners have been declared in compliance with a notice or order given or made under paragraph (1) the proceedings shall continue in the name of the firm but with the same consequences as would have ensued if the persons whose names have been so declared had been named as claimants in the claim form.
(3) Paragraph (1) shall have effect in relation to a claim brought against partners in the name of a firm as it has effect in relation to a claim brought by partners in the name of a firm but with the substitution, for references to the defendant and the claimants, of references to the claimant and the defendants respectively, and with the omission of the words “or may order” to the end.
Acknowledgment of service in a claim against firm
Rule 4. (1) Where persons are sued as partners in the name of their firm, service may not be acknowledged in the name of the firm but only by the partners thereof in their own names, but the claim shall nevertheless continue in the name of the firm.
(2) Where in a claim against a firm the claim form by which the claim is begun is served on a person as a partner, that person, if he denies that he was a partner or liable as such at any material time, may acknowledge service of the claim form and state in his acknowledgment that he does so as a person served as a partner in the defendant firm but who denies that he was a partner at any material time.
An acknowledgment of service given in accordance with this paragraph shall, unless and until it is set aside, be treated as an acknowledgment by the defendant firm.
(3) Where an acknowledgment of service has been given by a defendant in accordance with paragraph (2) then—
(a) the claimant may either apply to the Court to set it aside on the ground that the defendant was a partner or liable as such at a material time or may leave that question to be determined at a later stage of the proceedings;
(b) the defendant may either apply to the Court to set aside the service of the claim form on him on the ground that he was not a partner or liable as such at a material time or may at the proper time serve a defence on the claimant denying in respect of the claimant’s claim either his liability as a partner or the liability of the defendant firm or both.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
276
(4) The Court may at any stage of the proceedings in a claim in which a defendant has acknowledged service in accordance with paragraph (2) on the application of the claimant or of that defendant, order that any question as to the liability of that defendant or as to the liability of the defendant firm be tried in such manner and at such time as the Court directs.
(5) Where in a claim against a firm the claim form by which the claim is begun is served on a person as a person having the control or management of the partnership business, that person may not acknowledge service of the claim form unless he is a member of the firm sued.
Enforcing judgment or order against firm
Rule 5. (1) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6, issue against any property of the firm within the jurisdiction.
(2) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6 and to the next following paragraph, issue against any person who—
(a) acknowledged service of the claim form as a partner, or (b) having been served as a partner with the claim form, failed to acknowledge service of it, or (c) admitted in his statement of case that he is a partner, or (d) was adjudged to be a partner.
(3) Execution to enforce a judgment or order given or made against a firm may not issue against a member of the firm who was out of the jurisdiction when the claim form was issued unless he—
(a) acknowledged service of the claim form as a partner, or (b) was served within the jurisdiction with the claim form as a partner, or (c) was, with the permission of the Court given under Order 11, served out of the jurisdiction
with the claim form, as a partner and, except as provided by paragraph (1) and by the foregoing provisions of this paragraph, a judgment or order given or made against a firm shall not render liable, release or otherwise affect a member of the firm who was out of the jurisdiction when the claim form was issued.
(4) Where a party who has obtained a judgment or order against a firm claims that a person is liable to satisfy the judgment or order as being a member of the firm, and the foregoing provisions of this rule do not apply in relation to that person, that party may apply to the Court for permission to issue execution against that person, the application to be made in accordance with CPR Part 23 and the application notice must be served personally on that person.
(5) Where the person against whom an application under paragraph (4) is made does not dispute his liability, the Court hearing the application may, subject to paragraph (3) give permission to issue execution against that person, and, where that person disputes his liability, the Court may order that the liability of that person be tried and determined in any manner in which any issue or question in a claim may be tried and determined.
Enforcing judgment or order in actions between partners, etc.
Rule 6. (1) Execution to enforce a judgment or order given or made in— (a) a claim by or against a firm in the name of the firm against or by a member of the firm, or (b) a claim by a firm in the name of the firm against a firm in the name of the firm where those
firms have one or more members in common, shall not issue except with the permission of the Court.
(2) The Court hearing an application under this rule may give such directions, including directions as to the taking of accounts and the making of inquiries, as may be just.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
277
Attachment of debts owed by firm
Rule 7. (1) An order may be made under Order 49, rule 1, in relation to debts due or accruing due from a firm carrying on business within the jurisdiction notwithstanding that one or more members of the firm is resident out of the jurisdiction.
(2) An order to show cause under the said rule 1 relating to such debts as aforesaid must be served on a member of the firm within the jurisdiction or on some other person having the control or management of the partnership business.
(3) Where an order made under the said rule 1 requires a firm to appear before the Court, an appearance by a member of the firm constitutes a sufficient compliance with the order.
Application to person carrying on business in another name
Rule 9. An individual carrying on business within the jurisdiction in a name or style other than his own name, may whether or not he is within the jurisdiction be sued in that name or style as if it were the name of a firm, and rules 2 to 8 shall, so far as applicable, apply as if he were a partner and the name in which he carries on business were the name of his firm.
Applications for orders charging partner’s interest in partnership property, etc.
Rule 10. (1) Every application to the Court by a judgment creditor of a partner for an order under section 23 of the Partnership Act 1890(152) (which authorises the High Court or a judge thereof to make certain orders on the application of a judgment creditor of a partner, including an order charging the partner’s interest in the partnership property) and every application to the Court by a partner of the judgment debtor made in consequence of the first mentioned application must be made by claim form.
(2) A Master or the Admiralty Registrar or a district judge may exercise the powers conferred on a judge by the said section 23.
(3) Every claim form issued by a judgment creditor under this rule, and every order made on such a claim form, must be served on the judgment debtor and on such of his partners as are within the jurisdiction or, if the partnership is a cost book company, on the judgment debtor and the purser of the company.
(4) Every claim form issued by a partner of a judgment debtor under this rule, and every order made on such a claim form, must be served—
(a) on the judgment creditor, and (b) on the judgment debtor, and (c) on such of the other partners of the judgment debtor as do not join in the application and
are within the jurisdiction or, if the partnership is a cost book company, on the purser of the company.
(5) A claim form or order served in accordance with this rule on the purser of a cost book company or, in the case of a partnership not being such a company, on some only of the partners thereof, shall be deemed to have been served on that company or on all the partners of that partnership, as the case may be.
(152)1890 c. 39; section 23 was amended by the Statute Law Revision Act 1908 (c. 49); and by the Courts Act 1971 (c. 23), section 56(4), schedule 11, Part II.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
278
RSC ORDER 82 DEFAMATION CLAIMS
Application
Rule 1. These rules apply to claims for libel or slander subject to the following rules of this Order.
Indorsement of claim in libel claim
Rule 2. Before a claim form in a claim for libel is issued it must be indorsed with a statement giving sufficient particulars of the publications in respect of which the claim is brought to enable them to be identified.
Obligation to give particulars
Rule 3. (1) Where in a claim for libel or slander the claimant alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in support of such sense.
(2) Where in a claim for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or states in his statement of case to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.
(2A) Subject to paragraph (2B), where the defendant makes an allegation as described in paragraph (2), the claimant shall serve a reply specifically admitting or denying any such allegation raised by the defendant and specifying any fact or matter upon which he relies in opposition to the defendant’s allegations.
(2B) No reply shall be required under paragraph (2A) where all the facts or matters on which the claimant intends to rely in opposition to the defendant’s allegations as described in paragraph (2) are already particularised elsewhere in the statements of case.
(3) Where in a claim for libel or slander the claimant alleges that the defendant maliciously published the words or matters complained of, he need not in his particulars of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant states in his statement of case that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the claimant intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the fact and matters from which the malice is to be inferred.
(3A) The claimant must give full particulars in the particulars of claim of the facts and matters on which he relies in support of his claim for damages, including details of any conduct by the defendant which it is alleged has increased the loss suffered and of any loss which is peculiar to the claimant’s ’s own circumstances.
(4) This rule shall apply in relation to a counterclaim for libel or slander as if the party making the counterclaim were the claimant and the party against whom it is made the defendant.
Ruling on meaning
Rule 3A. (1) At any time after the service of the particulars of claim either party may apply to a judge sitting in private for an order determining whether or not the words complained of are capable of bearing a particular meaning or meanings attributed to them in the statements of case.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
279
(2) If it appears to the judge on the hearing of an application under paragraph (1) that none of the words complained of are capable of bearing the meaning or meanings attributed to them in the statements of case, he may dismiss the claim or make such other order or give such judgment in the proceedings as may be just.
(3) Subject to paragraph (4), each party to the proceedings may make only one application under paragraph (1).
(4) Where a party has made an application under paragraph (1) and the respondent to that application subsequently amends his statements of case to allege a new meaning, the Court may allow the other party to make a further application under paragraph (1) in relation to that new meaning.
(5) This rule shall apply in relation to a counterclaim for libel or slander as if the party making the counterclaim were the claimant and the party against whom it is made the defendant, and as if the counterclaim were the statement of claim.
Provisions as to payment into Court
Rule 4. (1) Where in a claim for libel or slander against several defendants sued jointly the claimant, in accordance with CPR rule 36.11(1) accepts money paid into court by any of those defendants in satisfaction of his cause of action against that defendant, then, notwithstanding anything in CPR rule 36.17, the claim shall be stayed as against that defendant only, but—
(a) the sum recoverable under any judgment given in the claimant’s favour against any other defendant in the claim by way of damages shall not exceed the amount (if any) by which the amount of the damages exceeds the amount paid into court by the defendant as against whom the claim has been stayed, and
(b) the claimant shall not be entitled to his costs of the claim against the other defendant after the date of the payment into court unless either the amount of the damages awarded to him is greater than the amount paid into court and accepted by him or the judge is of opinion that there was reasonable ground for him to proceed with the claim against the other defendant.
(2) Where in a claim for libel a party in his statement of case relies on the defence for which section 2 of the Libel Act 1843(153), provides, CPR rule 36.19 shall not apply in relation to that statement of case.
Statement in open Court
Rule 5. (1) Where a party wishes to accept money paid into Court in satisfaction of a cause of action for libel or slander, malicious prosecution or false imprisonment, that party may before or after accepting the money apply to a Judge sitting in private in accordance with CPR Part 23 for permission to make in open Court a statement in terms approved by the judge.
(2) Where a party to a claim for libel or slander, malicious prosecution or false imprisonment which is settled before trial desires to make a statement in open Court, an application must be made to the Court for an order that the claim be set down for trial, and before the date fixed for the trial the statement must be submitted for the approval of the Judge before whom it is to be made.
(3) A Judge sitting in private may approve a statement under paragraph (1) or (2) which refers not only to a cause of action mentioned in those paragraphs but also to any other cause of action joined thereto.
(153)1843 (c. 96); section 2 was amended by the Statute Law Revision Act 1891 (c. 67); and by the Statute Law Revision Act 1892 (c. 19).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
280
Further information not allowed in certain cases
Rule 6. In a claim for libel or slander where the defendant states in his statement of case that the words or matters complained of are fair comment on a matter of public interest or were published on a privileged occasion, no further information as to the defendant’s sources of information or grounds of belief shall be allowed.
Fulfilment of offer of amends under s.4 of the Defamation Act 1952(154)
Rule 8. (1) An application to the Court under section 4 of the Defamation Act 1952, to determine any question as to the steps to be taken in fulfilment of an offer of amends made under that section must, unless the application is made in the course of proceedings for libel or slander in respect of the publication to which the offer relates, be made in private in the Queen’s Bench Division, but only a judge may determine such question.
(2) Such an application is to be made by a claim form.
RSC ORDER 85 ADMINISTRATION AND SIMILAR ACTIONS
Interpretation
Rule 1. In this Order “administration claim” means a claim for the administration under the direction of the Court of the estate of a deceased person or for the execution under the direction of the Court of a trust.
Determination of questions, etc., without administration
Rule 2. (1) A claim may be issued for the determination of any question or for any remedy which could be determined or granted, as the case may be, in an administration claim and a claim need not be made for the administration or execution under the direction of the Court of the estate or trust in connection with which the question arises or the remedy is sought.
(2) Without prejudice to the generality of paragraph (1), a claim may be brought for the determination of any of the following questions:—
(a) any question arising in the administration of the estate of a deceased person or in the execution of a trust;
(b) any question as to the composition of any class of persons having a claim against the estate of a deceased person or a beneficial interest in the estate of such a person or in any property subject to a trust;
(c) any question as to the rights or interests of a person claiming to be a creditor of the estate of a deceased person or to be entitled under a will or on the intestacy of a deceased person or to be beneficially entitled under a trust.
(3) Without prejudice to the generality of paragraph (1), a claim may be brought for any of the following remedies:—
(a) an order requiring an executor, administrator or trustee to furnish and, if necessary, verify accounts;
(b) an order requiring the payment into court of money held by a person in his capacity as executor, administrator or trustee;
(154)1952 c. 66.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
281
(c) an order directing a person to do or abstain from doing a particular act in his capacity as executor, administrator or trustee;
(d) an order approving any sale, purchase, compromise or other transaction by a person in his capacity as executor, administrator or trustee;
(e) an order directing any act to be done in the administration of the estate of a deceased person or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed, as the case may be, under the direction of the Court.
Parties
Rule 3. (1) All the executors or administrators of the estate or trustees of the trust, as the case may be, to which an administration claim or such a claim as is referred to in rule 2 relates must be parties to the proceedings, and where the proceedings are made by executors, administrators or trustees, any of them who does not consent to being joined as a claimant must be made a defendant.
(2) Notwithstanding anything in CPR Rule 19.2 and without prejudice to the powers of the Court under that CPR Part, all the persons having a beneficial interest in or claim against the estate or having a beneficial interest under the trust, as the case may be, to which such a claim as is mentioned in paragraph (1) relates need not be parties to the proceedings; but the claimant may make such of those persons, whether all or any one or more of them, parties as, having regard to the nature of the remedy claimed in the proceedings, he thinks fit.
(3) Where, in proceedings under a judgment or order given or made in a claim for the administration under the direction of the Court of the estate of a deceased person, a claim in respect of a debt or other liability is made against the estate by a person not a party to the proceedings, no party other than the executors or administrators of the estate shall be entitled to appear in any proceedings relating to that claim without the permission of the Court, and the Court may direct or allow any other party to appear either in addition to, or in substitution for, the executors or administrators on such terms as to costs or otherwise as it thinks fit.
Judgments and orders in administration claims
Rule 5. (1) A judgment or order for the administration or execution under the direction of the Court of an estate or trust need not be given or made unless in the opinion of the Court the questions at issue between the parties cannot properly be determined otherwise than under such a judgment or order.
(2) Where an administration claim is brought by a creditor of the estate of a deceased person or by a person claiming to be entitled under a will or on the intestacy of a deceased person or to be beneficially entitled under a trust, and the claimant alleges that no or insufficient accounts have been furnished by the executors, administrators or trustees, as the case may be, then, without prejudice to its other powers, the Court may—
(a) order that proceedings be stayed for a period specified in the order and that the executors, administrators or trustees, as the case may be, shall within that period furnish the claimant with proper accounts;
(b) if necessary to prevent proceedings by other creditors or by other persons claiming to be entitled as aforesaid, give judgment or make an order for the administration of the estate to which the claim relates and include therein an order that no proceedings are to be taken under the judgment or order, or under any particular account or inquiry directed, without the permission of the judge in person.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
282
Conduct of sale of trust property
Rule 6. Where in an administration claim an order is made for the sale of any property vested in executors, administrators or trustees, those executors, administrators or trustees, as the case may be, shall have the conduct of the sale unless the Court otherwise directs.
RSC ORDER 87 DEBENTURE HOLDERS' CLAIMS : RECEIVER'S REGISTER
Receiver’s register
Rule 1. Every receiver appointed by the Court in proceedings to enforce registered debentures or registered debenture stock shall, if so directed by the Court, keep a register of transfers of, and other transmissions of title to, such debentures or stock (in this Order referred to as “the receiver’s register”).
Registration of transfers, etc.
Rule 2. (1) Where a receiver is required by rule 1 to keep a receiver’s register, then, on the application made in accordance with CPR Part 23 of any person entitled to any debentures or debenture stock by virtue of any transfer or other transmission of title, and on production of such evidence of identity and title as the receiver may reasonably require, the receiver shall, subject to the following provisions of this rule, register the transfer or other transmission of title in that register.
(2) Before registering a transfer the receiver must, unless the due execution of the transfer is proved by witness statement or affidavit, send by post to the registered holder of the debentures or debenture stock transferred at his registered address a notice stating—
(a) that an application for the registration of the transfer has been made, and (b) that the transfer will be registered unless within the period specified in the notice the holder
informs the receiver that he objects to the registration, and no transfer shall be registered until the period so specified has elapsed. The period to be specified in the notice shall in no case be less than 7 days after a reply from the registered holder would in the ordinary course of post reach the receiver if the holder had replied to the notice on the day following the day when in the ordinary course of post the notice would have been delivered at the place to which it was addressed.
(3) On registering a transfer or other transmission of title under this rule the receiver must indorse a memorandum thereof on the debenture or certificate of debenture stock, as the case may be, transferred or transmitted, containing a reference to the proceedings and to the order appointing him receiver.
Application for rectification of receiver’s register
Rule 3. (1) Any person aggrieved by any thing done or omission made by a receiver under rule 2 may apply in accordance with CPR Part 23 to the Court for rectification of the receiver’s register, the application to be made in the proceedings in which the receiver was appointed.
(2) The copy of the application notice shall in the first instance be served only on the claimant or other party having the conduct of the proceedings but the Court may direct a copy of the application notice to be served on any other person appearing to be interested.
(3) The Court hearing an application under this rule may decide any question relating to the title of any person who is party to the application to have his name entered in or omitted from the
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
283
receiver’s register and generally may decide any question necessary or expedient to be decided for the rectification of that register.
Receiver’s register evidence of transfers, etc.
Rule 4. Any entry made in the receiver’s register, if verified by a witness statement or affidavit made by the receiver or by such other person as the Court may direct, shall in all proceedings in which the receiver was appointed be evidence of the transfer or transmission of title to which the entry relates and, in particular, shall be accepted as evidence thereof for the purpose of any distribution of assets, notwithstanding that the transfer or transmission has taken place after the making of a certificate in the proceedings certifying the holders of the debentures or debenture stock certificates.
Proof of title of holder of bearer debenture, etc.
Rule 5. (1) This rule applies in relation to proceedings to enforce bearer debentures or to enforce debenture stock in respect of which the company has issued debenture stock bearer certificates.
(2) Notwithstanding that judgment has been given in the proceedings and that a certificate has been made therein certifying the holders of such debentures or certificates as are referred to in paragraph (1), the title of any person claiming to be such a holder shall (in the absence of notice of any defect in the title) be sufficiently proved by the production of the debenture or debenture stock certificate, as the case may be, together with a certificate of identification signed by the person producing the debenture or certificate identifying the debenture or certificate produced and certifying the person (giving his name and address) who is the holder thereof.
(3) Where such a debenture or certificate as is referred to in paragraph (1) is produced in Chancery Chambers, the solicitor of the claimant in the proceedings must cause to be indorsed thereon a notice stating—
(a) that the person whose name and address is specified in the notice (being the person named as the holder of the debenture or certificate in the certificate of identification produced under paragraph (2)) has been recorded in Chancery Chambers as the holder of the debenture or debenture stock certificate, as the case may be, and
(b) that that person will, on producing the debenture or debenture stock certificate, as the case may be, be entitled to receive payment of any dividend in respect of that debenture or stock unless before payment a new holder proves his title in accordance with paragraph (2), and
(c) that if a new holder neglects to prove his title as aforesaid he may incur additional delay, trouble and expense in obtaining payment.
(4) The solicitor of the claimant in the proceedings must preserve any certificates of identification produced under paragraph (2) and must keep a record of the debentures and debenture stock certificates so produced and of the names and addresses of the persons producing them and of the holders thereof, and, if the Court requires it, must verify the record by witness statement or affidavit.
Requirements in connection with payments
Rule 6. (1) Where in proceedings to enforce any debentures or debenture stock an order is made for payment in respect of the debentures or stock, the Accountant-General shall not make a payment in respect of any such debenture or stock unless either there is produced to him the certificate for which paragraph (2) provides or the Court has in the case in question for special reason dispensed with the need for the certificate and directed payment to be made without it.
(2) For the purpose of obtaining any such payment the debenture or debenture stock certificate must be produced to the solicitor of the claimant in the proceedings or to such other person as the Court may direct, and that solicitor or other person must indorse thereon a memorandum of payment and must make and sign a certificate certifying that the statement set out in the certificate has been
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
284
indorsed on the debenture or debenture stock certificate, as the case may be, and send the certificate to the Accountant-General.
RSC ORDER 88 MORTGAGE CLAIMS
Application and Interpretation
Rule 1. (1) This Order applies to any claim by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being a claim in which there is a claim for any of the following remedies, namely—
(a) payment of moneys secured by the mortgage, (b) sale of the mortgaged property, (c) foreclosure, (d) delivery of possession (whether before or after foreclosure or without foreclosure) to the
mortgagee by the mortgagor or by any other person who is or is alleged to be in possession of the property,
(e) redemption, (f) reconveyance of the property or its release from the security, (g) delivery of possession by the mortgagee.
(2) In this Order “mortgage” includes a legal and an equitable mortgage and a legal and an equitable charge, and references to a mortgagor, a mortgagee and mortgaged property shall be construed accordingly.
(3) A claim to which this Order applies is referred to in this Order as a mortgage claim. (4) These rules apply to mortgage claims subject to the following provisions of this Order.
Assignment of certain actions to Chancery Division
Rule 2. Without prejudice to section 61 (1) of the Act (which provides for the assignment to the Chancery Division of proceedings for the purposes, among others, of the redemption or foreclosure of mortgages and the sale and distribution of the proceeds of property subject to any lien or charge) any claim in which there is a claim for—
(a) payment of moneys secured by a mortgage of any real or leasehold property, or (b) delivery of possession (whether before or after foreclosure) to the mortgagee of any such
property by the mortgagor or by any other person who is or is alleged to be in possession of the property,
shall be assigned to the Chancery Division.
Commencement of claim
Rule 3. (1) A claim form by which a mortgage claim is begun may not be issued out of a district registry, which is not a Chancery district registry, unless the mortgaged property is situated in the district of the registry.
(3) The claim form by which a mortgage claim is begun shall be indorsed with or contain a statement showing—
(a) where the mortgaged property is situated, and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
285
(b) if the claimant claims possession of the mortgaged property and it is situated outside Greater London, whether the property consists of or includes a dwelling house,
and a certificate that the claim is not one to which section 141 of the Consumer Credit Act 1974(155) applies.
Claim for possession: failure by a defendant to acknowledge service
Rule 4. (1) Where in a mortgage claim in the Chancery Division being a claim in which the claimant is the mortgagee and claims delivery of possession or payment of moneys secured by the mortgage or both, any defendant fails to acknowledge service of the claim form, the following provisions of this rule shall apply, and references in those provisions to the defendant shall be construed as references to any such defendant.
(2) Not less than 4 clear days before the day fixed for the first hearing of the claim the claimant must serve on the defendant a copy of the notice of appointment for the hearing and a copy of the witness statement or affidavit in support of the claim.
(4) Where the hearing is adjourned, then, subject to any directions given by the Court, the claimant must serve notice of the appointment for the adjourned hearing, together with a copy of any further witness statement or affidavit intended to be used at that hearing, on the defendant not less than 2 clear days before the day fixed for the hearing.
(5) Service under paragraph (2) or (4) and the manner in which it was effected, may be proved by a certificate signed by the claimant, if he sues in person, and otherwise by his solicitor.
The certificate may be indorsed on the witness statement or affidavit in support of the claim or, as the case may be, on any further witness statement or affidavit intended to be used at an adjourned hearing.
(6) A copy of any exhibit to a witness statement or affidavit need not accompany the copy of the witness statement or affidavit served under paragraph (2) or (4).
Claim in Chancery Division for possession or payment: evidence
Rule 5. (1) The witness statement or affidavit in support of the claim (other than a claim to which rule 5A applies) to which this rule applies is begun must comply with the following provisions of this rule.
This rule applies to a mortgage claim in the Chancery Division in which the claimant is the mortgagee and claims delivery of possession or payment of moneys secured by the mortgage or both.
(2) The witness statement or affidavit must exhibit a true copy of the mortgage and the original mortgage or, in the case of a registered charge, the charge certificate must be produced at the hearing of the claim.
(2A) Unless the Court otherwise directs the witness statement or affidavit may contain statements of information or belief with the sources and grounds thereof.
(3) Where the claimant claims delivery of possession the witness statement or affidavit must show the circumstances under which the right to possession arises and, except where the Court in any case or class of case otherwise directs, the state of the account between the mortgagor and mortgagee with particulars of—
(a) the amount of the advance, (b) the amount of the periodic payments required to be made,
(155)1974 c. 39.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
286
(c) the amount of any interest or instalments in arrear at the date of issue of the claim form and at the date of the witness statement or affidavit, and
(d) the amount remaining due under the mortgage. (4) Where the claimant claims delivery of possession the witness statement or affidavit must—
(a) give particulars of every person who to the best of the claimant’s knowledge is in possession of the mortgaged property; and
(b) state, in the case of a dwelling house, whether— (i) a land charge of Class F has been registered, or a notice or caution registered
under s.2 (7) of the Matrimonial Homes Act 1967(156) or a notice registered under section 2 (8) of the Matrimonial Homes Act 1983(157) has been entered, and, if so, on whose behalf; and
(ii) he has served notice of the proceedings on the person on whose behalf the land charge is registered or the notice or caution entered.
(5) If the mortgage creates a tenancy other than a tenancy at will between the mortgagor and mortgagee, the witness statement or affidavit must show how and when the tenancy was determined and if by service of notice when the notice was duly served.
(6) Where the claimant claims payment of money secured by the mortgage the witness statement or affidavit must show how the claim is calculated including—
(a) the amount of the advance and the amount and dates of any periodic repayments and any interest claimed;
(b) the amount which would have to be paid (after taking into account any adjustment for early settlement) in order to redeem the mortgage at the date of commencement of the proceedings and at a stated date not more than 14 days after the date of commencement of the proceedings, specifying the amount of the solicitor’s costs and administrative charges which would be payable;
(c) the dates between which a particular rate of interest applied, the number of days in that period, and the capital on which the interest was calculated.
(7) Where the claimant’s claim includes a claim for interest to judgment, the witness statement or affidavit must state the amount of a day’s interest.
Claim for the enforcement of charging order by sale
Rule 5A. (1) This rule applies to a mortgage claim in the Chancery Division to enforce a charging order by sale of the property charged.
(2) The witness statement or affidavit in support of the claim must— (a) identify the charging order sought to be enforced and the subject matter of the charge; (b) specify the amount in respect of which the charge was imposed and the balance outstanding
at the date of the witness statement or affidavit; (c) verify, so far as known, the debtor’s title to the property charged; (d) identify any prior incumbrancer on the property charged stating, so far as is known, the
names and addresses of the incumbrancers and the amounts owing to them; (e) set out the claimant’s proposals as to the manner of sale of the property charged together
with estimates of the gross price which would be obtained on a sale in that manner and of the costs of such a sale; and
(156)1967 c. 75. (157)1983 c. 19.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
287
(f) where the property charged consists of land in respect of which the claimant claims delivery of possession—
(i) give particulars of every person who to the best of the claimant’s knowledge is in possession of the property charged or any part of it; and
(ii) state, in the case of a dwelling house, whether a land charge of Class F has been registered, or a notice or caution pursuant to section 2 (7) of the Matrimonial Homes Act 1967, or a notice pursuant to section 2 (8) of the Matrimonial Homes Act 1983 has been entered and, if so, on whose behalf, and whether he has served notice of the proceedings on the person on whose behalf the land charge is registered or the notice or caution entered.
Foreclosure in redemption claim
Rule 7. Where foreclosure has taken place by reason of the failure of the claimant in a mortgage claim for redemption to redeem, the defendant in whose favour the foreclosure has taken place may apply in accordance with CPR Part 23 for an order for delivery to him of possession of the mortgaged property, and the Court may make such order thereon as it thinks fit.
RSC ORDER 91 REVENUE PROCEEDINGS
Assignment to Chancery Division, etc.
Rule 1. The following proceedings, namely— (a) any case stated for the opinion of the High Court under—
(i) section 13 of the Stamp Act 1891(158), or (ii) section 705A of the Income and Corporation Taxes Act 1988(159), or
(iii) regulation 22 of the General Commissioners (Jurisdiction and Procedure) Regulations 1994(160);
(b) any appeal to the High Court under— (i) section 53, 56A or 100C (4) of the Taxes Management Act 1970(161), or
(ii) section 222 (3), 225, 249 (3) or 251 of the Inheritance Tax Act 1984(162), or (iii) regulation 8 (3) or 10 of the Stamp Duty Reserve Tax Regulations 1986(163);
(c) any application for permission to appeal under the said section 222 (3) or the said regulation 8 (3); and
(d) proceedings to which the provisions of section 56A of the Taxes Management Act 1970(164) apply under any enactment or regulation,
shall be assigned to the Chancery Division and heard and determined by a single judge.
(158)1891 c. 39; section 13 was amended by the Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36), section 10(3), schedule 3.
(159)1988 c. 1; section 705A was inserted by S.I. 1994/1813. (160)S.I. 1994/1812. (161)1970 c. 9; sections 53 and 56A were substituted by S.I. 1994/1813. Section 100C was inserted by the Finance Act 1989 (c. 26). (162)1984 c. 51; sections 225 and 251 were substituted by S.I. 1994/1813. (163)S.I. 1986/1711. (164)1970 c. 9; section 56A was substituted by S.I. 1994/1813.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
288
Appeal under section 222 of the Inheritance Tax Act 1984(165)
Rule 2. (1) Order 55 shall not apply in relation to an appeal to the High Court under section 222 (3) of the Inheritance Tax Act 1984 or Regulation 8 (3) of the Stamp Duty Reserve Tax Regulations 1986.
(2) Such an appeal must be brought by a notice of appeal which must— (a) state the date on which the Commissioners of Inland Revenue (in this rule referred to as the
“Board”) gave notice to the appellant under section 221 of the said Act(166) or Regulation 6 of the said Regulations of the determination which is the subject of the appeal;
(b) state the date on which the appellant gave to the Board notice of appeal under section 222 (1) of the said Act, or Regulation 8 (1) of the said Regulations and, if the notice was not given within the time limited, whether the Board or the Special Commissioners have given consent to the appeal being brought out of time and if they have, the date on which it was given; and
(c) either state that the appellant and the Board have agreed that the appeal may be to the High Court or contain an application for permission to appeal to the High Court.
(3) At the time of issuing the notice of appeal the appellant shall file in Chancery Chambers— (a) two copies of the notice referred to in paragraph (2)(a); (b) two copies of the notice of appeal (under section 222 (1) of the said Act, or Regulation 8
(1) of the said Regulations) referred to in paragraph (2)(b); and (c) where the notice of appeal contains an application for permission to appeal, a witness
statement or affidavit setting out the grounds on which it is alleged that the matters to be decided on the appeal are likely to be substantially confined to questions of law.
(4) The notice of appeal must be issued and served on the Board within 30 days of the date on which the appellant gave to the Board notice of appeal under section 222 (1) of the said Act or Regulation (8)(1) of the said Regulations or, if the Board or the Special Commissioners have given consent to the appeal being brought out of time, within 30 days of the date on which such consent was given.
(5) The notice of appeal, must specify a date of hearing being not less than 40 days from the issue of the notice of appeal.
(6) Where the notice of appeal contains an application for permission to appeal to the High Court, a copy of the witness statement or affidavit lodged pursuant to paragraph (3)(c) shall be served on the Board with the notice of appeal and the Board may, within 30 days after service, file in the judge’s chambers a witness statement or affidavit in answer and a copy of any such witness statement or affidavit shall be served by the Board on the appellant.
(7) Except with the permission of the Court, the appellant shall not be entitled on the hearing of an appeal to rely on any grounds of appeal not specified in the notice referred to in paragraph (2)(b).
Setting down case stated under Taxes Management Act 1970
Rule 3. (1) At any time after a case stated under section 705A of the Income and Corporation Taxes Act 1988 or Regulation 22 of the General Commissioners (Jurisdiction and Procedure) Regulations 1994 has been filed in Chancery Chambers either party may set down the case for hearing.
(2) On setting down the case the party who sets it down must give notice to the other party that he has done so.
(165)1984 c. 51. (166)Section 221 was amended by the Finance Act 1985 (c. 54), section 94, schedule 26, paragraph 5.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
289
Case stated: notice to be given of certain matters
Rule 4. Not less than 10 days before the hearing of such a case as is mentioned in rule 1 (a) either party must give notice to the other of any point which he intends to take at the hearing and which might take the other party by surprise and leave at Chancery Chambers two copies of the notice for the use of the Court.
Appeals under section 53 and 100C (4) of the Taxes Management Act 1970
Rule 5. (1) The notice of appeal by which an appeal under section 53 or 100C (4) of the Taxes Management Act 1970 or section 249 (3) or 251 of the Inheritance Tax Act 1984 is brought must be issued out of Chancery Chambers.
(2) Order 55, rule 3 (2), shall apply in relation to the notice of appeal as if the decision, award or determination appealed against were the decision of a court.
(3) The persons to be served with the notice are the General or Special Commissioners against whose decision, award or determination the appeal is brought and—
(a) in the case of an appeal brought under section 100C (4) of the Taxes Management Act 1970 or section 249 (3) of the Inheritance Tax Act 1984 by any party other than the defendant in the proceedings before the Commissioners, that defendant;
(b) in any other case, the Commissioners of Inland Revenue. (4) Order 55, rules 4 (2) and 5, shall apply in relation to any such appeal as if for the period
of 28 days and 21 days therein specified there were substituted a period of 30 days and 35 days respectively.
(5) Within 30 days after the service on them of the notice by which any such appeal is brought, the General or Special Commissioners, as the case may be, must file in Chancery Chambers two copies of a note of their findings and of the reasons for their decision, award or determination and must serve a copy of the note on every other party to the appeal.
(6) Any document required or authorised to be served on the General or Special Commissioners in proceedings to which this rule relates may be served by delivering or sending it to their clerk.
(7) Order 57 shall not apply to proceedings to which this rule applies.
Appeals under section 56A of the Taxes Management Act 1970, section 225 of the Inheritance Tax Act 1984 and regulation 10 of the Stamp Duty Reserve Tax Regulations 1986
Rule 5A. (1) This rule applies to appeals under section 56A of the Taxes Management Act 1970, section 225 of the Inheritance Tax Act 1984 and regulation 10 of the Stamp Duty Reserve Tax Regulations 1986.
(2) The notice of appeal by which such an appeal is brought must be issued out of Chancery Chambers.
(3) Order 55, rule 3 (2) shall apply in relation to the notice of appeal as if the decision or determination appealed against were the decision of a court.
(4) Order 55, rule 4 (2) shall apply in relation to such an appeal as if for the period of 28 days specified in that rule there were substituted a period of 56 days, except where the appeal is made following the refusal of the Special Commissioners to issue a certificate under section 56A (2)(b) of the Taxes Management Act 1970 or the refusal of permission to appeal to the Court of Appeal under section 56A (2)(c) of that Act.
(5) Where the appeal is made following the refusal of the Special Commissioners to issue a certificate under section 56A (2)(b) of the Taxes Management Act 1970, the period of 28 days
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
290
specified in Order 55, rule 4 (2) shall be calculated from the date of the release of the decision of the Special Commissioners containing the refusal.
(6) Where the appeal is made following the refusal of permission to appeal to the Court of Appeal under section 56A (2)(c) of the Taxes Management Act 1970, the period of 28 days specified in Order 55, r.4 (2) shall be calculated from the date when permission is refused.
(7) Order 57 shall not apply to proceedings to which this rule applies.
Appeals from value added tax tribunals
Rule 6. (1) A party to proceedings before a value added tax tribunal who is dissatisfied in point of law with a decision of the tribunal may appeal under section 11 (1) of the Tribunals and Inquiries Act 1992(167) to the High Court and Order 94, rule 9 shall not apply in relation to such an appeal.
(2) Such an appeal shall be heard and determined by a single judge of the Queen’s Bench Division or, where both parties consent, by a single judge of the Chancery Division.
(3) Order 55, rule 4 (2) shall apply in relation to any such appeal as if for the period of 28 days specified in that rule there were substituted a period of 56 days, except where the appeal is made following the refusal of the Value Added Tax Tribunal to grant a certificate under article 2 (b) of the Value Added Tax Tribunal Appeals Order 1986(168).
(3A) Where the tribunal has refused to grant a certificate under article 2 (b) of the Value Added Tax Tribunal Appeals Order 1986, the 28 day period mentioned in Order 55, rule 4 (2) shall be calculated from the date of the release of the decision of the tribunal containing the refusal.
(4) This rule is without prejudice to the right of the parties to appeal direct to the Court of Appeal in accordance with Order 59, rule 22.
RSC ORDER 92 LODGMENT, INVESTMENT, ETC., OF
FUNDS IN COURT: CHANCERY DIV ISION
Payment into court by life assurance company
Rule 1. (1) A company wishing to make a payment into court under the Life Assurance Companies (Payment into Court) Act, 1896(169) (hereinafter referred to as “the Act of 1896”) must file a witness statement or affidavit, made by its secretary or other authorised officer, setting out—
(a) a short description of the policy in question and a statement of the persons entitled thereunder with their names and addresses so far as known to the company,
(b) a short statement of the notices received by the company claiming an interest in or title to the money assured, or withdrawing any such claim, with the dates of receipt thereof and the names and addresses of the persons by whom they were given,
(c) a statement that, in the opinion of the board of directors of the company, no sufficient discharge can be obtained otherwise than by payment into court under the Act of 1896,
(d) the submission by the company to pay into court such further sum, if any, as the Court may direct and to pay any costs ordered by the Court to be paid by the company,
(167)1992 c. 53; section 11(1) was amended by the Education Act 1993 (c. 35) section 181(2); the Sea Fish Conservation Act 1992 (c. 60), section 9; and by the Education Act 1996 (c. 56), section 582(1), schedule 37, Part 1, paragraph 118.
(168)S.I. 1986/2288. (169)1896 c. 8.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
291
(e) an undertaking by the company forthwith to send to the Accountant General any notice of claim received by the company after the making of the witness statement or affidavit with a letter referring to the title of the witness statement or affidavit, and
(f) an address where the company may be served with any application, claim form, court order, or notice of any proceedings, relating to the money paid into court.
(2) The company shall not deduct from the money payable by them under the policy any costs of or incidental to the payment into court.
(3) No payment shall be made into court under the Act of 1896 where any proceedings to which the company is a party are pending in relation to the policy or moneys thereby assured except with the leave of the Court to be obtained by an application made in accordance with CPR Part 23.
(4) Unless the Court otherwise directs, a CPR Part 23 application by which a claim with respect to money paid into court under the Act of 1896 is made shall not, except where the application includes an application for payment of a further sum of costs by the company who made the payment, be served on that company, but it must be served on every person who appears by the witness statement or affidavit on which the payment into court was made to be entitled to, or interested in, the money in court or to have a claim upon it or who has given a notice of claim which has been sent to the Accountant General in accordance with the undertaking referred to in rule 1 (1)(e).
Payment into court under Trustee Act 1925
Rule 2. (1) Subject to paragraph (2) any trustee wishing to make a payment into court under section 63 of the Trustee Act 1925(170), must make and file a witness statement or affidavit setting out—
(a) a short description of the trust and of the instrument creating it or, as the case may be, of the circumstances in which the trust arose,
(b) the names of the persons interested in or entitled to the money or securities to be paid into court with their addresses so far as known to him,
(c) his submission to answer all such inquiries relating to the application of such money or securities as the Court may make or direct, and
(d) an address where he may be served with any application notice or order, or notice of any proceedings, relating to the money or securities paid into court.
(2) Where the money or securities represents a legacy, or residue or any share thereof, to which an child or a person resident outside the United Kingdom is absolutely entitled, no witness statement or affidavit need be filed under paragraph (1) and the money or securities may be paid into court in the manner prescribed by the Supreme Court Funds Rules for the time being in force.
Payments into court under section 26, Banking Act 1987
Rule 3A. Where the Bank of England, having sold shares in pursuance of an order under section 26 of the Banking Act 1987(171), pays the proceeds of sale, less the costs of the sale, into court, it shall cause a witness statement or affidavit to be made and filed setting out the names and, so far as known, the addresses of the persons beneficially entitled to the proceeds of sale and shall file a copy of the order.
Notice of lodgment
Rule 4. Any person who has lodged money or securities in court in accordance with rule 1, 2, or 3A must forthwith send notice of the lodgment to every person appearing from the witness statement
(170)1925 c. 19; section 63 was amended by the Administration of Justice Act 1965 (c. 2), section 36(4), schedule 3. (171)1987 c. 22; section 26 was amended by the Bank of England Act 1998 (c. 11), section 23(1), schedule 5, paragraphs 1,9.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
292
or affidavit on which the lodgment was made to be entitled to, or to have an interest in, the money or securities lodged.
Applications with respect to funds in court
Rule 5. (1) Where an application to the High Court— (a) for the payment or transfer to any person of any funds in court standing to the credit of
any cause or matter or for the transfer of any such funds to a separate account or for the payment to any person of any dividend of or interest on any securities or money comprised in such funds;
(b) for the investment, or change of investment, of any funds in court; (c) for payment of the dividends of or interest on any funds in court representing or comprising
money or securities lodged in court under any enactment; or (d) for the payment or transfer out of court of any such funds as are mentioned in sub-
paragraph (c), is made in the Chancery Division the application may be disposed of by the court sitting in private.
(2) Subject to paragraph (3), any such application made in the Chancery Division must be made by the issue of a claim form, unless the application is made in pending proceedings or an application for the same purpose has previously been made by such a claim form.
(3) Where an application under paragraph (1)(d) is required to be made by a claim form, then, if the funds to which the application relates do not exceed £15,000 in value, and subject to paragraph (4), the application may be made to the chief master, or to such master as he may designate, and the master may dispose of the application or may direct it to be made by a claim form.
Unless otherwise directed, an application under this paragraph shall be made by witness statement or affidavit, and need not be served on any other person.
(4) Where the application to which paragraph (3) applies relates to funds lodged in court in a Chancery district registry, the application may be made to, and the power conferred by paragraph (3) on a master may be exercised by, the district judge of that registry.
(5) This rule does not apply to any application for an order under CPR Part 36 and CPR Part 37.
RSC ORDER 93 APPLICATIONS AND APPEALS TO HIGH COURT UNDER VARIOUS ACTS: CHANCERY DIVISION
Notice of petition under section 55 of National Debt Act 1870(172)
Rule1. Where a petition is presented under section 55 of the National Debt Act, 1870, the petitioner must, before the petition is heard, apply to a judge of the Chancery Division sitting in private for directions with respect to giving notice of the claim to which the petition relates, and the judge may direct that notice thereof be given by advertisement or in such other manner as he may direct or may dispense with the giving of such notice.
(172)1870 c. 71.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
293
Application under Public Trustee Act 1906(173)
Rule 2. Without prejudice to sections 10 (2) and 13 (7) of the Public Trustee Act, 1906, the jurisdiction of the High Court under that Act shall be exercised by a judge of the Chancery Division sitting in private.
Proceedings under Trustee Act 1925(174)
Rule 4. All proceedings brought in the High Court under the Trustee Act, 1925, shall be assigned to the Chancery Division.
Application under section 2(3) of Public Order Act 1936(175)
Rule 5. (1) Proceedings by which an application is made to the High Court under section 2 (3) of the Public Order Act 1936, shall be assigned to the Chancery Division.
(2) Such an application shall be made by claim form and the persons to be made defendants to the claim shall be such persons as the Attorney-General may determine.
(3) In the absence of other sufficient representation the Court may appoint the official solicitor to represent any interests which in the opinion of the Court ought to be represented on any inquiry directed by the Court under the said section 2 (3).
Application under Variation of Trusts Act 1958(176)
Rule 6. (1) Proceedings by which an application is made to the High Court under section 1 of the Variation of Trusts Act 1958, shall be assigned to the Chancery Division.
(2) Such an application shall be made by claim form and in addition to any other persons who are necessary and proper defendants to the claim, the settlor and any other person who provided property for the purposes of the trusts to which the application relates must, if still alive and not the claimant, be made a defendant unless the Court for some special reason otherwise directs.
Right of appeal under Law of Property Act
Rule 9. An appeal shall lie to the High Court against a decision of the Minister of Agriculture, Fisheries and Food under paragraph 16 of Schedule 15 to the Law of Property Act 1922(177).
Determination of appeal or case stated under various Acts
Rule 10. (1) An appeal to the High Court against an order of a county court made under the Land Registration Act 1925(178), shall be heard and determined by a Divisional Court of the Chancery Division.
(2) Subject to paragraph (1) any appeal to the High Court, and any case stated or question referred for the opinion of that Court, under any of the following enactments, that is to say—
(c) paragraph 16 of Schedule 15 to the Law of Property Act 1922(179), (d) the Industrial Assurance Act 1923(180),
(173)1906 c. 55. (174)1925 c. 19. (175)1936 c. 2. (176)1958 c. 53. (177)1922 c. 16; Paragraph 16 was amended by the Law of Property (Amendment) Act 1924 (c. 5), section 2, schedule 2. (178)1925 c. 21. (179)1922 c. 16. (180)1923 c. 8.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
294
(f) the Land Registration Act 1925(181), (g) section 205(4) of the Water Resources Act 1991(182), (j) section 38 (3) of the Clergy Pensions Measure 1961(183),
(m) the Industrial and Provident Societies Act 1965(184), (n) section 173 of the Pension Schemes Act 1993(185), (o) section 151 of the Pension Schemes Act 1993
shall be heard and determined by a single judge of the Chancery Division. (3) No appeal shall lie from the decision of the Court on an appeal under any of the enactments
mentioned in paragraph (2)(c), (f) or (o) except with the permission of the Court or the Court of Appeal.
Appeal under section 17 of Industrial Assurance Act 1923(186)
Rule11. (1) An application to the judge for permission to appeal to the High Court against a direction of the Commissioner under section 17 (3) of the Industrial Assurance Act 1923 must be made within 21 days after the date of the Commissioner’s refusal or direction.
(2) An application for the grant of such permission must be made in private without notice being served on any other party by a witness statement or affidavit stating the material facts, the effect of the Commissioner’s refusal or direction, the grounds on which the application is made and that the witness is advised and believes that the applicant has good grounds for appealing.
(3) No order under this rule granting permission to appeal shall be drawn up but the court officer shall indorse on the notice of appeal by which the appeal is brought a note signed by him stating that permission to appeal was granted by the Court and the date on which it was granted. A copy of such note shall appear on any copy of such notice served on a respondent to the appeal.
(4) Order 55, rule 4 (2) shall not apply in relation to an appeal with respect to which permission has been granted under this rule, but the notice of appeal by which the appeal is brought must be served, and the appeal entered, within 28 days after permission to appeal was granted.
Appeals, etc., affecting industrial and provident societies, etc.
Rule12. (1) At any stage of the proceedings on an appeal under— (a) the Friendly Societies Act 1896(187) or the Friendly Societies Act 1974(188), (c) the Industrial Assurance Act 1923(189), or (e) the Industrial and Provident Societies Act 1965(190),
the Court may direct that the notice of appeal by which the appeal is brought be served on any person or may direct that notice be given by advertisement or otherwise of the bringing of the appeal, the nature thereof and the time when it will or is likely to be heard or may give such other directions as it thinks proper for enabling any person interested in the society, trade union, alleged trade union
(181)1925 c. 21. (182)1991 c. 57. (183)1961 No.3. (184)1965 c. 12. (185)1993 c. 48. (186)1923 c. 8; section 17 was amended by the Friendly Societies Act 1971 (c. 66), sections 5(5), 14(2), schedule 3 and by
the Friendly Societies Act 1992 (c. 40), section 100, schedule 19, Part I, paragraphs 1, 5 and 6. (187)1896 c. 25. (188)1974 c. 66. (189)1923 c. 8. (190)1965 c. 12.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
295
or industrial assurance company concerned or in the subject-matter of the appeal to appear and be heard on the appeal.
(2) An application for directions under paragraph (1) may be made by either party to the appeal in accordance with CPR Part 23 returnable at Chancery Chambers.
Application under section 19 or 27 of Leasehold Reform Act 1967(191)
Rule 15. Proceedings by which an application is made to the High Court under section 19 or 27 of the Leasehold Reform Act 1967 shall be assigned to the Chancery Division.
Proceedings under the Commons Registration Act 1965(192)
Rule16. (1) Proceedings in the High Court under section 14 or 18 of the Commons Registration Act 1965 shall be assigned to the Chancery Division.
(2) The time within which a person aggrieved by the decision of a Commons Commissioner may require the Commissioner to state a case for the opinion of the High Court pursuant to the said section 18 shall be six weeks from the date on which notice of the decision was sent to the person aggrieved.
(3) An appeal by way of case stated under the said section 18 shall be heard and determined by a single judge.
Proceedings under section 21 or 25 of the Law of Property Act 1969(193)
Rule 17. Proceedings in the High Court under section 21 or 25 of the Law of Property Act 1969 shall be assigned to the Chancery Division.
Proceedings under section 86 of the Civil Aviation Act 1982(194)
Rule 18. (1) Proceedings in the High Court for the amendment of any register of aircraft mortgages kept pursuant to an Order in Council made under section 86 of the Civil Aviation Act 1982 shall be assigned to the Chancery Division.
(2) Such proceedings shall be brought by claim form and every person, other than the claimant, appearing in the register as mortgagee or mortgagor of the aircraft in question shall be made a defendant to the claim.
(3) A copy of the claim form shall also be sent to the Civil Aviation Authority and the Authority shall be entitled to be heard in the proceedings.
Proceedings under s.85 (7) of the Fair Trading Act 1973(195) and the Control of Misleading Advertisements Regulations 1988(196)
Rule 19. (1) Proceedings to which this rule applies shall be assigned to the Chancery Division and may be begun by claim form.
(191)1967 c. 88; section 19 was amended by the Local Land Charges Act 1975 (c. 76), section 17(2), schedule 1. (192)1965 c. 65. (193)1969 c. 59; section 25 was amended by the Limitation Act 1980 (c. 58), section 40(2), schedule 3, paragraph 9; and by
the Land Charges Act 1972 (c. 61), section 18, schedule 5. (194)1982 c. 16; section 86 was amended by the Merchant Shipping Act 1995 (c. 21), section 314(2), schedule 13,
paragraph 64. (195)1973 c. 41. (196)S.I. 1988/915.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
296
(2) This rule applies to any application to the High Court for an order under s.85 (7) of the Fair Trading Act 1973, or under any provision to which that section applies or under the Control of Misleading Advertisements Regulations 1988.
Proceedings under section 50 of the Administration of Justice Act 1985(197)
Rule 20. (1) Proceedings by which an application is made to the High Court under section 50 of the Administration of Justice Act 1985 for an order appointing a substituted personal representative or terminating the appointment of an existing personal representative shall be assigned to the Chancery Division.
(2) An application under the said section 50 shall be made by claim form or, if it is made in existing proceedings, by an application in accordance with CPR Part 23.
(3) All the existing personal representatives and, subject to any direction of the Court, such of the persons having a beneficial interest in the estate as the claimant thinks fit, must be made parties to the application.
(4) Such an application must be supported by: (a) a sealed or certified copy of the grant of probate or letters of administration, and (b) a witness statement or affidavit containing the grounds of the application and the following
particulars so far as the claimant can gain information with regard to them:— (i) short particulars of the property comprised in the estate, with an approximate
estimate of its income, and capital value; (ii) short particulars of the liabilities of the estate;
(iii) particulars of the persons who are in possession of the documents relating to the estate;
(iv) the names of the beneficiaries and short particulars of their respective interests; and (v) the name, address and occupation of any proposed substituted personal
representative; (c) where the application is for the appointment of a substituted personal representative:—
(i) a signed or (in the case of the Public Trustee or a corporation) sealed consent to act, and
(ii) a witness statement or affidavit as to the fitness of the proposed substituted personal representative, if an individual, to act.
(5) On the hearing of an application under the said section 50 the personal representative shall produce to the Court the grant of representation to the deceased’s estate and, if an order is made under the said section, the grant (together with a sealed copy of the order) shall be sent to and remain in the custody of the principal registry of the Family Division until a memorandum of the order has been endorsed on or permanently annexed to the grant.
Proceedings under section 48 of the Administration of Justice Act 1985
Rule 21. Proceedings by which an application is made to the High Court under section 48 of the Administration of Justice Act 1985 shall be assigned to the Chancery Division and shall be begun by claim form but the claim need not be served on any other party.
(197)1985 c. 61.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
297
Proceedings under the Financial Services Act 1986(198)
Rule 22. (1) In this rule “the Act” means the Financial Services Act 1986 and a section referred to by number means the section so numbered in that Act.
(2) Proceedings in the High Court under the Act (other than application for mandamus) and actions for damages for breach of a statutory duty imposed by the Act shall be assigned to the Chancery Division.
(3) Such proceedings and actions shall be begun by claim form except for applications by petition by the Secretary of State or a designated agency under section 72.
(4) No order shall be made under sections 6, 61, 71, 91, 104, 131, 184 or paragraph 22 of Schedule 11 against any person unless he is a party to the relevant proceedings.
Where there is a question of the construction of any of the rules or regulations referred to in section 61 (1)(a) of the Act, the Secretary of State, designated agency, or any person referred to in section 61 (1)(a)(iv) may make representations to the Court.
Proceedings under the Banking Act 1987(199)
Rule 23. (1) In this rule “the Act” means the Banking Act 1987 and a section referred to by number means the section so numbered in the Act.
(2) Proceedings in the High Court under the following sections of the Act shall be assigned to the Chancery Division and shall be begun—
(a) as to applications under section 26 (3), 71 (3) and (5) and 77 (3) and (5), by claim form; (b) as to appeals under section 31 (1), by notice of appeal; (c) as to applications under sections 48 (1), 49 (1) and 93 (1) and (2), by claim form.
(3) No order shall be made under section 48 (1) against any person unless he is a party to the proceedings.
(4) Where an application has been made under section 71 (3) or (5) or section 77 (3) or (5) the Bank of England shall within 28 days after service on it of copies of the claimant’s witness statement or affidavit evidence cause a witness statement or affidavit to be made, filed and served on the claimant setting out the reasons for its objection to the claimant’s name.
RSC ORDER 94 APPLICATIONS AND APPEALS TO HIGH COURT
UNDER VARIOUS ACTS: QUEEN'S BENCH DIVISION
Jurisdiction of High Court to quash certain orders, schemes, etc.
Rule 1. (1) Where by virtue of any enactment the High Court has jurisdiction, on the application of any person, to quash or prohibit any order, scheme, certificate or plan, any amendment or approval of a plan, any decision of a Minister or government department or any action on the part of a Minister or government department, the jurisdiction shall be exercisable by a single judge of the Queen’s Bench Division.
(2) The application must be made by claim form which must state the grounds of the application.
(198)1986 c. 60. (199)1987 c. 22.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
298
Filing and service of claim form
Rule 2. (1) A claim form under rule 1 must be filed at the Crown Office, and served, within the time limited by the relevant enactment for making the application.
(2) Subject to paragraph (4) the claim form must be served on the appropriate Minister or government department, and—
(a) if the application relates to a compulsory purchase order made by an authority other than the appropriate Minister or government department, or to a clearance order under the Housing Act 1985(200), on the authority by whom the order was made;
(b) if the application relates to a scheme or order to which Schedule 2 to the Highways Act 1980(201), applies made by an authority other than the Secretary of State, on that authority;
(c) if the application relates to a structure plan, local plan or other development plan within the meaning of the Town and Country Planning Act 1990(202), on the local planning authority who prepared the plan;
(d) if the application relates to any decision or order, or any action on the part of a Minister of the Crown to which section 21 of the Land Compensation Act 1961(203), or section 288 of the Town and Country Planning Act 1990, applies, on the authority directly concerned with such decision, order or action or, if that authority is the applicant, on every person who would, if he were aggrieved by the decision, order or action, be entitled to apply to the High Court under the said section 21 or the said section 245, as the case may be;
(e) if the application relates to a scheme to which Schedule 32 to the Local Government, Planning and Land Act 1980(204) applies, on the body which adopted the scheme.
(3) In paragraph (2) “the appropriate Minister or government department” means the Minister of the Crown or government department by whom the order, scheme, certificate, plan, amendment, approval or decision in question was or may be made, authorised, confirmed, approved or given or on whose part the action in question was or may be taken.
(4) Where the application relates to an order made under the Road Traffic Regulation Act 1984(205), the claim form must be served—
(a) if the order was made by a Minister of the Crown, on that Minister; (b) if the order was made by a local authority with the consent, or in pursuance of a direction,
of a Minister of the Crown, on that authority and also on that Minister; (c) in any other case, on the local authority by whom the order was made.
Filing of witness statement or affidavits, etc.
Rule 3. (1) Evidence at the hearing of an application under rule 1 shall be by witness statement or affidavit.
(2) Any witness statement or affidavit in support of the application must be filed by the applicant in the Crown Office within 14 days after service of the claim form and the applicant must, at the time of filing, serve a copy of the witness statement or affidavit and of any exhibit thereto on the respondent.
(3) Any witness statement or affidavit in opposition to the application must be filed by the respondent in the Crown Office within 21 days after the service on him under paragraph (2) of the
(200)1985 c. 68. (201)1980 c. 66. (202)1990 c. 8. (203)1961 c. 33. (204)1980 c. 65. (205)1984 c. 27.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
299
applicant’s witness statement or affidavit and the respondent must, at the time of filing, serve a copy of his witness statement or affidavit and of any exhibit thereto on the applicant.
(4) When filing a witness statement or affidavit under this rule a party must leave a copy thereof and of any exhibit thereto at the Crown Office for the use of the Court.
(5) Unless the Court otherwise orders, an application under rule 1 shall not be heard earlier than 14 days after the time for filing a witness statement or affidavit by the respondent has expired.
Rectification of register of deeds of arrangement
Rule 4. (1) Every application to the Court under section 7 of the Deeds of Arrangement Act, 1914(206), for an order—
(a) that any omission to register a deed of arrangement within the time prescribed by that Act be rectified by extending the time for such registration, or
(b) that any omission or mis-statement of the name, residence or description of any person be rectified by the insertion in the register of his true name, residence or description,
must be made by witness statement or affidavit without notice being served on any other party to a master of the Queen’s Bench Division.
(2) The witness statement or affidavit must set out particulars of the deed of arrangement and of the omission or mis-statement in question and must state the grounds on which the application is made.
Exercise of jurisdiction under Representation of the People Acts
Rule 5. (1) Proceedings in the High Court under the Representation of the People Acts shall be assigned to the Queen’s Bench Division.
(2) Subject to paragraphs (3) and (4) the jurisdiction of the High Court under the said Acts in matters relating to parliamentary and local government elections shall be exercised by a Divisional Court.
(3) Paragraph (2) shall not be construed as taking away from a single judge or a master any jurisdiction under the said Acts which, but for that paragraph, would be exercisable by a single judge or, as the case may be, by a Master.
(4) Where the jurisdiction of the High Court under the said Acts is by a provision of any of those Acts made exercisable in matters relating to parliamentary elections by a single judge, that jurisdiction in matters relating to local government elections shall also be exercisable by a single judge.
(5) A claim form by which any application relating to parliamentary or local government elections is made shall be in Form No. 10 in the relevant Practice Direction.
Appeal to High Court where Court’s decision is final
Rule 6. (1) This rule applies to an appeal to the High Court under any of the following enactments, namely—
(a) section 22 of the Architects Act 1997(207); (b) section 82 (3) and 83 (2) of the Medicines Act 1968(208); (d) section 12 of the Nurses, Midwives & Health Visitors Act 1997(209);
(206)1914 c. 47. (207)1997 c. 22. (208)1968 c. 24. (209)1997 c. 24.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
300
(e) section 10 of the Pharmacy Act 1954(210). (2) Every appeal to which this rule applies must be supported by witness statement or affidavit
and, if the Court so directs, by evidence given orally. (4) Order 55, rule 4 (2) shall apply in relation to an appeal under the enactments mentioned in
paragraph (1)(c) and (h) as if for the period of 28 days therein specified there were substituted a period of 21 days.
(5) In the case of an appeal under an enactment specified in column (1) of the following Table, the persons to be made respondents are the persons specified in relation to that enactment in column (2) of that Table and the person to be served with notice of appeal is the person so specified in column (3) thereof:
(1) (2) (3) Enactment Respondents Person to be served
Architects Act 1997, s.22 The Architects' Registration Council of the United Kingdom
The registrar of the Council
Medicines Act 1968, s.82 (3) and s.83 (2)
The Pharmaceutical Society of Great Britain
The registrar of the Society
Nurses, Midwives and Health Visitors Act, 1997 s.12
The United Kingdom Central Council for Nursing Midwifery and Health Visiting
The registrar of the Council
Pharmacy Act, 1954, s.10 The Pharmaceutical Society of Great Britain
The registrar of the Society
Reference of question of law by Agricultural Land Tribunal
Rule 7. (1) Any question of law referred to the High Court by an Agricultural Land Tribunal under section 6 of the Agriculture (Miscellaneous Provisions) Act 1954(211), shall be referred by way of case stated by the Tribunal.
(2) The claim form by which an application is made to the Court for an order under the said section 6 directing such a Tribunal to refer a question of law to the Court, and the claim form by which an application is made to the Court to determine a question of law so referred, must, where the proceedings before the Tribunal arose on an application under section 11 of the Agricultural Holdings Act, 1986(212), be served on the authority having power to enforce the statutory requirement specified in the application as well as on every other party to those proceedings and on the secretary of the Tribunal.
(3) Where in accordance with the provisions of this rule a claim form is served on the authority mentioned in paragraph (2) that authority shall be entitled to appear and be heard in the proceedings.
Tribunals and Inquiries Act 1992(213): appeal from tribunal
Rule 8. (1) A person who was a party to proceedings before any such tribunal as is mentioned in section 11 (1) of the Tribunals and Inquiries Act 1992 and is dissatisfied in point of law with the decision of the tribunal may appeal to the High Court.
(2) Order 55, rule 4 (1)(b) shall apply in relation to such an appeal as if for the reference to the chairman of a tribunal there were substituted—
(210)1954 c. 61. (211) 1954 c. 39. (212)1986 c. 5. (213)1992 c. 53.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
301
(a) in the case of a tribunal which has no chairman or member who acts as a chairman, a reference to the member or members of the tribunal, and
(b) in the case of any such tribunal as is specified in paragraph 16 of Schedule 1 to the said Act of 1992, a reference to the secretary of the tribunal.
(3) Where such an appeal is against the decision of— (a) the tribunal constituted under section 46 of the National Health Service Act 1977(214), or (b) a tribunal established under section 1 of the Industrial Tribunals Act 1996(215),
Order 55, rule 4 (2) shall apply in relation to the appeal as if for the period of 28 days therein specified there were substituted, in the case of the tribunal mentioned in sub-paragraph (a) a period of 14 days and, in the case of a tribunal mentioned in sub-paragraph (b) a period of 42 days.
Tribunals and Inquiries Act 1992: case stated by tribunal
Rule 9. (1) Any such tribunal as is mentioned in section 11 (1) of the Tribunals and Inquiries Act 1992 may, of its own initiative or at the request of any party to proceedings before it, state in the course of proceedings before it in the form of a special case for the decision of the High Court any question of law arising in the proceedings.
(2) Any party to proceedings before any such tribunal who is aggrieved by the tribunal’s refusal to state such a case may apply to the High Court for an order directing the tribunal to do so.
(3) A case stated by any such tribunal which has no chairman or member who acts as a chairman must be signed by the member or members of the tribunal.
Tribunals and Inquiries Act 1971(216): appeal from Minister of Transport
Rule 10. (1) A person who is dissatisfied on a point of law with a decision of the Secretary of State on such an appeal as is mentioned in section 13 (5) of the Tribunals and Inquiries Act 1971, and had, or if aggrieved would have had, a right to appeal to that Secretary of State, whether or not he exercised that right, may appeal to the High Court.
(2) The persons to be served with the claim form by which such an appeal is brought are the Secretary of State and every person who had, or if aggrieved would have had, a right to appeal to the Secretary of State.
(3) The Court hearing the appeal may remit the matter to the Secretary of State to the extent necessary to enable him to provide the Court with such further information in connection with the matter as the Court may direct.
(4) If the Court is of the opinion that the decision appealed against was erroneous on a point of law, it shall not set aside or vary that decision but shall remit the matter to the Minister with the opinion of the Court for rehearing and determination by him.
(5) Order 55, rule 7 (5) shall not apply in relation to the appeal.
Consumer Credit Act 1974(217): appeal from Secretary of State
Rule 10A. (1) A person who is dissatisfied in point of law with a decision of the Secretary of State on an appeal under section 41 of the Consumer Credit Act 1974 from a determination of the Director General of Fair Trading and had a right to appeal to the Secretary of State, whether or not he exercised that right, may appeal to the High Court.
(214)1977 c. 49. (215)1996 c. 17. (216)1971 c. 62. (217)1974 c. 39.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
302
(2) The persons to be served with the claim form by which such an appeal is brought are the Secretary of State and, where the appeal is by a licensee under a group licence against compulsory variation, suspension or revocation of that licence, the original applicant, if any; but the Court may in any case direct that the claim form be served on any other person.
(3) The Court hearing the appeal may remit the matter to the Secretary of State to the extent necessary to enable him to provide the Court with such further information in connection with the matter as the Court may direct.
(4) If the Court is of the opinion that the decision appealed against was erroneous in point of law, it shall not set aside or vary that decision but shall remit the matter to the Secretary of State with the opinion of the Court for hearing and determination by him.
(5) Order 55, rule 7 (5) shall not apply in relation to the appeal.
Case stated by Mental Health Review Tribunal
Rule 11. (1) In this rule “the Act” means the Mental Health Act 1983(218). (2) The reference in paragraph (3) to a party to proceedings before a Mental Health Review
Tribunal, and the references in Order 56, rules 8 (1), 9 (2) and 10 to a party to proceedings shall be construed as references to—
(a) the person who initiated the proceedings; and (b) any person to whom, in accordance with rules made under section 78 of the Act, the
Tribunal sent notice of the application or reference or a request instead of notice of reference.
(3) A party to proceedings before a Mental Health Review Tribunal shall not be entitled to apply to the High Court for an order under section 78 (8) of the Act directing the Tribunal to state a case for determination by the Court unless—
(a) within 21 days after the decision of the Tribunal was communicated to him in accordance with rules made under section 78 of the Act he made a written request to the Tribunal to state a case, and
(b) either the Tribunal failed to comply with the last-mentioned request within 21 days after it was made or the Tribunal refused to comply with it.
(4) The period for issuing the claim form by which an application to the Court for such an order as is mentioned in paragraph (3) is made, and for service of the claim form shall be—
(a) where the Tribunal refused the applicant’s request to state a case, 14 days after receipt by the applicant of notice of the refusal of his request;
(b) where the Tribunal failed to comply with that request within the period mentioned in paragraph (3)(b) 14 days after the expiration of that period.
(5) A Mental Health Review Tribunal by whom a case is stated shall be entitled to appear and be heard in the proceedings for the determination of the case.
(6) If the Court is of opinion that any decision of such a Tribunal on the question of law raised by the case was erroneous, the Court may give any direction which the Tribunal ought to have given under Part V of the Act.
(218)1983 c. 20.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
303
Applications for permission under section 289 (6) of the Town and Country Planning Act 1990(219) and section 65 (5) of the Planning (Listed Buildings and Conservation Areas) Act 1990(220)
Rule 12. (1) An application for permission to appeal to the High Court under section 289 of the Town and Country Planning Act 1990 or section 65 of the Planning (Listed Buildings and Conservation Areas) Act 1990 shall be made within 28 days after the date on which notice of the decision was given to the applicant.
(2) An application shall— (a) include, where necessary, any application to extend the time for applying, (b) be in writing setting out the reasons why permission should be granted, and if the time for
applying has expired, the reasons why the application was not made within that time, (c) be made by filing it in the Crown Office together with the decision, a draft claim form,
and a witness statement or affidavit verifying any facts relied on, (d) before being filed under sub-paragraph (c), be served together with the draft claim form
and a copy of the witness statement or affidavit to be filed with the application, upon the persons who are referred to in rule 13 (5), and
(e) be accompanied by a witness statement or affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the application and, if any person who ought to be served has not been served, the witness statement or affidavit must state that fact and the reason for it.
(3) An application shall be heard— (a) by a single judge sitting in public; (b) unless the Court otherwise orders, not less than 21 days after it was filed at the Crown
Office. Any person served with the application shall be entitled to appear and be heard.
(4) If on the hearing of an application the Court is of opinion that any person who ought to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the application may be served on that person.
(5) If the Court grants permission— (a) it may impose such terms as to costs and as to giving security as it thinks fit; (b) it may give directions; and (c) the claim form by which the appeal is to be brought shall be served and filed within 7
days of the grant. (6) Any respondent who intends to use a witness statement or affidavit at the hearing shall file
it in the Crown Office and serve a copy thereof on the applicant as soon as is practicable and in any event, unless the Court otherwise allows, at least 2 days before the hearing. The Court may allow the applicant to use a further witness statement or affidavit.
Proceedings under sections 289 and 290 of the Town and Country Planning Act 1990 and under section 65 of the Planning (Listed Buildings and Conservation Areas) Act 1990
Rule 13. (1) In this rule a reference to “section 65” is a reference to section 65 of the Planning (Listed Buildings and Conservation Areas) Act 1990, but, save as aforesaid, a reference to a section by number is a reference to the section so numbered in the Town and Country Planning Act 1990.
(219)1990 c. 8. (220)1990 c. 9.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
304
(2) An appeal shall lie to the High Court on a point of law against a decision of the Secretary of State under subsection (1) or (2) of section 289 or under subsection (1) of section 65 at the instance of any person or authority entitled to appeal under any of those subsections respectively.
(3) In the case of a decision to which section 290 applies, the person who made the application to which the decision relates, or the local planning authority, if dissatisfied with the decision in point of law, may appeal against the decision to the High Court.
(4) Any appeal under section 289 (1) or (2), section 65 (1) or section 290, and any case stated under section 289 (3) or section 65 (2), 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.
(5) The persons to be served with the claim form by which an appeal to the High Court is brought by virtue of section 289 (1) or (2), section 65 (1) or section 290 are—
(a) the Secretary of State; (b) the local planning authority who served the notice or gave the decision, as the case may
be, or, where the appeal is brought by that authority, the appellant or applicant in the proceedings in which the decision appealed against was given;
(c) in the case of an appeal brought by virtue of section 289 (1) or section 65 (1), any other person having an interest in the land to which the notice relates, and;
(d) in the case of an appeal brought by virtue of section 289 (2), any other person on whom the notice to which those proceedings related was served.
(6) The Court hearing any such appeal may remit the matter to the Secretaryof State to the extent necessary to enable him to provide the Court with such further information in connection with the matter as the Court may direct.
(7) Where the Court is of opinion that the decision appealed against was erroneous in point of law, it shall not set aside or vary that decision but shall remit the matter to the Secretary of State with the opinion of the Court for re-hearing and determination by him.
(8) Order 55, rule 7 (5) shall not apply in relation to any such appeal. (9) The Court may give directions as to the exercise, until an appeal brought by virtue of
section 289 (1) is finally concluded and any re-hearing and determination by the Secretary of State has taken place, of the power to serve, and institute proceedings (including criminal proceedings) concerning—
(a) a stop notice under section 183, and; (b) a breach of condition notice under section 187A.
Applications under section 13 Coroners Act 1988(221)
Rule 14. (1) Any application under section 13 of the Coroners Act 1988 shall be heard and determined by a Divisional Court.
(2) The application must be made by claim form and the claim form must state the grounds of the application and, unless the application is made by the Attorney General, shall be accompanied by his fiat.
(3) The claim form must be filed in the Crown Office and served upon all persons directly affected by the application within six weeks after the grant of the fiat.
(221)1988 c. 13.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
305
Applications under section 42, Supreme Court Act 1981(222)
Rule 15. (1) Every application to the High Court by the Attorney General under section 42 of the Supreme Court Act 1981 shall be heard and determined by a Divisional Court.
(2) The application must be made by claim form which, together with a witness statement or affidavit in support, shall be filed in the Crown Office and served on the person against whom the order is sought.
RSC ORDER 95 BILLS OF SALE ACTS 1878(223) AND 1882(224) AND THE
INDUSTRIAL AND PROVIDENT SOCIETIES ACT 1967(225)
Rectification of register
Rule 1. (1) Every application to the Court under section 14 of the Bills of Sale Act 1878, for an order—
(a) that any omission to register a bill of sale or a witness statement or affidavit of renewal thereof within the time prescribed by that Act be rectified by extending the time for such registration, or
(b) that any omission or mis-statement of the name, residence or occupation of any person be rectified by the insertion in the register of his true name, residence or occupation,
must be made by witness statement or affidavit to a master of the Queen’s Bench Division, and a copy of the witness statement or affidavit need not be served on any other person.
(2) Every application for such an order as is described in paragraph (1) shall be supported by a witness statement or affidavit setting out particulars of the bill of sale and of the omission or mis- statement in question and stating the grounds on which the application is made.
Entry of satisfaction
Rule 2. (1) Every application under section 15 of the Bills of Sale Act 1878, to a master of the Queen’s Bench Division for an order that a memorandum of satisfaction be written on a registered copy of a bill of sale must—
(a) if a consent to the satisfaction signed by the person entitled to the benefit of the bill of sale can be obtained, be made without it and the documents set out in paragraph (2) being served on any other person;
(b) in all other cases, be made by the issue of a claim form. (2) An application under paragraph (1)(a) must be supported by—
(a) particulars of the consent referred to in that paragraph; and (b) a witness statement or affidavit by a witness who attested the consent verifying the
signature on it. (3) A claim form under paragraph (1)(b) must be served on the person entitled to the benefit of
the bill of sale and must be supported by evidence that the debt (if any) for which the bill of sale was made has been satisfied or discharged.
(222)1981 c. 54. (223) 1878 c. 31. (224) 1882 c. 43. (225) 1967 c. 48.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
306
Restraining removal on sale of goods seized
Rule 3. An application to the Court under the proviso to section 7 of the Bills of Sale Act (1878) Amendment Act 1882 must be made by the issue of a claim form.
Search of register
Rule 4. Any master of the Queen’s Bench Division shall, on a request in writing giving sufficient particulars, and on payment of the prescribed fee, cause a search to be made in the register of bills of sale and issue a certificate of the result of the search.
Application under section 1 (5) of the Industrial and Provident Societies Act 1967(226)
Rule 5. Every application to the Court under section 1 (5) of the Industrial and Provident Societies Act 1967 for an order—
(a) that the period for making an application for recording a charge be extended, or (b) that any omission from or misstatement in such an application be rectified,
must be made to a Master of the Queen’s Bench Division by witness statement or affidavit setting out particulars of the charge and of the omission or misstatement in question and stating the grounds of the application, and need not be served on any other person.
Assignment of book debts
Rule 6. (1) There shall continue to be kept in the Central Office, under the supervision of the registrar, a register of assignments of book debts.
(2) Every application for registration of an assignment of a book debt under section 344 of the Insolvency Act 1986(227) shall be made by producing at the Filing and Record Department of the Central Office—
(a) a true copy of the assignment, and of every schedule thereto, and (b) a witness statement or affidavit verifying the date and the time, and the due execution
of the assignment in the presence of the witness, and setting out the particulars of the assignment and the parties thereto.
(3) On an application being made in accordance with the preceding paragraph, the documents there referred to shall be filed, and the particulars of the assignment, and of the parties to it, shall be entered in the register.
(4) In this rule, “the registrar” has the meaning given in section 13 of the Bills of Sale Act 1878.
RSC ORDER 96 THE MINES (WORKING FACILITIES AND SUPPORT) ACT 1966(228), ETC.
Assignment to Chancery Division
Rule 1. Any proceedings in which the jurisdiction conferred on the High Court by section 1 of the Railway and Canal Commission (Abolition) Act 1949(229), is invoked shall be assigned to the Chancery Division and be begun by claim form which need not be served on any other party.
(226)1967 c. 48. (227)1986 c. 45.
(228) 1966 c. 4. (229)1949 c. 11.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
307
Reference by Secretary of State of certain applications
Rule 2. Where under any provision of the Mines (Working Facilities and Support) Act 1966, the Secretary of State refers any application to the High Court, he shall—
(a) file the reference, signed by him or by an officer authorised by him for the purpose, in Chancery Chambers, together with all documents and plans deposited with him by the applicant, and
(b) within 3 days after doing so give notice to the applicant of the filing of the reference.
Issue of claim form
Rule 3. Within 10 days after receipt of the notice mentioned in rule 2 (b) the applicant must issue a claim form which need not be served on any other party which must state the application of the applicant under the said Act of 1966 and any other relief sought.
Appointment for directions
Rule 4. (1) Within 7 days after issue of the claim form the applicant, having applied at Chancery Chambers for the name of the master assigned to hear the claim, must take an appointment before that master for the hearing of the claim and must forthwith serve notice of the appointment on the Secretary of State.
(2) Not less than 2 clear days before the day appointed for the first hearing of the claim, the applicant must leave at Chancery Chambers—
(a) a witness statement or affidavit of facts in support of the claim, giving particulars of all persons known to the applicant to be interested in or affected by the application, and
(b) a draft of any proposed advertisement or notice of the application. (3) On the appointment the master shall—
(a) fix a time within which any notice of objection under rule 5 must be given, (b) fix a date for the further hearing of the claim, and (c) direct what, if any, advertisements and notices of the application and of the date fixed for
the further hearing of the claim are to be inserted and given, and what persons, if any, are to be served with a copy of the application and of any other document in the proceedings.
(4) Any such advertisement or notice must include a statement of the effect of rule 5.
Objections to application
Rule 5. (1) Any person wishing to oppose the application must, within the time fixed by the master under rule 4 (3), serve on the applicant a notice of objection stating—
(a) his name and address and the name and address of his solicitor, if any, (b) the grounds of his objection and any alternative methods of effecting the objects of the
application which he alleges may be used, and (c) the facts on which he relies.
(2) Any notice required to be served on a person who has given notice of objection (hereafter in this Order referred to as “the objector”) may be served by delivering it or sending it by prepaid post—
(a) where the name and address of a solicitor is stated in the notice of objection, to the solicitor at that address, and
(b) in any other case, to the objector at his address stated in the notice of objection.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
308
(3) An objector shall be entitled to appear in person or by a solicitor or counsel at the further hearing of the claim and to take such part in the proceedings as the master or judge thinks fit; but if he does not so appear his notice of objection shall be of no effect and he shall not be entitled to take any part in the proceedings unless the master or judge otherwise orders.
List of objectors
Rule 6. Not less than 2 clear days before the day fixed for the further hearing of the claim, the applicant must leave at Chancery Chambers any notices of objection served on the applicant together with a list arranged in 3 columns stating—
(a) in column 1, the names and addresses of the objectors, (b) in column 2, the names and addresses of their respective solicitors, if any, and (c) in column 3, short summaries of their respective grounds of objection.
Directions on further hearing
Rule 7. At the further hearing of the claim the master shall— (a) give directions as to the procedure to be followed before the claim is set down for hearing,
including, if he thinks fit, a direction— (i) that further particulars be given of any of the grounds or facts relied on in support
of or in opposition to the application made by the claim, (ii) that the applicant may serve a reply to any notice of objection,
(iii) that any particular fact be proved by witness statement or affidavit, (iv) that statements of case or points of claim or defence be served, and
(b) adjourn the claim for hearing before the judge in such manner, that is to say— (i) in public or in private, and
(ii) on oral evidence or on witness statement or affidavit evidence, with or without cross examination of any of the witnesses, or partly in one way and partly in the other,
as he shall think best adapted to secure the just, expeditious and economical disposal of the proceedings.
Other applications
Rule 8. Rules 2 to 7 shall, so far as applicable and with the necessary adaptations, apply in relation to any other application to the High Court falling within rule 1 as they apply in relation to an application under the Mines (Working Facilities and Support) Act 1966.
RSC ORDER 97 THE LANDLORD AND TENANT ACTS 1927(230), 1954(231) AND 1987(232)
Interpretation
Rule 1. (1) In this Order, “the Act of 1927” means the Landlord and Tenant Act 1927, “the Act of 1954” means the Landlord and Tenant Act 1954 and “the Act of 1987” means the Landlord and Tenant Act 1987.
(230) 1927 c. 36; section 1 was amended by the Landlord and Tenant Act 1954 (c. 56), section 47(5). Section 8 was amended by the 1954 Act, sections 45, 68(1) and schedule 7.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
309
(2) In relation to any proceedings under Part II of the Act of 1954, any reference in this Order to a landlord shall, if the interest of the landlord in question is subject to a mortgage and the mortgagee is in possession or a receiver appointed by the mortgagee or by the court is in receipt of the rents and profits, be construed as a reference to the mortgagee.
Assignment of proceedings to Chancery Division, etc.
Rule 2. All proceedings in the High Court under Part I of the Act of 1927 or Part II of the Act of 1954 or the Act of 1987 shall be assigned to the Chancery Division and, subject to rules 9A and 12, be begun by claim form.
Issue, etc., of claim form
Rule 3. (1) Any claim or application under Part I of the Act of 1927 or Part II of the Act of 1954 or the Act of 1987 may be issued out of the district registry for the district in which the premises to which the claim or application relates are situated instead of Chancery Chambers.
(3) The court will set a day for the hearing of such a claim which shall be a day which will allow an interval of at least 14 days between the date of service of the claim form and the day so fixed.
Claim for compensation in respect of improvement
Rule 4. (1) A claim under section 1 of the Act of 1927 for compensation in respect of any improvement, and a claim by a mesne landlord under section 8 of that Act, must be a written claim, signed by the claimant or his solicitor or agent, containing—
(a) a statement of the name and address of the claimant and of the landlord against whom the claim is made,
(b) a description of the holding in respect of which the claim is made and of the trade or business carried on there,
(c) a concise statement of the nature of the claim, (d) particulars of the improvement, including the date when it was completed and the cost
thereof, and (e) a statement of the amount claimed.
(2) Where any document relating to any proposed improvement, or to any claim, is sent to or served on a mesne landlord in pursuance of Part I of the Act of 1927, he must forthwith serve on his immediate superior landlord a copy of the document, together with a notice in writing stating the date on which he received the document, and if the last-mentioned landlord is himself a mesne landlord he must accordingly comply with this paragraph.
Proceedings under Part I of Act of 1927
Rule 5. (1) The claim form by which any claim or application under Part I of the Act of 1927 is made must state—
(a) the nature of the claim or application or the matter to be determined, (b) the holding in respect of which the claim or application is made and the trade or business
carried on there, (c) particulars of the improvement or proposed improvement to which the claim or application
relates, and
(231) 1954 c. 56. (232) 1987 c. 31.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
310
(d) if the claim is for payment of compensation, the amount claimed. (2) The claimant’s immediate landlord shall be made a defendant. (3) No witness statement or affidavit shall be filed in the first instance in support of or in answer
to any such claim form. (4) Any certificate of the Court under section 3 of the Act of 1927 that an improvement is a
proper improvement or has been duly executed shall be embodied in an order.
Application for new tenancy under section 24 of Act of 1954
Rule 6. (1) The claim form by which an application under section 24 of the Act of 1954(233) for a new tenancy is made must state—
(a) the premises to which the application relates and where a business is carried on there, the nature of such business,
(b) particulars of the claimant’s current tenancy of the premises and of every notice or request given or made in respect of that tenancy under section 25 or 26 of that Act, and
(c) the claimant’s proposals as to the terms of the new tenancy applied for including, in particular, terms as to the duration thereof and as to the rent payable thereunder.
(2) The person who, in relation to the claimant’s current tenancy, is the landlord as defined by section 44 of the Act of 1954(234) shall be made a defendant.
(3) A claim form under this rule must be served within 2 months after the date of issue whether served within or out of the jurisdiction and CPR rules 7.5(2) and 7.5(3) will not apply
Application to authorise agreement
Rule 6A. (1) An application under section 38 (4) of the Act of 1954 for the authorisation of an agreement shall be made without notice being served on any other party by claim form and may be heard and determined in private.
(2) Notwithstanding that the application must be made jointly by the landlord or proposed landlord and the tenant or proposed tenant and the claim form is accordingly issued by one solicitor on behalf of both of them, they may appear and be heard at any hearing by separate solicitors or counsel or, in the case of an individual applicant, in person; and where at any stage of the proceedings it appears to the Court that one of the applicants is not but ought to be separately represented, the Court may adjourn the proceedings until he is.
Evidence on application under section 24 of Act of 1954
Rule 7. (1) Not less than 14 days before the day fixed for the first hearing in an application under section 24 of the Act of 1954 for a new tenancy the claimant must file a witness statement or affidavit verifying the statements of fact made in the claim form.
(2) Not less than 4 days before the day fixed for the first hearing the defendant must file a witness statement or affidavit stating—
(a) whether he opposes the grant of a new tenancy and, if he does, on what grounds; (b) whether, if a new tenancy is granted, he objects to any of the claimant’s proposals as to
the terms thereof and, if he does, the terms to which he objects and the terms he proposes in so far as they differ from the terms proposed by the claimant;
(233)Section 24 was amended by the Law of Property Act 1969 (c. 59), sections 3(2) and 4(1). (234)Section 44 was amended by the Law of Property Act 1969 (c. 59), section 14(1).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
311
(c) whether he is a tenant under a lease having less than 14 years unexpired at the date of the termination of the claimant’s current tenancy, and, if he is, the name and address of his immediate landlord.
Parties to certain proceedings
Rule 8. (1) Any person affected by any proceedings under rule 5, 6, 14, 15, 16 or 17 may apply in private to be made a party to the proceedings and the Court may give such directions on the application as appear necessary.
(2) An application under paragraph (1) must in the first instance be made without notice being given to any other party but the Court may require notice thereof to be given to the parties to the proceedings before making any order.
(3) The foregoing provisions are without prejudice to the power of the Court, either with or without an application by any party, to order notice of the proceedings to be given to any person or any person to be made a party to the proceedings, but nothing in this rule shall be construed as requiring the Court to make any such order and, if it appears that any person though he is affected by the proceedings is not sufficiently affected for it to be necessary for him to be made a party to the proceedings or given notice thereof, the Court may refuse to make him a party or, as the case may be, to require him to be given notice of the proceedings.
Order dismissing application under section 24 which is successfully opposed
Rule 9. Where the Court hearing an application under section 24 of the Act of 1954 is precluded by section 31 of that Act from making an order for the grant of a new tenancy by reason of any of the grounds specified in section 30 (1) of that Act, the order dismissing the application shall state all the grounds by reason of which the Court is so precluded.
Application to determine interim rent
Rule 9A. (1) An application under section 24A of the Act of 1954 to determine an interim rent shall—
(a) if the tenant has begun proceedings for a new tenancy under section 24 of the Act, be made by an application in accordance with CPR Part 23 in those proceedings, and
(b) in any other case, be made by claim form (2) The application may be heard and determined in private.
Other applications under Part II of Act of 1954
Rule 10. (1) An application for an order under section 31(2)(b) of the Act of 1954 and, unless made at the hearing of the application under section 24 thereof, an application for a certificate under section 37 (4) of that Act must be made without notice being served on any other party in private.
(2) The mesne landlord to whose consent an application for the determination of any question arising under paragraph 4 (3) of Schedule 6 to the Act of 1954 relates shall be made a defendant to the claim.
Transfer of proceedings from county court
Rule 11. (2) Any proceedings under Part I of the Act of 1927 or Part II of the Act of 1954 that have been transferred from a county court shall proceed in the High Court as if they had been begun by claim form issued out of Chancery Chambers, and within 7 days after receipt of notification of the transfer the claimant must apply to the court sitting in private for the appointment of a day and time for the attendance of the parties before the Court.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
312
(3) If the claimant fails to apply for an appointment within the period prescribed by paragraph (2) the defendant may do so.
Application for relief under section 16, etc., of the Act of 1954
Rule 12. In any such proceedings as are mentioned in section 16 (1) of the Act of 1954, paragraph 9 (1) of Schedule 5 to that Act or paragraph 10 (1) of that Schedule, an application for relief under that section or paragraph, as the case may be, may be made—
(a) in the applicant’s statement of case, or (b) in accordance with CPR Part 23 at any time before the trial, or (c) at the trial.
Evidence of rateable value
Rule 13. Where any dispute as to the rateable value of any holding has been referred under section 37 (5) of the Act of 1954 to the Commissioners of Inland Revenue for decision by a valuation officer, any document purporting to be a statement by the valuation officer of his decision shall be admissible as evidence of the matters contained in it.
Application under section 19 of the Act of 1987
Rule 14. A copy of the notice served under section 19 (2)(a) of the Act of 1987 shall be appended to the claim form issued under section 19 (1) thereof, and an additional copy of the notice shall be filed.
Application for order under section 24 of the Act of 1987
Rule 15. (1) An application for an order under section 24 of the Act of 1987 shall state— (a) the premises to which the application relates, (b) the name and address of the applicant and of the landlord of the premises, or, where the
landlord cannot be found or his identity ascertained, the steps taken to find him or ascertain his identity,
(c) the name and address of every person known to the applicant who is likely to be affected by the application including, but not limited to, the other tenants of flats contained in the premises, any mortgagee or superior landlord of the landlord, and any tenants' association,
(d) the name, address and qualifications of the person it is desired to be appointed manager of the premises,
(e) the functions which it is desired that the manager shall carry out, and (f) the grounds of the application,
and a copy of the notice served on the landlord under section 22 of the Act of 1987 shall be appended to the claim form, unless the requirement to serve such a notice has been dispensed with, and an additional copy of the notice shall be filed.
(2) The defendant to an application for an order under section 24 of the Act of 1987 shall be the landlord of the premises.
(3) A copy of the claim form shall be served on— (a) each of the persons named by the applicant under paragraph (1)(c), together with a notice
stating that he may apply under rule 8 to be made a party to the proceedings, and (b) the person named under paragraph (1)(d).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
313
(4) Order 30, rules 2 to 8 shall apply to proceedings in which an application is made for an order under section 24 of the Act of 1987 as they apply to proceedings in which an application is made for the appointment of a receiver, and as if for the references in those rules to a receiver there were references to a manager under the Act of 1987.
Application for acquisition order under section 29 of the Act of 1987
Rule 16. (1) An application for an acquisition order under section 29 of the Act of 1987 shall— (a) identify the premises to which the application relates and give such details of them as are
necessary to show that section 25 of the Act of 1987 applies thereto, (b) give such details of the applicants as are necessary to show that they constitute the requisite
majority of qualifying tenants, (c) state the name and address of the applicants and of the landlord of the premises, or, where
the landlord cannot be found or his identity ascertained, the steps taken to find him or ascertain his identity,
(d) state the name and address of the person nominated by the applicants for the purposes of Part III of the Act of 1987,
(e) state the name and address of every person known to the applicants who is likely to be affected by the application, including, but not limited to, the other tenants of flats contained in the premises (whether or not they could have made an application), any mortgagee or superior landlord of the landlord, and any tenant’s association, and
(f) state the grounds of the application, and a copy of the notice served on the landlord under section 27 of the Act of 1987 shall be appended to the claim form, unless the requirement to serve such a notice has been dispensed with, and an additional copy of the notice shall be filed.
(2) The defendants to an application for an acquisition order under section 29 of the Act of 1987 shall be the landlord of the premises and the nominated person, where he is not an applicant.
(3) A copy of the claim form shall be served on each of the persons named by the applicant under paragraph (1)(e), together with a notice stating that he may apply under rule 8 to be made a party to the proceedings.
(4) Where the nominated person pays money into court in accordance with an order under section 33 (1) of the Act of 1987, he shall file a copy of the certificate of the surveyor selected under section 33 (2)(a) thereof.
Application for order under section 38 or section 40 of the Act of 1987
Rule 17. (1) An application for an order under section 38 or section 40 of the Act of 1987 shall state—
(a) the name and address of the applicant and of the other current parties to the lease or leases to which the application relates,
(b) the date of and parties to the lease or leases, the premises demised thereby, the relevant terms thereof and the variation sought,
(c) the name and address of every person who the applicant knows or has reason to believe is likely to be affected by the variation, including, but not limited to, the other tenants of flats contained in the premises of which the demised premises form a part, any mortgagee or superior landlord of the landlord, any mortgagee of the applicant, and any tenants' association, and
(d) the grounds of the application.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
314
(2) The other current parties to the lease or leases shall be made defendants to the application. (3) A copy of the application shall be served by the applicant on each of the persons named by
the applicant under paragraph (1)(c) and by the defendant on any other person who he knows or has reason to believe is likely to be affected by the variation, together, in each case, with a notice stating that the person may apply under rule 8 to be made a party to the proceedings.
(4) Any application under section 36 of the Act of 1987 shall be contained in the defendant’s witness statement or affidavit, and paragraphs (1) to (3) shall apply to such an application as if the defendant were an applicant.
Service of notices in proceedings under the Act of 1987
Rule 18. Where a notice is to be served in or before proceedings under the Act of 1987, it shall be served in accordance with section 54 and, in the case of service on a landlord, it shall be served at the address furnished under section 48 (1).
Tenants' associations
Rule 19. In rules 15, 16 and 17 a reference to a tenants' association is a reference to a recognised tenants' association within the meaning of section 29 of the Landlord and Tenant Act 1985(235) which represents tenants of the flats of which the demised premises form a part.
RSC ORDER 98 LOCAL GOVERNMENT FINANCE ACT 1982(236), PART III
Interpretation
Rule 1. In this Order “the Act” means the Local Government Finance Act 1982 and a section referred to by number means the section so numbered in that Act.
Application by auditor for declaration
Rule 2. (1) Any application for a declaration under section 19 (1) of the Act that an item of account is contrary to law shall be made by claim form.
(2) The claim form shall be served on the body to whose accounts the application relates and on any person against whom an order is sought under section 19 (2).
(3) Not later than seven days after filing the claim form in the Crown Office in accordance with Order 57, rule 2, the applicant shall file in that office a witness statement or affidavit stating the facts on which he intends to rely at the hearing of the application.
(4) The claim shall be entered for hearing within six weeks after the claim form has been filed in the Crown Office but, unless the Court otherwise directs, the application shall not be heard sooner than 28 days after service of the claim form.
Appeal against decision of auditor
Rule 3. (1) A claim form by which an appeal is brought under section 19 (4) or section 20 (3) against the decision of an auditor shall be served on—
(235)1985 c. 70. (236) 1982 c. 32.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
315
(a) the auditor who for the time being has responsibility for the audit of the accounts of the body in relation to whom the appeal relates;
(b) that body; and (c) in the case of an appeal against a decision not to certify under section 20 (1) that a sum
or amount is due from another person, that person. (2) Order 55, rules 4 (2) and 5, shall apply to the appeal with the modification that the period of 28
days mentioned in the said rule 4 (2) shall be calculated from the day on which the appellant received the auditor’s statement of the reasons for his decision pursuant to a requirement under section 19 (4) or section 20 (2).
(3) Not later than seven days after filing the claim form in the Crown Office in accordance with Order 57, rule 2, the appellant must file in that office a witness statement or affidavit stating—
(a) the reasons stated by the auditor for his decision; (b) the date on which he received the auditor’s statement; (c) the facts on which he intends to rely at the hearing of the appeal; (d) in the case of a decision not to apply for a declaration, such facts within the appellant’s
knowledge as will enable the Court to consider whether to exercise the powers conferred on it by section 19 (2).
General provisions
Rule 4. (1) Any proceedings in which the jurisdiction conferred on the High Court by section 19 or section 20 of the Act is invoked shall be assigned to the Queen’s Bench Division and be heard by a single judge, unless the Court directs that the matter shall be heard by a Divisional Court; and the Court may, at any stage direct that any officer or member of the body to whose accounts the application of appeal relates be joined as a respondent.
(2) Except in so far as the Court directs that the evidence on any such application or appeal shall be given orally, it shall be given by witness statement or affidavit.
(3) The applicant or appellant must forthwith after filing any witness statement or affidavit under rule 2 (3) or 3 (3) serve a copy thereof on every respondent and any person intending to oppose the application or appeal must, not less than four days before the hearing, serve on the applicant or appellant a copy of any witness statement or affidavit filed by him in opposition to the motion.
(4) Except by permission of the Court, no witness statement or affidavit may be used at the hearing unless a copy thereof was served in accordance with paragraph (3).
RSC ORDER 99 INHERITANCE (PROVISION FOR FAMILY
AND DEPENDANTS) ACT 1975(237)
Order to apply to High Court and County Court
Rule A1. This Order applies to proceedings both in the High Court and the county court.
(237) 1975 c. 63.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
316
Interpretation
Rule 1. In this Order “the Act” means the Inheritance (Provision for Family and Dependants) Act 1975 and a section referred to by number means the section so numbered in that Act.
Assignment to Chancery or Family Division if proceedings in High Court
Rule 2. Proceedings in the High Court under the Act may be assigned to the Chancery Division or to the Family Division.
Application for financial provision
Rule 3. (1) An application under section 1 is made by the issue of a claim form. (3) There shall be filed with the Court a witness statement or affidavit by the applicant in support
of the claim, exhibiting an official copy of the grant of representation to the deceased’s estate and of every testamentary document admitted to proof, and a copy of the witness statement or affidavit shall be served on every defendant with the claim form.
Powers of Court as to parties
Rule 4. (1) The Court may at any stage of proceedings under the Act direct that any person be added as a party to the proceedings or that notice of the proceedings be served on any person.
(2) Order 15, rule 13, shall apply to proceedings under the Act as it applies to the proceedings mentioned in paragraph (1) of that rule.
Witness statement or affidavit in answer
Rule 5. (1) A defendant to an application under section 1 who is a personal representative of the deceased shall and any other defendant may, within 21 days after service of the claim form on him, inclusive of the day of service, file with the Court a witness statement or affidavit in answer to the application.
(2) The witness statement or affidavit filed by a personal representative pursuant to paragraph (1) shall state to the best of the witness’s ability—
(a) full particulars of the value of the deceased’s net estate, as defined by section 25 (1); (b) the person or classes of persons beneficially interested in the estate, giving the names and
(in the case of those who are not already parties) the addresses of all living beneficiaries, and the value of their interests so far as ascertained;
(c) if such be the case, that any living beneficiary (naming him) is a child or patient within the meaning of CPR rule 21.1(2); and
(d) any facts known to the witness which might affect the exercise of the Court’s powers under the Act.
(3) Every defendant who lodges a witness statement or affidavit shall at the same time serve a copy on the claimant and on every other defendant who is not represented by the same solicitor.
Separate representation
Rule 6. Where an application under section 1 is made jointly by two or more applicants and the claim form is accordingly issued by one solicitor on behalf of all of them, they may, if they have conflicting interests, appear on any hearing of the claim by separate solicitors or counsel or in person, and where at any stage of the proceedings it appears to the Court that one of the applicants is not but ought to be separately represented, the Court may adjourn the proceedings until he is.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
317
Endorsement of memorandum on grant
Rule 7. On the hearing of an application under section 1 the personal representative shall produce to the Court the grant of representation to the deceased’s estate and, if an order is made under the Act, the grant shall remain in the custody of the Court until a memorandum of the order has been endorsed on or permanently annexed to the grant in accordance with section 19 (3).
Disposal of proceedings in private
Rule 8. Any proceedings under the Act may, if the Court so directs, be disposed of in private.
Subsequent applications in proceedings under section 1
Rule 9. Where an order has been made on an application under section 1, any subsequent application under the Act, whether made by a party to the proceedings or by any other person, shall be made by the issue of an application notice in accordance with CPR Part 23.
Drawing up and service of orders
Rule 10. The provisions of the Family Proceedings Rules relating to the drawing up and service of orders shall apply to proceedings in the Family Division under this Order as if they were proceedings under those Rules. In this rule “Family Proceedings Rules” means rules made under section 40 of the Matrimonial and Family Proceedings Act 1984.
RSC ORDER 101 THE PENSIONS APPEAL TRIBUNALS ACT 1943(238)
Assignment to Queen’s Bench Division
Rule 1. Proceedings in the High Court under the Pensions Appeal Tribunals Act 1943, shall be assigned to the Queen’s Bench Division.
Construction of reference to judge
Rule 2. In this Order references to the judge shall be construed as references to the judge nominated by the Lord Chancellor under section 6 (2) of the Pensions Appeal Tribunals Act, 1943.
Application for permission to appeal
Rule 3. (1) An application to the judge for permission to appeal against the decision of a Pensions Appeal Tribunal may not be made unless an application for such permission was made to the tribunal and was refused and must be made within 28 days after the date of the tribunal’s refusal.
(2) The application to the judge, which may be made without notice being served on any other party must be made by filing in the Crown Office a written statement of—
(a) the name and description of the applicant, (b) the point of law as respects which the applicant alleges that the tribunal’s decision was
erroneous, and (c) the date of the Tribunal’s decision refusing permission to appeal.
(238) 1943 c. 39.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
318
(3) If the application is made with the consent of the other party to the proceedings before the Tribunal, that fact shall be included in the statement.
(4) On the making of the application the court officer shall request the Chairman of the Tribunal to give the judge a written statement of the reasons for the Tribunal’s decision to refuse permission to appeal, and within 7 days after receiving the request the chairman shall give the judge such a statement.
(5) The judge may determine the application without a hearing or may direct that the application be set down for hearing in private.
(6) Where the application is determined without a hearing, a copy of the judge’s order shall be sent from the Crown Office to the applicant and to the other party to the proceedings before the Tribunal; and where the application is to be set down for hearing, notice of the day and time fixed for the hearing shall be sent from that Office to the applicant.
Appeal
Rule 4. (1) Without prejudice to Order 55, rule 3 (2), the claim form by which an appeal against the decision of a Pensions Appeal Tribunal is brought must state the question of law on which the appeal is brought, the date on which permission to appeal was granted and whether such permission was granted by the judge or the Tribunal.
(2) Order 55, rules 3 (3) and 4 (2), shall not apply in relation to such an appeal, but the notice must be served and the appeal entered within 28 days after permission to appeal was granted.
(3) Within 28 days after service of the claim form on him, the chairman of the Tribunal must state a case setting out the facts on which the decision appealed against was based and must file the case in the Crown Office and serve a copy thereof on the appellant and on the respondent.
(4) Order 55, rule 5, shall apply in relation to such an appeal as if for the period of 21 days therein mentioned there were substituted a period of 6 weeks.
(5) At the hearing of the appeal the judge may order the case to be returned to the chairman for amendment.
(6) Order 55, rule 7 (2), shall not apply in relation to the appeal. (7) A copy of the judge’s order on the appeal must be sent by the court officer to the appellant,
the respondent and the chairman of the Tribunal.
RSC ORDER 106 PROCEEDINGS RELATING TO SOLICITORS:
THE SOLICITORS ACT 1974(239)
Interpretation
Rule 1. (1) In this Order— “the Act” means the Solicitors Act 1974 and a section referred to by number means the section so numbered in that Act; “appeal” means an appeal to the High Court against an order made by the Tribunal on an application or complaint under the Act.
(2) Expressions used in this Order which are used in the Act have the same meanings in this Order as in the Act.
(239) 1974 c. 47.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
319
Jurisdiction under Part III of Act
Rule 2. (2) The jurisdiction of the High Court under Part III of the Act may be exercised by (a) A judge sitting in private (b) A master, a taxing master or a district judge of the Family Division, or (c) A district judge if the costs are for contentious business done in proceedings in the district
registry of which he is the district judge or for non contentious business.
Power to order solicitor to deliver cash account, etc.
Rule 3. (1) Where the relationship of solicitor and client exists or has existed the court may, on the application of the client or his personal representatives, make an order for—
(a) the delivery by the solicitor of a cash account; (b) the payment or delivery up by the solicitor of money or securities; (c) the delivery to the claimant of a list of the moneys or securities which the solicitor has in
his possession or control on behalf of the claimant; (d) the payment into or lodging in court of any such moneys or securities.
(2) An application for an order under this rule must be made by the issue of a claim form, or if in proceedings by an application in accordance with CPR Part 23.
(3) If the defendant alleges that he has a claim for costs, the Court may make such order for detailed assessment in accordance with CPR Part 47 and payment, or securing the payment, thereof and the protection of the defendant’s lien, if any, as the Court thinks fit.
Certificate to be submitted with solicitor’s application for detailed assessment
Rule 5A. A solicitor who applies for an order under the Act for the detailed assessment in accordance with CPR Part 47 of his bill of costs shall lodge with his application a certificate that all the relevant requirements of the Act have been satisfied.
Applications under Schedule 1 to Act
Rule 6. (1) Proceedings in the High Court under Schedule 1 to the Act shall be assigned to the Chancery Division.
(2) The claim form by which an application for an order under the said Schedule is made must be entitled in the matter of a solicitor, or a deceased solicitor, as the case may be (without naming him) and in the matter of the Act.
(3) Where an order has been made under paragraph 9 (4), 9 (5) or 10 of the said Schedule an application for an order under paragraph 9 (8) or 9 (10) may be made in accordance with CPR Part 23 in the proceedings in which the first mentioned order was made.
Defendants to applications under Schedule 1 to Act
Rule 7. The defendant to a claim by which an application for an order under Schedule 1 to the Act is made shall be—
(a) if the application is for an order under paragraph 5 thereof, the solicitor or, as the case may be, every member of the firm, on whose behalf the money in respect of which the order is sought is held;
(b) if the application is for an order under paragraph 6 (4) or 9 (8) thereof, the Law Society;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
320
(c) if the application is for an order under paragraph 8, 9 (4) or 9 (5) thereof, the person against whom the order is sought;
(d) if the application is for an order under paragraph 9 (10) thereof, the person from whom the Law Society obtained possession of the documents by virtue of paragraph 9 or 10;
(e) if the application is for an order under paragraph 10 thereof for the re-direction of postal packets addressed to a solicitor or his firm, the solicitor or, as the case may be, every member of the firm;
(f) if the application is for an order under paragraph 11 thereof, the solicitor or personal representative in substitution for whom the appointment of a new trustee is sought and, if he is a co-trustee, the other trustee or trustees.
Interim order restricting payment out of banking account
Rule 8. At any time after the issue of a claim form by which an application for an order under paragraph 5 of Schedule 1 to the Act is made, the Court may, on the application of the claimant made without notice in accordance with CPR Part 23 make an interim order under that paragraph to have effect until the hearing of the application and include therein a further order requiring the defendant to show cause at the hearing why an order under that paragraph should not be made.
Adding parties, etc.
Rule 9. The Court may, at any stage of proceedings under Schedule 1 to the Act, order any person to be added as a party to the proceedings or to be given notice thereof.
Service of documents
Rule 10. (1) Any document required to be served on the Law Society in proceedings under this Order shall be served by sending it by prepaid post to the secretary of the Law Society.
(2) Subject to paragraph (1) a claim form by which an application under Schedule 1 to the Act is made, an order under paragraph 5 of that Schedule or rule 8 and any other document not required to be served personally which is to be served on a defendant to proceedings under the said Schedule shall, unless the Court otherwise directs, be deemed to be properly served by sending it by prepaid post to the defendant at his last known address.
Constitution of Divisional Court to hear appeals
Rule 11. Every appeal shall be heard by a Divisional Court of the Queen’s Bench Division consisting, unless the Lord Chief Justice otherwise directs, of not less than three judges.
Title, service, etc., of notice of appeal
Rule 12. (1) The notice of appeal by which an appeal is brought must be entitled in the matter of a solicitor, or, as the case may be, a solicitor’s clerk, without naming him, and in the matter of the Act.
(2) Unless the Court otherwise orders, the persons to be served with such notice are every party to the proceedings before the Tribunal and the Law Society.
(3) Order 55, rule 4 (2) shall apply in relation to the appeal as if for the period of 28 days therein specified there were substituted a period of 14 days.
(4) Order 55, rule 4 (4) shall not apply and the said period of 14 days shall begin with the day on which a statement of the Tribunal’s findings was filed pursuant to section 48 (1).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
321
Law Society to produce certain documents
Rule 13. (1) Within 7 days after being served with the notice of appeal the Law Society must lodge in the Crown Office three copies of each of the following documents:—
(a) the order appealed against, together with the statement of the Tribunal’s findings required by section 48 (1) of the Act,
(b) any document lodged by a party with the Tribunal which is relevant to a matter in issue on the appeal, and
(c) the transcript of the shorthand note, or, as the case may be, the note taken by the chairman of the Tribunal of the evidence in the proceedings before the Tribunal.
(2) At the hearing of the appeal the Court shall direct by whom the costs incurred in complying with paragraph (1) are to be borne and may order them to be paid to the Law Society by one of the parties notwithstanding that the Society does not appear at the hearing.
Restriction on requiring security for costs
Rule 14. No person other than an appellant who was the applicant in the proceedings before the Tribunal, shall be ordered to give security for the costs of an appeal.
Disciplinary committee’s opinion may be required
Rule 15. The Court may direct the Tribunal to furnish the Court with a written statement of their opinion on the case which is the subject-matter of an appeal or on any question arising therein, and where such a direction is given, the clerk to the Tribunal must as soon as may be lodge three copies of such statement in the Crown Office and at the same time send a copy to each of the parties to the appeal.
Persons entitled to be heard on appeal
Rule 16. A person who has not been served with the notice of appeal but who desires to be heard in opposition to the appeal shall, if he appears to the Court to be a proper person to be so heard, be entitled to be so heard.
Discontinuance of appeal
Rule 17. (1) An appellant may at any time discontinue his appeal by serving notice of discontinuance on the clerk to the Tribunal and every other party to the appeal and, if the appeal has been entered, by lodging a copy of the notice in the Crown Office.
(2) Where an appeal has been discontinued in accordance with paragraph (1) it shall be treated as having been dismissed with an order for payment by the appellant of the costs of and incidental to the appeal, including any costs incurred by the Law Society in complying with rule 13 (1).
RSC ORDER 108 PROCEEDINGS RELATING TO CHARITIES: THE CHARITIES ACT 1993(240)
Interpretation
Rule 1. In this Order—
(240) 1993 c. 10.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
322
“the Act” means the Charities Act 1993; “certificate” means a certificate that a case is a proper one for an appeal; “charity proceedings” means proceedings in the High Court under the Court’s jurisdiction with respect to charities or under the Court’s jurisdiction with respect to trusts in relation to the administration of a trust for charitable purposes; “the Commissioners” means the Charity Commissioners for England and Wales.
Assignment to Chancery Division
Rule 2. Charity proceedings and proceedings brought in the High Court by virtue of the Act shall be assigned to the Chancery Division.
Application for permission to appeal or to take charity proceedings
Rule 3. (1) An application shall not be made under section 16 (13) of the Act for permission to appeal against an order of the Commissioners unless the applicant has requested the Commissioners to grant a certificate and they have refused to do so.
(2) An application under section 33 (5) of the Act for permission to start charity proceedings must be made within 21 days after the refusal by the Commissioners of an order authorising proceedings.
(3) The application must be made by lodging in Chancery Chambers a statement showing— (a) the name, address and description of the applicant; (b) particulars of the order against which it is desired to appeal or of the proceedings which
it is desired to take; (c) the date of the Commissioners' refusal to grant a certificate or an order authorising the
taking of proceedings; (d) the grounds on which the applicant alleges that it is a proper case for an appeal or for
taking proceedings. (4) The application may be made without notice in the first instance and if it is made with
the consent of any other party to the proposed appeal or proposed proceedings that fact shall be mentioned in the statement.
(5) If the judge on considering the application so directs, the Commissioners shall furnish him with a written statement of their reasons for refusing a certificate or, as the case may be, an order authorising the taking of proceedings, and a copy of any such statement shall be sent from Chancery Chambers to the applicant.
(6) Unless, after considering the applicant’s statement and the statement (if any) of the Commissioners, the judge decides to give the permission applied for without a hearing, the application shall be set down for hearing, and the hearing may be in private if the judge so directs.
(7) Where the application is determined without a hearing, a copy of the judge’s order shall be sent from Chancery Chambers to the applicant and the Commissioners; and where the application is to be set down for hearing, notice of the day and time fixed for the hearing shall be sent from that Office to the applicant.
Application for enforcement of order or direction of Commissioners
Rule 4. Order 52 rule 1 (4), shall apply in relation to an application under section 88 of the Act as if for the reference in that rule to a single judge of the Queen’s Bench Division there was substituted a reference to a single judge of the Chancery Division.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
323
Appeal against order, etc., of Commissioners
Rule 5. (1) An appeal against an order or decision of the Commissioners shall be heard and determined by a single judge.
(2) Such an appeal must be brought by a notice of appeal to which the Attorney-General, unless he is the appellant, shall be made a defendant in addition to any other person who is a proper defendant thereto.
(3) A notice of appeal under this rule must state the grounds of the appeal and, except with the permission of the judge hearing the appeal, the appellant shall not be entitled to rely on any ground not so stated.
Service on Commissioners
Rule 6. Any document required or authorised to be served on the Commissioners in proceedings to which this Order relates must be served on the Treasury Solicitor in accordance with Order 77, rule 4 (2).
RSC ORDER 109 THE ADMINISTRATION OF JUSTICE ACT 1960(241)
Applications under Act
Rule 1. (1) Any of the following applications, that is to say— (a) an application under section 2 of the Administration of Justice Act 1960, or under that
section as applied by section 13 of that Act, to extend the time within which an application may be made to a Divisional Court for permission to appeal to the House of Lords under section 1 of that Act, or section 13 thereof, from an order or decision of that Court, and
(b) an application by a defendant under section 9 (3) of that Act to a Divisional Court for permission to be present on the hearing of any proceedings preliminary or incidental to an appeal to the House of Lords under section 1 of that Act from a decision of that Court
must be made to a Divisional Court except in vacation when it may be made to a judge sitting in private
(2) Any such application to a Divisional Court, if not made in the proceedings before the Divisional Court from whose order or decision the appeal in question is brought, must be made by the issue of a claim form and be heard in public.
(3) Any such application to a judge sitting in private must, in the case of such an application as is referred to in paragraph (1)(a) be made by the issue of a claim form and, in the case of such an application as is referred to in paragraph (1)(b) need not be served on any other person unless, in the latter case, the judge otherwise directs.
(4) No application notice or copy of the claim form (as the case may be) by which such an application as is referred to in paragraph (1)(b) is made, need be given to any party affected thereby unless the Divisional Court otherwise directs.
(5) Where any application to which this rule applies is made in vacation to a single judge and the judge refuses the application, the applicant shall be entitled to have the application determined by a Divisional Court.
(241) 1960 c. 65.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
324
Appeals under section 13 of Act
Rule 2. (1) An appeal to a Divisional Court of the High Court under section 13 of the Administration of Justice Act 1960, shall be heard and determined by a Divisional Court of the Queen’s Bench Division.
(3) Order 55, rules 4 (2) and 5, shall not apply in relation to an appeal to a Divisional Court under the said section 13.
(4) Unless the Court gives permission, there shall be not more than 4 clear days between the date on which the order or decision appealed against was made and the day named in the notice of appeal for the hearing of the appeal.
(5) The notice must be served, and the appeal entered, not less than one clear day before the day named in the notice for the hearing of the appeal.
Release of appellant on bail
Rule 3. (1) Where, in the case of an appeal under section 13 of the Administration of Justice Act 1960, to a Divisional Court or to the House of Lords from a Divisional Court, the appellant is in custody, the High Court may order his release on his giving security (whether by recognizance, with or without sureties, or otherwise and for such reasonable sum as the Court may fix) for his appearance, within 10 days after the judgment of the Divisional Court or, as the case may be, of the House of Lords, on the appeal before the court from whose order or decision the appeal is brought unless the order or decision is reversed by that judgment.
(2) Order 79, rule 9 (1) to (6) and (8) shall apply in relation to an application to the High Court for bail pending an appeal under the said section 13 to which this rule applies, and to the admission of a person to bail in pursuance of an order made on the application, as they apply in relation to an application to that Court for bail in criminal proceedings, and to the admission of a person to bail in pursuance of an order made on the application, but with the substitution, for references to the defendant, of references to the appellant, and, for references to the prosecutor, of references to the court officer of the court from whose order or decision the appeal is brought and to the parties to the proceedings in that court who are directly affected by the appeal.
RSC ORDER 110 ENVIRONMENTAL CONTROL PROCEEDINGS
Injunctions to prevent environmental harm
Rule 1. (1) An injunction under— (a) section 187B or 214A of the Town and Country Planning Act 1990(242); (b) section 44A of the Planning (Listed Buildings and Conservation Areas) Act 1990(243); or (c) section 26AA of the Planning (Hazardous Substances) Act 1990(244)
may be granted against a person whose identity is unknown to the applicant; and in the following provisions of this rule such an injunction against such a person is referred to as “an injunction under paragraph (1),” and the person against whom it is sought is referred to as “the defendant”.
(2) An applicant for an injunction under paragraph (1) shall, in the application made in accordance with CPR Part 23, describe the defendant by reference to—
(242)1990 c. 8. (243)1990 c. 9. (244)1990 c. 10.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
325
(a) a photograph, (b) a thing belonging to or in the possession of the defendant, or (c) any other evidence,
with sufficient particularity to enable service to be effected.. (3) An applicant for an injunction under paragraph (1) shall file in support of the application
evidence by witness statement or affidavit— (a) verifying that he was unable to ascertain, within the time reasonably available to him, the
defendant’s identity, (b) setting out the action taken to ascertain the defendant’s identity, and (c) verifying the means by which the defendant has been described in the application and that
the description is the best that the applicant is able to provide. (4) Paragraph (2) is without prejudice to the power of the Court to make an order for service by
an alternative method or dispensing with service.
RSC ORDER 111 THE SOCIAL SECURITY ADMINISTRATION ACT 1992(245)
Judge by whom appeals and references to be heard
Rule 1. Any appeal to the High Court against a decision of the Secretary of State on a question of law under the Social Security Administration Act 1992, and any question of law referred to the High Court by the Secretary of State under the Act, shall be heard and determined by a single judge of the Queen’s Bench Division.
Appeal: preliminary statement of facts by Secretary of State
Rule 2. Any person who by virtue of section 18 or 58 (8) of the Social Security Administration Act 1992 is entitled and wishes to appeal against a decision of the Secretary of State on a question of law must within the prescribed period or within such further time as the Secretary of State may allow serve on the Secretary of State a notice of appeal requiring him to state a case setting out the facts on which his decision was based and his decision.
If within 28 days after receipt of notice of the decision a request is made to the Secretary of State in accordance with regulations made under the Act to furnish a statement of the grounds of the decision, the prescribed period for the purpose of this rule shall be 28 days after receipt of that statement, and if no such request is made within 28 days after receipt of notice of the decision the prescribed period for that purpose shall be 28 days after receipt of that notice.
Special provisions as to appeals
Rule 3. Order 55 shall not apply in relation to an appeal under the said section 18 or 58 (8) but Order 56, rules 9 to 12, shall apply in relation to the case stated by the Secretary of State for the purpose of any such appeal as they apply in relation to any other case stated by a Minister except that Order 56, rule 10 (4) and (7) as so applied, shall have effect as if for the period of 14 days and 7 days therein specified there were substituted a period of 28 days.
(245) 1992 c. 5.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
326
Reference of question of law
Rule 4. (1) Where under the said section 18 or 58 (8) the Secretary of State refers to the High Court for decision any question of law, he must state that question together with the facts relating thereto in a case.
(2) Order 56, rules 9 (1), 10 (1), 11 and 12, shall apply in relation to a case stated under paragraph (1) of this rule as they apply in relation to any other case stated by a Secretary of State.
(3) The notice of appeal by which proceedings for the determination of the question of law stated in the case are begun, together with a copy of the case, must be served by the Secretary of State on every person as between whom and the Secretary of State the question has arisen.
(4) Unless the Court having jurisdiction to determine the question of law otherwise directs, the appeal or reference shall not be heard sooner than 28 days after service of notice of appeal.
Powers of Court hearing appeal or reference
Rule 5. (1) Without prejudice to Order 56, rule 11, as applied by rules 3 and 4 of this Order, the Court hearing an appeal or reference under the said section 18 or 58 (8) may order the case stated by the Secretary of State to be returned to the Secretary of State for him to hear further evidence.
(2) The Court hearing such an appeal or reference shall determine all questions arising thereon, and in the case of any such appeal may reverse, affirm or amend the decision appealed against or make such other order as it thinks fit.
RSC ORDER 112 APPLICATIONS FOR USE OF BLOOD TESTS IN DETERMINING PATERNITY
Interpretation
Rule 1. In this Order— “the Act” means Part III of the Family Law Reform Act 1969(246); “blood samples” and “blood tests” have the meanings assigned to them by section 25 of the Act; “direction” means a direction for the use of blood tests under section 20 (1) of the Act; “the court officer” means the officer of the court who draws up a direction.
Application for direction
Rule 2. (1) Except with the permission of the court, an application in any proceedings for a direction shall be in accordance with CPR Part 23 and a copy of the application notice shall be served on every party to the proceedings (other than the applicant) and on any other person from whom the direction involves the taking of blood samples.
(3) Any notice required by this rule to be served on a person who is not a party to the proceedings shall be served on him personally.
Applications involving children under 16 and patients
Rule 3. Where an application is made for a direction in respect of a person who is either— (a) under 16 , or
(246)1969 c. 46.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
327
(b) suffering from a mental disorder within the meaning of the Mental Health Act 1983(247) and incapable of understanding the nature and purpose of blood tests,
the application notice or claim form shall state the name and address of the person having the care and control of the person under disability and shall be served on him instead of on the person under disability.
Addition as a party of person to be tested
Rule 4. Where an application is made for a direction involving the taking of blood samples from a person who is not a party to the proceedings in which the application is made, the court may at any time direct that person to be made a party to the proceedings.
Service of direction and adjournment of proceedings
Rule 5. Where the court gives a direction in any proceedings, the court officer shall send a copy to every party to the proceedings and to every other person from whom the direction involves the taking of blood samples and, unless otherwise ordered, further consideration of the proceedings shall be adjourned until the court receives a report pursuant to the direction.
Service of copy report
Rule 6. On receipt by the court of a report made pursuant to a direction, the proper officer shall send a copy to every party to the proceedings and to every other person from whom the direction involved the taking of blood samples.
RSC ORDER 113 SUMMARY PROCEEDINGS FOR POSSESSION OF LAND
Proceedings to be brought by claim form
Rule 1. (1) Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings shall be brought by claim form in accordance with the provisions of this Order.
(2) Where proceedings of the type referred to in paragraph (1) are brought, the court will fix a day for the hearing when it issues the claim form.
Jurisdiction of Masters
Rule 1A. Proceedings under this Order may be heard and determined by a master, who may refer them to a judge if he thinks they should properly be decided by the judge.
Forms of claim form
Rule 2. (1) The claim form shall be as set out in the relevant practice direction and no acknowledgment of service of it shall be required.
(2) The claim form shall be endorsed with or contain a statement showing whether possession is claimed in respect of residential premises or in respect of other land.
(247)1983 c. 20.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
328
Witness statement or affidavit in support
Rule 3. The claimant shall file in support of the claim form a witness statement or affidavit stating—
(a) his interest in the land; (b) the circumstances in which the land has been occupied without licence or consent and in
which his claim to possession arises; and (c) that he does not know the name of any person occupying the land who is not named in
the claim form;
and, unless the Court directs, any such witness statement or affidavit may contain statements of information or belief with the sources and grounds thereof.
Service of claim form
Rule 4. (1) Where any person in occupation of the land is named in the claim form, the claim form together with a copy of the witness statement or affidavit in support shall be served on him—
(a) personally; or (b) by leaving a copy of the claim form and of the witness statement or affidavit or sending
them to him, at the premises; or (c) in such other manner as the Court may direct.
(2) Where any person not named as a defendant is in occupation of the land, the claim form shall be served (whether or not it is also required to be served in accordance with paragraph (1)), unless the court otherwise directs, by—
(a) affixing a copy of the claim form and a copy of the witness statement or affidavit to the main door or other conspicuous part of the premises and, if practicable, inserting through the letter-box at the premises a copy of the claim form and a copy of the witness statement or affidavit enclosed in a sealed transparent envelope addressed to “the occupiers”, or
(b) placing stakes in the ground at conspicuous parts of the occupied land, to each of which shall be affixed a sealed transparent envelope addressed to “the occupiers” and containing a copy of the claim form and a copy of the witness statement or affidavit.
(2A) Every copy of a claim form for service under paragraph (1) or (2) shall be sealed with the seal of the Office of the Supreme Court out of which the claim form was issued.
Application by occupier to be made a party
Rule 5. Any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as a defendant.
Order for possession
Rule 6. (1) A final order for possession in proceedings under this Order shall, except in case of emergency and by permission of the court, not be made—
(a) in the case of residential premises, less than five clear days after the date of service, and (b) in the case of other land, less than two clear days after the date of service.
(2) An order for possession in proceedings under this Order shall be in Form No. 42A. (3) Nothing in this Order shall prevent the Court from ordering possession to be given on a
specified date, in the exercise of any power which could have been exercised if possession had been sought in a claim begun in accordance with CPR Part 7.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
329
Writ of possession
Rule 7. (1) Order 45, rule 3 (2) shall not apply in relation to an order for possession under this Order but no writ of possession to enforce such an order shall be issued after the expiry of three months from the date of the order without the permission of the Court.
An application for permission may be made without notice being served on any other party unless the Court otherwise directs.
(2) The writ of possession shall be in Form No. 66A.
Setting aside order
Rule 8. The court may, on such terms as it thinks just, set aside or vary any order made in proceedings under this Order.
RSC ORDER 114 REFERENCES TO THE EUROPEAN COURT
Interpretation
Rule 1. In this Order— “the Court” means the court by which an order is made and includes the Court of Appeal; “the European Court” means the Court of Justice of the European Communities; and “order” means an order referring a question to the European Court for a preliminary ruling under article 177 of the Treaty establishing the European Community, Article 150 of the Treaty establishing the European Atomic Energy Community or Article 41 of the Treaty establishing the European Coal and Steel Community or for a ruling on the interpretation of any of the Brussels Conventions (within the meaning of s.1 (1) of the Civil Jurisdiction and Judgments Act 1982(248)) or any of the instruments referred to in s.1 of the Contracts (Applicable Law) Act 1990(249).
Making of order
Rule 2. (1) An order may be made by the Court of its own initiative at any stage in proceedings, or on application by a party before or at the trial or hearing thereof.
(2) Where an application is made before the trial or hearing, it shall be made by claim form. (3) In the High Court no order shall be made except by a judge in person.
Schedule to order to set out request for ruling
Rule 3. An order shall set out in a schedule the request for the preliminary ruling of the European Court, and the Court may give directions as to the manner and form in which the schedule is to be prepared.
Stay of proceedings pending ruling
Rule 4. The proceedings in which an order is made shall, unless the Court otherwise orders, be stayed until the European Court has given a preliminary ruling on the question referred to it.
(248)1982 c. 27. (249)1990 c. 36.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
330
Transmission of order to the European Court
Rule 5. When an order has been made, the Senior Master shall send a copy thereof to the Registrar of the European Court; but in the case of an order made by the High Court, he shall not do so, unless the Court otherwise orders, until the time for appealing against the order has expired or, if an appeal is entered within that time, until the appeal has been determined or otherwise disposed of.
Appeals from orders made by High Court
Rule 6. On an appeal to the Court of Appeal from an order made by the High Court the period within which a notice of appeal must be served under Order 59, rule 4 (1) shall be 14 days.
RSC ORDER 115 CONFISCATION AND FORFEITURE IN
CONNECTION WITH CRIMINAL PRO CEEDINGS
I. Drug Trafficking Act 1994(250) and Criminal Justice (International Co-operation) Act 1990(251)
Interpretation
Rule 1. (1) In this Part of this Order, “The Act” means the Drug Trafficking Act 1994 and a section referred to by number means the section so numbered in the Act.
(2) Expressions used in this Part of this Order which are used in the Act have the same meanings in this Part of this Order as in the Act and include any extended meaning given by the Criminal Justice (Confiscation) (Northern Ireland) Order 1990.
Assignment of proceedings
Rule 2. Subject to rule 12, the jurisdiction of the High Court under the Act shall be exercised by a judge of the Chancery Division or of the Queen’s Bench Division sitting in private.
Title of proceedings
Rule 2A. An application made in accordance with CPR Part 23, or a claim form issued in relation to proceedings under this Part of this Order shall be entitled in the matter of the defendant, naming him, and in the matter of the Act, and all subsequent documents in the matter shall be so entitled.
Application for confiscation order
Rule 2B. (1) An application by the prosecutor for a confiscation order under section 19 shall be made in accordance with CPR Part 23 where there have been proceedings against the defendant in the High Court, and shall otherwise be made by the issue of a claim form.
(2) The application shall be supported by a witness statement or affidavit giving full particulars of the following matters—
(a) the grounds for believing that the defendant has died or absconded; (b) the date or approximate date on which the defendant died or absconded;
(250)1994 c. 37. (251)1990 c. 5.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
331
(c) where the application is made under section 19 (2), the offence or offences of which the defendant was convicted, and the date and place of conviction;
(d) where the application is made under section 19 (4), the proceedings which have been initiated against the defendant (including particulars of the offence and the date and place of institution of those proceedings); and
(e) where the defendant is alleged to have absconded, the steps taken to contact him. (3) The prosecutor’s statement under section 11 shall be exhibited to the witness statement or
affidavit and shall include the following particulars— (a) the name of the defendant; (b) the name of the person by whom the statement is given; (c) such information known to the prosecutor as is relevant to the determination whether the
defendant has benefited from drug trafficking and to the assessment of the value of his proceeds of drug trafficking.
(4) Unless the Court otherwise orders, a witness statement or affidavit under paragraph (2) may contain statements of information and belief, with their sources and grounds.
(5) The application and the witness statement or affidavit in support shall be served not less than 7 days before the date fixed for the hearing of the application on—
(a) the defendant (or on the personal representatives of a deceased defendant); (b) any person who the prosecutor reasonably believes is likely to be affected by the making
of a confiscation order; and (c) the receiver, where one has been appointed in the matter.
Application for restraint order or charging order
Rule 3. (1) An application for a restraint order under section 26 or for a charging order under section 27 (to either of which may be joined an application for the appointment of a receiver) may be made by the prosecutor by the issue of a claim form, notice of which need not be served on any other party.
(2) An application under paragraph (1) shall be supported by a witness statement or affidavit, which shall—
(a) give the grounds for the application; and (b) to the best of the witness’s ability, give full particulars of the realisable property in respect
of which the order is sought and specify the person or persons holding such property. (3) Unless the Court otherwise directs, a witness statement or affidavit under paragraph (2) may
contain statements of information or belief with the sources and grounds thereof.
Restraint order and charging order
Rule 4. (1) A restraint order may be made subject to conditions and exceptions, including but not limited to conditions relating to the indemnifying of third parties against expenses incurred in complying with the order, and exceptions relating to living expenses and legal expenses of the defendant, but the prosecutor shall not be required to give an undertaking to abide by any order as to damages sustained by the defendant as a result of the restraint order.
(2) Unless the Court otherwise directs, a restraint order made where notice of it has not been served on any person shall have effect until a day which shall be fixed for the hearing where all parties may attend on the application and a charging order shall be an order to show cause, imposing the charge until such day.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
332
(3) Where a restraint order is made the prosecutor shall serve copies of the order and of the witness statement or affidavit in support on the defendant and on all other named persons restrained by the order and shall notify all other persons or bodies affected by the order of its terms.
(4) Where a charging order is made the prosecutor shall serve copies of the order and of the witness statement or affidavit in support on the defendant and, where the property to which the order relates is held by another person, on that person and shall serve a copy of the order on such of the persons or bodies specified in Order 50, rule 2 (1)(b) to (d) as shall be appropriate.
Discharge or variation of order
Rule 5. (1) Any person or body on whom a restraint order or a charging order is served or who is notified of such an order may make an application in accordance with CPR Part 23 to discharge or vary the order.
(2) The summons and any witness statement or affidavit in support shall be lodged with the court and served on the prosecutor and, where he is not the applicant, on the defendant, not less than two clear days before the date fixed for the hearing of the summons.
(3) Upon the court being notified that proceedings for the offences have been concluded or that the amount, payment of which is secured by a charging order has been paid into court, any restraint order or charging order, as the case may be, shall be discharged.
(4) The Court may also discharge a restraint order or a charging order upon receiving notice from the prosecutor that it is no longer appropriate for the restraint order or the charging order to remain in place.
Further application by prosecutor
Rule 6. (1) Where a restraint order or a charging order has been made the prosecutor may apply by an application in accordance with CPR Part 23 with notice or, where the case is one of urgency or the giving of notice would cause a reasonable apprehension of dissipation of assets, without notice—
(a) to vary such order, or (b) for a restraint order or a charging order in respect of other realisable property, or (c) for the appointment of a receiver.
(2) An application under paragraph (1) shall be supported by a witness statement or affidavit which, where the application is for a restraint order or a charging order, shall to the best of the witness’s ability give full particulars of the realisable property in respect of which the order is sought and specify the person or persons holding such property.
(3) The application and witness statement or affidavit in support shall be lodged with the court and served on the defendant and, where one has been appointed in the matter, on the receiver, not less than two clear days before the date fixed for the hearing of the summons.
(4) Rule 4 (3) and (4) shall apply to the service of restraint orders and charging orders respectively made under this rule on persons other than the defendant.
Realisation of property
Rule 7. (1) An application by the prosecutor under section 29 shall, where there have been proceedings against the defendant in the High Court, be made by an application in accordance with CPR Part 23 and shall otherwise be made by the issue of a claim form
(2) The application notice or claim form, as the case may be, shall be served with the evidence in support not less than 7 days before the date fixed for the hearing of the application or claim on:—
(a) the defendant,
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
333
(b) any person holding any interest in the realisable property to which the application relates, and
(c) the receiver, where one has been appointed in the matter. (3) The application shall be supported by a witness statement or affidavit, which shall, to the best
of the witness’s ability, give full particulars of the realisable property to which it relates and specify the person or persons holding such property, and a copy of the confiscation order, of any certificate issued by the Crown Court under section 5 (2) and of any charging order made in the matter shall be exhibited to such witness statement or affidavit.
(4) The Court may, on an application under section 29— (a) exercise the power conferred by section 30 (2) to direct the making of payments by a
receiver; (b) give directions in respect of the property interests to which the application relates; and (c) make declarations in respect of those interests.
Receivers
Rule 8. (1) Subject to the provisions of this rule, the provisions of Order 30, rules 2 to 8 shall apply where a receiver is appointed in pursuance of a charging order or under sections 26 or 29.
(2) Where the receiver proposed to be appointed has been appointed receiver in other proceedings under the Act, it shall not be necessary for a witness statement or affidavit of fitness to be sworn or for the receiver to give security, unless the Court otherwise orders.
(3) Where a receiver has fully paid the amount payable under the confiscation order and any sums remain in his hands, he shall make an application to the court for directions in accordance with CPR Part 23, as to the distribution of such sums.
(4) An application under paragraph (3) shall be served with any evidence in support not less than 7 days before the date fixed for the hearing of the application on:—
(a) the defendant, and (b) any other person who held property realised by the receiver.
(5) A receiver may apply for an order to discharge him from his office by making an application in accordance with CPR Part 23, which shall be served, together with any evidence in support, on all persons affected by his appointment not less than 7 days before the day fixed for the hearing of the application.
Certificate of inadequacy
Rule 9. (1) The defendant or a receiver appointed under section 26 or 29 or in pursuance of a charging order may apply in accordance with CPR Part 23 for a certificate under section 17 (1).
(2) An application under paragraph (1) shall be served with any supporting evidence not less than 7 days before the date fixed for the hearing of the application on the prosecutor and, as the case may be, on either the defendant or the receiver (where one has been appointed).
Certificate under section 16
Rule 9A. An application under section 16 (2) (increase in realisable property) shall be served with any supporting evidence not less than 7 days before the date fixed for the hearing of the application on the defendant and, as the case may be, on either the prosecutor or (where one has been appointed in the matter) on the receiver.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
334
Compensation
Rule 10. An application for an order under section 18 shall be made in accordance with CPR Part 23, which shall be served, with any supporting evidence, on the person alleged to be in default and on the relevant authority under section 18 (5) not less than 7 days before the date fixed for the hearing of the application.
Disclosure of information
Rule 11. (1) An application by the prosecutor under section 59 shall be made in accordance with CPR Part 23 and the application notice shall state the nature of the order sought and whether material sought to be disclosed is to be disclosed to a receiver appointed under section 26 or 29 or in pursuance of a charging order or to a person mentioned in section 59 (8).
(2) The application notice and witness statement or affidavit in support shall be served on the authorised Government Department in accordance with Order 77, rule 4 not less than 7 days before the date fixed for the hearing of the application.
(3) The witness statement or affidavit in support of an application under paragraph (1) shall state the grounds for believing that the conditions in section 59 (4) and, if appropriate, section 59 (7) are fulfilled.
Compensation for, discharge and variation of confiscation order
Rule 11A. (1) An application under section 21, 22 or 23 shall be made in accordance with CPR Part 23 which, together with any evidence in support, shall be lodged with the Court and served on the prosecutor not less than 7 days before the day fixed for the hearing of the application.
(2) Notice shall also be served on any receiver appointed in pursuance of a charging order or under section 26 or 29.
(3) An application for an order under section 22 shall be supported by a witness statement or affidavit giving details of—
(a) the confiscation order made under section 19 (4); (b) the acquittal of the defendant; (c) the realisable property held by the defendant; and (d) the loss suffered by the applicant as a result of the confiscation order.
(4) An application for an order under section 23 shall be supported by a witness statement or affidavit giving details of—
(a) the confiscation order made under section 19 (4); (b) the date on which the defendant ceased to be an absconder; (c) the date on which proceedings against the defendant were instituted and a summary of the
steps taken in the proceedings since then; and (d) any indication given by the prosecutor that he does not intend to proceed against the
defendant. (5) An application made under section 21 shall be supported by a witness statement or affidavit
giving details of— (a) the confiscation order made under section 19(4); (b) the circumstances in which the defendant ceased to be an absconder; and (c) the amounts referred to in section 21 (2).
(6) Where an application is made for an order under section 23 (3) or 24 (2)(b), the witness statement or affidavit shall also include—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
335
(a) details of the realisable property to which the application relates; and (b) details of the loss suffered by the applicant as a result of the confiscation order.
(7) Unless the Court otherwise orders, a witness statement or affidavit under paragraphs (3) to (6) may contain statements of information and belief, with the sources and grounds thereof.
Exercise of powers under sections 37 and 40
Rule 12. The powers conferred on the High Court by sections 37 and 40 may be exercised by a judge sitting in private, and a master of the Queen’s Bench Division.
Application for registration
Rule 13. An application for registration of an order specified in an Order in Council made under section 37 or of an external confiscation order under section 40 (1) must be made in accordance with CPR Part 23, and may be made without notice.
Evidence in support of application under section 37
Rule 14. An application for registration of an order specified in an Order in Council made under section 37 must be made in accordance with CPR Part 23, and be supported by a witness statement or affidavit—
(i) exhibiting the order or a certified copy thereof, and (ii) stating, to the best of the witness’s knowledge, particulars of what property the
person against whom the order was made holds in England and Wales, giving the source of the witness’s knowledge.
Evidence in support of application under section 40 (1)
Rule 15. (1) An application for registration of an external confiscation order must be made in accordance with CPR Part 23, and be supported by a witness statement or affidavit—
(a) exhibiting the order or a verified or certified or otherwise duly authenticated copy thereof and, where the order is not in the English language, a translation thereof into English certified by a notary public or authenticated by witness statement or affidavit, and
(b) stating— (i) that the order is in force and is not subject to appeal,
(ii) where the person against whom the order was made did not appear in the proceedings, that he received notice thereof in sufficient time to enable him to defend them,
(iii) in the case of money, either that at the date of the application the sum payable under the order has not been paid or the amount which remains unpaid, as may be appropriate, or, in the case of other property, the property which has not been recovered, and
(iv) to the best of the witness’s knowledge, particulars of what property the person against whom the order was made holds in England and Wales, giving the source of the witness’s knowledge.
(2) Unless the Court otherwise directs, a witness statement or affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
336
Register of orders
Rule 16. (1) There shall be kept in the Central Office under the direction of the Master of the Crown Office a register of the orders registered under the Act.
(2) There shall be included in such register particulars of any variation or setting aside of a registration and of any execution issued on a registered order.
Notice of registration
Rule 17. (1) Notice of the registration of an order must be served on the person against whom it was obtained by delivering it to him personally or by sending it to him at his usual or last known address or place of business or in such other manner as the Court may direct.
(2) Service of such a notice out of the jurisdiction is permissible without leave, and Order 11, rules 5, 6 and 8 shall apply in relation to such a notice as they apply in relation to a claim form.
Application to vary or set aside registration
Rule 18. An application made in accordance with CPR Part 23 by the person against whom an order was made to vary or set aside the registration of an order must be made to a judge and be supported by witness statement or affidavit.
Enforcement of order
Rule 19. (2) If an application is made under rule 18, an order shall not be enforced until after such application is determined.
Variation, satisfaction and discharge of registered order
Rule 20. Upon the court being notified by the applicant for registration that an order which has been registered has been varied, satisfied or discharged, particulars of the variation, satisfaction or discharge, as the case may be, shall be entered in the register.
Rules to have effect subject to Orders in Council
Rule 21. Rules 12 to 20 shall have effect subject to the provisions of the Order in Council made under section 37 or, as the case may be, of the Order in Council made under section 39.
Criminal Justice (International Co-operation) Act 1990: external forfeiture orders
Rule 21A. The provisions of this Part of this Order shall, with such modifications as are necessary and subject to the provisions of any Order in Council made under section 9 of the Criminal Justice (International Co-operation) Act 1990(252), apply to proceedings for the registration and enforcement of external forfeiture orders as they apply to such proceedings in relation to external confiscation orders.
For the purposes of this rule, an external forfeiture order is an order made by a court in a country or territory outside the United Kingdom which is enforceable in the United Kingdom by virtue of any such Order in Council.
II. Part VI of the Criminal Justice Act 1988(253)
(252)1990 c. 5. (253)1988 c. 33.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
337
Interpretation
Rule 22. (1) In this Part of this Order, “the 1988 Act” means the Criminal Justice Act 1988 and a section referred to by number means the section so numbered in that Act.
(2) Expressions which are used in this Part of this Order which are used in the 1988 Act have the same meanings in this Part of this Order as in the 1988 Act and include any extended meaning given by the Criminal Justice (Confiscation) (Northern Ireland) Order 1990.
Application of Part I of Order 115
Rule 23. Part I of Order 115 (except rule 11) shall apply for the purposes of proceedings under Part VI of the 1988 Act with the necessary modifications and, in particular,—
(a) references to drug trafficking offences and to drug trafficking shall be construed as references to offences to which Part VI of the 1988 Act applies and to committing such an offence;
(b) references to the Drug Trafficking Act 1994 shall be construed as references to the 1988 Act and references to sections 5 (2), 26, 27, 29, 30 (2), 17 (1), 18, 18 (5), 39 and 40 of the 1994 Act shall be construed as references to sections 73 (6), 77, 78, 80, 81, 81 (1), 83 (1), 89, 89 (5), 96 and 97 of the 1988 Act respectively;
(c) rule 3 (2) shall have effect as if the following sub-paragraphs were substituted for sub- paragraphs (a) and (b)—
“(a) state, as the case may be, either that proceedings have been instituted against the defendant for an offence to which Part VI of the 1988 Act applies (giving particulars of the offence) and that they have not been concluded or that, whether by the laying of an information or otherwise, a person is to be charged with such an offence;
(b) state, as the case may be, either that a confiscation order has been made or the grounds for believing that such an order may be made;”
(d) rule 7 (3) shall have effect as if the words “certificate issued by a magistrates' court or the Crown Court” were substituted for the words “certificate issued by the Crown Court”;
(e) rule 8 shall have effect as if the following paragraph were added at the end— “(6) Where a receiver applies in accordance with CPR Part 23 for the variation of a
confiscation order, the application notice shall be served, with any supporting evidence, on the defendant and any other person who may be affected by the making of an order under section 83 of the 1988 Act, not less than 7 days before the date fixed for the hearing of the application.;”
(f) rule 11 shall apply with the necessary modifications where an application is made under section 93J of the 1988 Act for disclosure of information held by government departments.
III: Prevention of Terrorism (Temporary Provisions) Act 1989(254)
Interpretation
Rule 24. In this Part of this Order— (a) “the Act” means the Prevention of Terrorism (Temporary Provisions) Act 1989; (b) “Schedule 4” means Schedule 4 to the Act; and
(254)1989 c. 4.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
338
(c) expressions used have the same meanings as they have in Part III of, and Schedule 4 to, the Act.
Assignment of proceedings
Rule 25. (1) Subject to paragraph (2), the jurisdiction of the High Court under the Act shall be exercised by a judge of the Queen’s Bench Division or of the Chancery Division sitting in private
(2) The jurisdiction conferred on the High Court by paragraph 9 of Schedule 4 may also be exercised by a master of the Queen’s Bench Division.
Application for restraint order
Rule 26. (1) An application for a restraint order under paragraphs 3 and 4 of Schedule 4 may be made by the prosecutor by a claim form, which need not be served on any person.
(2) An application under paragraph (1) shall be supported by a witness statement or affidavit, which shall:—
(a) state, as the case may be, either that proceedings have been instituted against a person for an offence under Part III of the Act and that they have not been concluded or that, whether by the laying of an information or otherwise, a person is to be charged with such an offence; and, in either case, give particulars of the offence;
(b) state, as the case may be, that a forfeiture order has been made in the proceedings or the grounds for believing that such an order may be made;
(c) to the best of the witness’s ability, give full particulars of the property in respect of which the order is sought and specify the person or persons holding such property and any other persons having an interest in it;
(d) where proceedings have not been instituted, verify that the prosecutor is to have the conduct of the proposed proceedings;
(e) where proceedings have not been instituted, indicate when it is intended that they should be instituted.
(3) A claim form under paragraph (1) shall be entitled in the matter of the defendant, naming him, and in the matter of the Act, and all subsequent documents in the matter shall be so entitled.
(4) Unless the Court otherwise directs, a witness statement or affidavit under paragraph (2) may contain statements of information or belief with the sources and grounds thereof.
Restraint order
Rule 27. (1) A restraint order may be made subject to conditions and exceptions, including but not limited to conditions relating to the indemnifying of third parties against expenses incurred in complying with the order, and exceptions relating to living expenses and legal expenses of the defendant, but the prosecutor shall not be required to give an undertaking to abide by any order as to damages sustained by the defendant as a result of the restraint order.
(2) Unless the Court otherwise directs, a restraint order made without notice of it being served on any person shall have effect until a day which shall be fixed for the hearing where all parties may attend on the application.
(3) Where a restraint order is made the prosecutor shall serve copies of the order and of the witness statement or affidavit in support on the defendant and on all other persons affected by the order.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
339
Discharge or variation of order
Rule 28. (1) Subject to paragraph (2), an application to discharge or vary a restraint order shall be made in accordance with CPR Part 23.
(2) Where the case is one of urgency, an application under this rule by the prosecutor may be made without notice.
(3) The application and any witness statement or affidavit in support shall be lodged with the court and, where the application is made in accordance with CPR Part 23 the application notice shall be served on the following persons (other than the applicant)—
(a) the prosecutor; (b) the defendant; and (c) all other persons restrained or otherwise affected by the order;
not less than two clear days before the date fixed for the hearing of the application. (4) Where a restraint order has been made and has not been discharged, the prosecutor shall
notify the court when proceedings for the offence have been concluded, and the court shall thereupon discharge the restraint order.
(5) Where an order is made discharging or varying a restraint order, the applicant shall serve copies of the order of discharge or variation on all persons restrained by the earlier order and shall notify all other persons affected of the terms of the order of discharge or variation.
Compensation
Rule 29. An application for an order under paragraph 7 of Schedule 4 shall be made in accordance with CPR Part 23, and the application notice, shall be served, with any supporting evidence, on the person alleged to be in default and on the relevant authority under paragraph 7 (5) not less than 7 days before the date fixed for the hearing of the application.
Application for registration
Rule 30. An application for registration of a Scottish order, a Northern Ireland order or an Islands order must be made in accordance with CPR Part 23 and may be made without notice.
Evidence in support of application
Rule 31. (1) An application for registration of any such order as is mentioned in rule 30 must be supported by a witness statement or affidavit—
(a) exhibiting the order or a certified copy thereof, and (b) which shall, to the best of the witness’s ability, give particulars of such property in respect
of which the order was made as is in England and Wales, and specify the person or persons holding such property.
(2) Unless the Court otherwise directs, a witness statement or affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.
Register of orders
Rule 32. (1) There shall be kept in the Central Office under the direction of the Master of the Crown Office a register of the orders registered under the Act.
(2) There shall be included in such register particulars of any variation or setting aside of a registration, and of any execution issued on a registered order.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
340
Notice of registration
Rule 33. (1) Notice of the registration of an order must be served on the person or persons holding the property referred to in rule 31(1)(b) and any other persons appearing to have an interest in that property.
(2) Service of such a notice out of the jurisdiction is permissible without leave, and Order 11, rules 5, 6 and 8 shall apply in relation to such a notice as they apply in relation to a claim form.
Application to vary or set aside registration
Rule 34. An application to vary or set aside the registration of an order must be made to a judge in accordance with CPR Part 23 and be supported by a witness statement or affidavit.
This rule does not apply to a variation or cancellation under rule 36.
Enforcement of order
Rule 35. (2) If an application is made under rule 34, an order shall not be enforced until after such application is determined.
(3) This rule does not apply to the taking of steps under paragraph 5 or 6 of Schedule 4, as applied by paragraph 9 (6) of that Schedule.
Variation and cancellation of registration
Rule 36. If effect has been given (whether in England or Wales or elsewhere) to a Scottish, Northern Ireland or Islands order, or if the order has been varied or discharged by the court by which it was made, the applicant for registration shall inform the court and—
(a) if such effect has been given in respect of all the money or other property to which the order applies, or if the order has been discharged by the court by which it was made, registration of the order shall be cancelled;
(b) if such effect has been given in respect of only part of the money or other property, or if the order has been varied by the court by which it was made, registration of the order shall be varied accordingly.
SCHEDULE 2 Rule 50(4)
CCR ORDER 1 CITATION, APPLICATION AND INTERPRETATION
Application of RSC to county court proceedings
Rule 6. Where by virtue of these rules or section 76 of the Act or otherwise any provision of the RSC is applied in relation to proceedings in a county court, that provision shall have effect with the necessary modifications and in particular—
(b) any reference in that provision to a master, district judge of the principal registry of the Family Division, the Admiralty registrar, or a district judge or taxing officer shall be construed as a reference to the district judge of the county court; and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
341
(d) any reference in that provision to an office of the Supreme Court having the conduct of the business of a division or court or a district registry shall be construed as a reference to the county court office.
CCR ORDER 3 COMMENCEMENT OF PROCEEDINGS
Appeals to county court
Rule 6. (1) Where by or under any Act an appeal lies to a county court from any order, decision or award of any tribunal or person, then, subject to any special provision made by or under the Act, the provisions of this rule shall apply.
(2) The appellant shall, within 21 days after the date of the order, decision or award, file— (a) a request for the entry of the appeal, stating the names and addresses of the persons
intended to be served (in this rule called “respondents”) and the appellant’s address for service, together with as many copies of the request as there are respondents; and
(b) a copy of the order, decision or award appealed against. (3) Where the provision under which the appeal lies requires the appellant to give to the other
parties notice in writing of his intention to appeal and of the grounds of his appeal, the appellant shall file a copy of such notice with the request, and in any other case he shall include in his request a statement of the grounds of the appeal.
(4) On the filing of the documents mentioned in paragraphs (2) and (3) the court officer shall— (a) enter the appeal in the records of the court and fix the return day; (b) prepare a notice to each respondent of the day on which the appeal will be heard and annex
each copy of the request for the entry of the appeal to a copy of the notice; and (c) deliver a notice of issue to the appellant.
(5) The return day shall be a day fixed for the hearing of the appeal by the judge (or, if the district judge has jurisdiction to hear the appeal, by the district judge) or, if the court so directs, a day fixed for a pre-trial review.
(6) The notice of the day of hearing shall be served— (a) by the appellant delivering the notice to the respondent personally; or (b) by the court sending it by first-class post to the respondent—
(i) at his address for service; or (ii) where CPR rule 6.5(5) applies at the place of service specified in that rule.
(7) Unless the appellant otherwise requests, service shall be effected in accordance with paragraph (6)(b).
(8) Where a notice is served in accordance with paragraph (6)(b) the date of service shall, unless the contrary is shown, be deemed to be the seventh day after the date on which the notice was sent to the respondent.
(9) Where— (a) a notice has been sent by post in accordance with paragraph (6)(b) to the respondent’s
address for service; and (b) the notice has been returned to the court office undelivered,
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
342
the court shall send notice of non-service to the appellant pursuant to CPR Rule 6.11 together with a notice informing him that he may request bailiff service at that address.
(10) If the appellant requests bailiff service under paragraph (9), it shall be effected by a bailiff of the court—
(a) inserting the notice, enclosed in an envelope addressed to the respondent, through the letter-box at the respondent’s address for service;
(b) delivering the notice to some person, apparently not less than 16 years old, at the respondent’s address for service; or
(c) delivering the notice to the respondent personally. (11) Service of a notice shall be effected not less than 21 days before the hearing, but service may
be effected at any time before the hearing on the appellant satisfying the court by witness statement or affidavit that the respondent is about to remove from his address for service.
CCR ORDER 4 VENUE FOR BRINGING PROCEEDINGS
Proceedings relating to land
Rule 3. Proceedings— (a) for the recovery of land; (b) for the foreclosure or redemption of any mortgage or, subject to Order 31, rule 4, for
enforcing any charge or lien on land; or (c) for the recovery of moneys secured by a mortgage or charge on land,
may be commenced only in the court for the district in which the land or any part of the land is situated.
CCR ORDER 5 CAUSES OF ACTION AND PARTIES
Representative proceedings
Rule 5. (1) Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 6, the proceedings may be begun and, unless the court otherwise orders, continued, by or against any one or more of them as representing all or all except one or more of them.
(2) At any stage of proceedings under this rule the court may— (a) on the application of a claimant who is suing in a representative capacity, appoint him to
represent all, or all except one or more, of the persons on whose behalf he sues; (b) on the application of the claimant or of a defendant who is sued in a representative capacity,
appoint any one or more of the defendants or other persons on whose behalf the defendants are sued to represent all, or all except one or more, of those persons.
Where in the exercise of the power conferred by sub-paragraph (b) the court appoints a person not named as a defendant, it shall make an order under CPR rule 19.1 adding that person as a defendant.
(3) An application under paragraph (2)—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
343
(a) if made under sub-paragraph (a), may be made without notice being served on any other party;
(b) if made under sub-paragraph (b), shall be made on notice— (i) where the applicant is the claimant, to the person sought to be appointed, or
(ii) where the applicant is a defendant, to the claimant and to any person, other than the applicant, sought to be appointed;
and in each case the notice shall state the facts on which the applicant relies and the names and addresses or, where appropriate a collective description, of the persons to be represented.
(4) Where an order is made granting an application under paragraph (2)(b), the court shall send a notice of the order to the person to whom notice of the application was given and shall notify other persons affected by the order in such manner as the court may direct.
(5) A judgment or order given or made in proceedings under this rule shall be binding on all persons on whose behalf the claimant sues or, as the case may be, the defendant is sued but shall not be enforced against any person not a party to the proceedings except with the permission of the court.
(6) An application for permission under paragraph (5) shall be made on notice to the person against whom it is sought to enforce the judgment or order and, notwithstanding that the judgment or order is binding on him, he may dispute liability to have it enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability.
Representation of person or class
Rule 6. (1) In any proceedings concerning— (a) the estate of a deceased person, (b) property subject to a trust, or (c) the construction of a written statement, including a statute,
the court may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested in or affected by the proceedings, if the person, the class or some member of the class cannot readily be ascertained or cannot be found or if it otherwise appears to the court expedient to exercise this power for the purpose of saving expense.
(2) A judgment or order given or made when a person or persons appointed under paragraph (1) is or are before the court shall be binding on the person or class so represented.
(3) Where, in proceedings to which paragraph (1) applies, a compromise is proposed and some of the persons who are interested in or who may be affected by the compromise (including unborn or unascertained persons) are not parties to the proceedings but—
(a) there is some person in the same interest before the court who assents to the compromise or on whose behalf the court sanctions the compromise, or
(b) the absent persons are represented by a person appointed under paragraph (1) who so assents,
the court, if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order has been obtained by fraud or non-disclosure of material facts.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
344
Representation of estate where no personal representative
Rule 7. (1) Where in any proceedings it appears to the court that a deceased person who was interested in the matter in question in the proceedings has no personal representative, the court may, on the application of any party to the proceedings—
(a) proceed in the absence of a person representing the estate of the deceased person or (b) by order appoint a person to represent the estate for the purpose of the proceedings.
(2) Any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as if a personal representative of that person had been a party to the proceedings.
(3) Before making an order under this rule, the court may require notice of the application for the order to be given to such of the persons having an interest in the estate as it thinks fit.
Proceedings against estates
Rule 8. (1) Where any person against whom a claim would have laid has died but the cause of action survives, the claim may, if no grant of probate or administration has been made, be brought against the estate of the deceased.
(2) Without prejudice to the generality of paragraph (1), a claim brought against “the personal representatives of A.B. deceased” shall be treated, for the purposes of that paragraph, as having been brought against his estate.
(3) A claim purporting to have been commenced against a person shall be treated, if he was dead at its commencement, as having been commenced against his estate in accordance with paragraph (1), whether or not a grant of probate or administration was made before its commencement.
(4) In any such claim as is referred to in paragraph (1) or (3)— (a) the claimant shall, where the court fixed a date for the hearing when it issued the claim,
on or before that date, or, in any other case within the time allowed for service of the claim form, apply to the court for an order appointing a person to represent the deceased’s estate for the purpose of the proceedings or, if a grant of probate or administration has been made, for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person so appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;
(b) the court may, at any stage of the proceedings and on such terms as it thinks just and either of its own motion or on application, make any such order as is mentioned in sub- paragraph (a) and allow such amendments (if any) to be made and make such other order as the court thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.
(5) Before making an order under paragraph (4) the court may require notice to be given to any insurer of the deceased who has an interest in the proceedings and to such (if any) of the persons having an interest in the estate as it thinks fit.
(6) Where an order is made under paragraph (4), the person against whom the proceedings are to be carried on shall be served with a copy of the order, together with a copy of the application notice if any.
(7) Where no grant of probate or administration has been made, any judgment or order given or made in the proceedings shall bind the estate to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceedings.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
345
Partners may sue and be sued in firm name
Rule 9. (1) Subject to the provisions of any enactment, any two or more persons claiming to be entitled, or alleged to be liable, as partners in respect of a cause of action and carrying on business within England or Wales may sue or be sued in the name of the firm of which they were partners when the cause of action arose.
(2) Where partners sue or are sued in the name of the firm, the partners shall, on demand made in writing by any other party, forthwith deliver to the party making the demand and file a statement of the names and places of residence of all the persons who were partners in the firm when the cause of action arose.
(3) If the partners fail to comply with such a demand, the court, on application by any other party, may order the partners to furnish him with such a statement and to verify it on oath and may direct that in default—
(a) if the partners are claimants, the proceedings be stayed on such terms as the court thinks fit, or
(b) if the partners are defendants, they be debarred from defending the claim. (4) When the names and places of residence of the partners have been stated in compliance with
a demand or order under this rule, the proceedings shall continue in the name of the firm.
Defendant carrying on business in another name
Rule 10. (1) A person carrying on business in England or Wales in a name other than his own name may, whether or not he is within the jurisdiction, be sued—
(a) in his own name, followed by the words “trading as A.B.”, or (b) in his business name, followed by the words “(a trading name)”.
(2) Where a person is sued in his business name in accordance with paragraph (1)(b), the provisions of these rules relating to claims against firms shall, subject to the provisions of any enactment, apply as if he were a partner and the name in which he carried on business were the name of his firm.
Failure to proceed after death of party
Rule 12. (1) If, after the death of a claimant or defendant in any claim or matter, the cause of action survives but no order is made substituting any person in whom the cause of action vests or, as the case may be, the personal representatives of the deceased defendant, the defendant or, as the case may be, those representatives may apply to the court for an order that unless the claim is proceeded with within such time as may be specified in the order the claim shall be struck out as against the claimant or defendant who has died; but where it is the claimant who has died, the court shall not make an order unless satisfied that notice of the application has been given to the personal representatives (if any) of the deceased claimant and to any other interested person who the court considers should be notified.
(2) Where a counterclaim is made by a defendant to any claim this rule shall apply in relation to the counterclaim as if the counterclaim were a separate claim and as if the defendant making a counterclaim were a claimant and the person against whom it is made a defendant.
Claim to money in court where change in parties after judgment
Rule 13. (1) Where any change had taken place after judgment, by death, assignment or otherwise, in the parties to any claim and there is money standing in court to the credit of the claim, any person claiming to be entitled to the money may give to the court notice of his claim, accompanied by a witness statement or affidavit verifying the facts stated in the notice.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
346
(2) The district judge may, if satisfied as to the entitlement of the person giving notice, cause the money to be paid to him or may refer the claim to the judge and may require the claimant to give notice of the claim to any other person.
(3) It shall not be necessary for notice to be given under this rule where the person claiming to be entitled to the money in court has obtained permission under Order 26, rule 5, to issue a warrant of execution.
Bankruptcy of claimant
Rule 14. Rules 11 and 13 shall not apply to any case for which provision is made by section 49 of the Act.
CCR ORDER 6 PARTICULARS OF CLAIM
Recovery of land
Rule 3. (1) In a claim for recovery of land the particulars of claim shall— (a) identify the land sought to be recovered; (b) state whether the land consists of or includes a dwelling-house; (c) give details about the agreement or tenancy, if any, under which the land is held, stating
when it commenced and the amount of money payable by way of rent or licence fee; (d) in a case to which section 138 of the Act applies (forfeiture for non-payment of rent), state
the daily rate at which the rent in arrear is to be calculated; and (e) state the ground on which possession is claimed, whether statutory or otherwise.
(2) In proceedings for forfeiture where the claimant knows of any person entitled to claim relief against forfeiture as underlessee (including a mortgagee) under section 146 (4) of the Law of Property Act 1925(255) or under section 138 (9C) of the County Courts Act 1984(256), the particulars of claim shall give the name and address of that person and the claimant shall file a copy of the particulars of claim for service on him.
(3) Where possession of land which consists of or includes a dwelling-house is claimed because of non-payment of rent, the particulars of claim shall be in the prescribed form and shall also—
(a) state the amount due at the commencement of the proceedings; (b) give—
(i) (whether by means of a schedule or otherwise) particulars of all the payments which have been missed altogether; and
(ii) where a history of late or under-payments is relied upon, sufficient details to establish the claimant’s case;
(c) state any previous steps which the claimant has taken to recover arrears of rent and, in the case of court proceedings, state—
(i) the dates when proceedings were commenced and concluded; and (ii) the dates and terms of any orders made;
(255)1925 c. 20. (256)1984 c. 28; section 138 was amended by the Administration of Justice Act 1985 (c. 61), sections 55 and 67(2), schedule 8;
and by the Courts and Legal Services Act 1990 (c. 41), section 125(2), schedule 17, paragraph 17.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
347
(d) give such relevant information as is known by the claimant about the defendant’s circumstances and, in particular, whether (and, if so, what) payments on his behalf are made direct to the claimant by or under the Social Security Contributions and Benefits Act 1992(257);and
(e) if the claimant intends as part of his case to rely on his own financial or other circumstances, give details of all relevant facts or matters.
Mortgage claim
Rule 5. (1) Where a claimant claims as mortgagee payment of moneys secured by a mortgage of real or leasehold property or possession of such property, the particulars of claim shall contain the information required under this rule and, as the case may be, by rule 5A.
(2) Where there is more than one loan secured by the mortgage, the information required under the following paragraphs of this rule and under rule 5A shall be provided in respect of each loan agreement.
(3) The particulars shall state the date of the mortgage and identify the land sought to be recovered.
(4) Where possession of the property is claimed, the particulars of claim shall state whether or not the property consists of or includes a dwelling-house within the meaning of section 21 of the Act.
(5) The particulars shall state whether or not the loan which is secured by the mortgage is a regulated consumer credit agreement and, if so, specify the date on which any notice required by section 76 or section 87 of the Consumer Credit Act 1974(258) was given.
(6) The particulars shall show the state of account between the claimant and the defendant by including—
(a) the amount of the advance and of any periodic repayment and any payment of interest required to be made;
(b) the amount which would have to be paid (after taking into account any adjustment for early settlement) in order to redeem the mortgage at a stated date not more than 14 days after the commencement of proceedings specifying the amount of solicitor’s costs and administrative charges which would be payable;
(c) where the loan which is secured by the mortgage is a regulated consumer credit agreement, the total amount outstanding under the terms of the mortgage;
(d) the rate of interest payable— (i) at the commencement of the mortgage;
(ii) immediately before any arrears referred to in sub-paragraph (e) accrued; and (iii) where it differs from that provided under (ii) above, at the commencement of the
proceedings; and (e) the amount of any interest or instalments in arrear at the commencement of the
proceedings. (7) The particulars of claim shall state any previous steps which the claimant has taken to recover
the moneys secured by the mortgage or the mortgaged property and, in the case of court proceedings, state—
(a) the dates when proceedings were commenced and concluded, and (b) the dates and terms of any orders made.
(257)1992 c. 4. (258)1974 c. 39.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
348
(8) In this rule “mortgage” includes a legal or equitable mortgage and a legal or equitable charge, and references to the mortgaged property and mortgagee shall be construed accordingly.
Mortgage claim—dwelling-house
Rule 5A. (1) This rule applies where a claimant claims as mortgagee possession of land which consists of or includes a dwelling-house and in such a case the particulars of claim shall be in the prescribed form.
(2) Where the claimant’s claim is brought because of failure to make the periodic payments due, the particulars of claim shall—
(a) give details (whether by means of a schedule or otherwise) of all the payments which have been missed altogether;
(b) where a history of late or under-payments is relied upon, provide sufficient details to establish the claimant’s case;
(c) give details of any other payments required to be made as a term of the mortgage (such as for insurance premiums, legal costs, default interest, penalties, administrative or other charges) together with any other sums claimed stating the nature and amount of each such charge, whether any payment is in arrear and whether or not it is included in the amount of any periodic payment;
(d) give such relevant information as is known by the claimant about the defendant’s circumstances and, in particular, whether (and, if so, what) payments on his behalf are made direct to the claimant by or under the Social Security Contributions and Benefits Act 1992(259).
(3) In a claim to which this rule applies, the claimant shall state in his particulars of claim whether there is any person on whom notice of the claim is required to be served in accordance with section 8 (3) of the Matrimonial Homes Act 1983(260) and, if so, he shall state the name and address of that person and shall file a copy of the particulars of claim for service on that person.
(4) In this rule “mortgage” has the same meaning as in rule 5 (8).
Hire-purchase
Rule 6. (1) Where a claimant claims the delivery of goods let under a hire-purchase agreement to a person other than a body corporate, he shall in his particulars state in the order following—
(a) the date of the agreement and the parties to it with the number of the agreement or sufficient particulars to enable the debtor to identify the agreement;
(b) where the claimant was not one of the original parties to the agreement, the means by which the rights and duties of the creditor under the agreement passed to him;
(c) whether the agreement is a regulated agreement and, if it is not a regulated agreement, the reason why;
(d) the place where the agreement was signed by the debtor (if known); (e) the goods claimed; (f) the total price of the goods; (g) the paid-up sum; (h) the unpaid balance of the total price;
(259)1992 c. 4. (260)1983 c. 19.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
349
(i) whether a default notice or a notice under section 76 (1) or section 98 (1) of the Consumer Credit Act 1974 has been served on the debtor, and if it has, the date on which and the manner in which it was so served;
(j) the date when the right to demand delivery of the goods accrued; (k) the amount (if any) claimed as an alternative to the delivery of the goods; and (l) the amount (if any) claimed in addition to the delivery of the goods or any claim under
sub-paragraph (k), stating the cause of action in respect of which each such claim is made. (2) Where a claimant’s claim arises out of a hire-purchase agreement but is not for the delivery
of goods, he shall in his particulars state in the order following— (a) the date of the agreement and the parties to it with the number of the agreement or sufficient
particulars to enable the debtor to identify the agreement; (b) where the claimant was not one of the original parties to the agreement, the means by
which the rights and duties of the creditor under the agreement passed to him; (c) whether the agreement is a regulated agreement and, if it is not a regulated agreement,
the reason why; (d) the place where the agreement was signed by the debtor (if known); (e) the goods let under the agreement; (f) the amount of the total price; (g) the paid-up sum; (h) the amount (if any) claimed as being due and unpaid in respect of any instalment or
instalments of the total price; and (i) the nature and amount of any other claim and the circumstances in which it arises.
(3) Expressions used in this rule which are defined by the Consumer Credit Act 1974 have the same meanings in this rule as they have in that Act.
CCR ORDER 7 SERVICE OF DOCUMENTS
Recovery of land
Rule 15. (1) Where, in the case of a claim form for the recovery of land which is to be served by bailiff, the court is of opinion that it is impracticable to serve the claim form in accordance with any of the foregoing provisions of CPR Part 6, the claim form may be served in a manner authorised by this rule.
(2) The claim form may be served on any person on the premises who is the husband or wife of the defendant or on any person who has or appears to have the authority of the defendant—
(a) to reside or carry on business in the premises or to manage them on behalf of the defendant or to receive any rents or profits of the premises or to pay any outgoings in respect of the premises; or
(b) to safeguard or deal with the premises or with the furniture or other goods on the premises, and service on any such person shall be effected in the manner required for service of the notice of the day of hearing in accordance with Order 3, rule 6.
(3) Paragraph (2) shall apply to a man and woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
350
(4) Where the premises are vacant or are occupied only by virtue of the presence of furniture or other goods, the claim form may be served by affixing it to some conspicuous part of the premises.
(5) Unless the court otherwise orders, service of a claim form in accordance with this rule shall be good service on the defendant, but if a claim for the recovery of money is joined with the claim for recovery of land, the court shall order the claim form to be marked “not served” with respect to the money claim unless in special circumstances the court thinks it just to hear and determine both claims.
Mortgage possession claims
Rule 15A. (1) After the issue of the claim form in a mortgage possession claim the claimant shall not less than 14 days before the hearing send to the address of the property sought to be recovered a notice addressed to the occupiers which—
(a) states that possession proceedings have been commenced in respect of the property; (b) shows the name and address of the claimant, of the defendant and of the court which issued
the claim form; and (c) gives details of the case number and of the hearing date.
(2) The claimant shall either— (a) not less than 14 days before the hearing, file a certificate stating that a notice has been sent
in accordance with paragraph (1); or (b) exhibit the notice to any witness statement or affidavit used at the hearing.
(3) In this rule “mortgage possession claim” means a claim in which the claimant claims as mortgagee possession of land which consists of or includes a dwelling-house and “mortgage” has the same meaning as in Order 6, rule 5 (8).
CCR ORDER 13 APPLICATIONS AND ORDERS IN THE COURSE OF PROCEEDINGS
General provisions
Rule 1. (10) An appeal shall lie to a judge from any order made by a district judge on an application made in the course of proceedings and the appeal shall be disposed of in private unless the judge otherwise directs.
(11) An appeal under paragraph (10) shall be made on notice, which shall be filed and served on the opposite party within 5 days after the order appealed from or such further time as the judge may allow.
CCR ORDER 16 TRANSFER OF PROCEEDINGS
Interpleader proceedings under execution
Rule 7. (1) This rule applies to interpleader proceedings under an execution which are ordered to be transferred from the High Court.
(2) Notice of the hearings or pre-trial review of the proceedings shall be given by the court officer to the sheriff as well as to every other party to the proceedings.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
351
(3) The interpleader claimant shall, within 8 days of the receipt by him of the notice referred to in paragraph (2), file in triplicate particulars of any goods alleged to be his property and the grounds of his interpleader claim and the court officer shall send a copy to the execution creditor and to the sheriff, but the judge may hear the proceedings or, as the case may be, the district judge may proceed with the pre-trial review, if he thinks fit, notwithstanding that the particulars have not been filed.
(4) Subject to any directions in the order of the High Court, damages may be claimed against the execution creditor in the same manner as in interpleader proceedings commenced in a county court.
(5) On any day fixed for the pre-trial review of the proceedings or for the hearing of any application by the sheriff or other party for directions the court may order the sheriff—
(a) to postpone the sale of the goods seized; (b) to remain in possession of such goods until the hearing of the proceedings; or (c) to hand over possession of such goods to the district judge,
and, where a direction is given under sub-paragraph (c), the district judge shall be allowed reasonable charges for keeping possession of the goods, not exceeding those which might be allowed to the sheriff, and, if the district judge is directed to sell the goods, such charges for the sale as would be allowed under an execution issued by the county court.
(6) No order made in the proceedings shall prejudice or affect the rights of the sheriff to any proper charges and the judge may make such order with respect to them as may be just.
(7) The charges referred to in paragraphs (5) and (6) shall ultimately be borne in such manner as the judge shall direct.
(8) The order made at the hearing of the proceedings shall direct how any money in the hands of the sheriff is to be disposed of.
CCR ORDER 19 REFERENCE TO EUROPEAN COURT
Making and transmission of order
Rule 15. (1) In this rule “the European Court” means the Court of Justice of the European Communities and “order” means an order referring a question to the European Court for a preliminary ruling under Article 177 of the Treaty establishing the European Economic Community, Article 150 of the Treaty establishing the European Atomic Energy Community or Article 41 of the Treaty establishing the European Coal and Steel Community.
(2) An order may be made by the judge before or at the trial or hearing of any claim and either of his own initiative or on the application of any party.
(3) An order shall set out in a schedule the request for the preliminary ruling of the European Court, and the judge may give directions as to the manner and form in which the schedule is to be prepared.
(4) The proceedings in which an order is made shall, unless the judge otherwise orders, be stayed until the European Court has given a preliminary ruling on the question referred to it.
(5) When an order has been made, the court officer shall send a copy thereof to the Senior Master for transmission to the Registrar of the European Court; but, unless the judge otherwise orders, the copy shall not be sent to the Senior Master until the time for appealing to the Court of Appeal against the order has expired or, if an appeal is entered within that time, until the appeal has been determined or otherwise disposed of.
(6) Nothing in these rules shall authorise the district judge to make an order.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
352
CCR ORDER 22 JUDGMENTS AND ORDERS
Certificate of judgment
Rule 8. (1) Any person who wishes to have a certificate of any judgment or order given or made in a claim shall make a request in writing to the court stating—
(a) if he is a party to the claim whether the certificate— (i) is required for the purpose of taking proceedings on the judgment or order in another
court; (ii) is required for the purpose of enforcing the judgment or order in the High Court; or
(iii) is for the purpose of evidence only; (b) if he is not a party to the claim, the purpose for which the certificate is required, the capacity
in which he asks for it and any other facts showing that the certificate may properly be granted.
(1A) Where the certificate is required for the purpose of enforcing the judgment or order in the High Court, the applicant shall also either—
(a) state that it is intended to enforce the judgment or order by execution against goods; or (b) confirm that an application has been made for an order under section 42 of the Act (transfer
to High Court by order of a county court) and attach a copy of the application to the request for a certificate.
(2) Where the request is made by a person who is not a party to the claim, the request shall be referred to the district judge, who may, if he thinks fit, refer it to the judge.
(3) Without prejudice to paragraph (2), for the purposes of section 12 (2) of the Act a certificate under this rule may be signed by the court manager or any other officer of the court acting on his behalf.
Variation of payment
Rule 10. (1) Where a judgment or order has been given or made for the payment of money, the person entitled to the benefit of the judgment or order or, as the case may be, the person liable to make the payment (in this rule referred to as “the judgment creditor” and “the debtor” respectively) may apply in accordance with the provisions of this rule for a variation in the date or rate of payment.
(2) The judgment creditor may apply in writing, without notice being served on any other party, for an order that the money, if payable in one sum, be paid at a later date than that by which it is due or by instalments or, if the money is already payable by instalments, that it be paid by the same or smaller instalments, and the court officer may make an order accordingly unless no payment has been made under the judgment or order for 6 years before the date of the application in which case he shall refer the application to the district judge.
(3) The judgment creditor may apply to the district judge on notice for an order that the money, if payable in one sum, be paid at an earlier date than that by which it is due or, if the money is payable by instalments, that it be paid in one sum or by larger instalments, and any such application shall be made in writing stating the proposed terms and the grounds on which it is made.
(4) Where an application is made under paragraph (3)— (a) the proceedings shall be automatically transferred to the debtor’s home court if the
judgment or order was not given or made in that court; and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
353
(b) the court officer shall fix a day for the hearing of the application before the district judge and give to the judgment creditor and the debtor not less than 8 days' notice of the day so fixed,
and at the hearing the district judge may make such order as seems just. (5) The debtor may apply for an order that the money, if payable in one sum, be paid at a later
date than that by which it is due or by instalments or, if the money is already payable by instalments, that it be paid by smaller instalments, and any such application shall be in the appropriate form stating the proposed terms, the grounds on which it is made and including a signed statement of the debtor’s means.
(6) Where an application is made under paragraph (5), the court officer shall— (a) send the judgment creditor a copy of the debtor’s application (and statement of means); and (b) require the judgment creditor to notify the court in writing, within 14 days of service of
notification upon him, giving his reasons for any objection he may have to the granting of the application.
(7) If the judgment creditor does not notify the court of any objection within the time stated, the court officer shall make an order in the terms applied for.
(8) Upon receipt of a notice from the judgment creditor under paragraph (6), the court officer may determine the date and rate of payment and make an order accordingly.
(9) Any party affected by an order made under paragraph (8) may, within 14 days of service of the order on him and giving his reasons, apply on notice for the order to be re-considered and, where such an application is made—
(a) the proceedings shall be automatically transferred to the debtor’s home court if the judgment or order was not given or made in that court; and
(b) the court officer shall fix a day for the hearing of the application before the district judge and give to the judgment creditor and the debtor not less than 8 days' notice of the day so fixed.
(10) On hearing an application under paragraph (9), the district judge may confirm the order or set it aside and make such new order as he thinks fit and the order so made shall be entered in the records of the court.
(11) Any order made under any of the foregoing paragraphs may be varied from time to time by a subsequent order made under any of those paragraphs.
Set-off of cross-judgments
Rule 11. (1) An application under section 72 of the Act for permission to set off any sums, including costs, payable under several judgments or orders each of which was obtained in a county court shall be made in accordance with this rule.
(2) Where the judgments or orders have been obtained in the same county court, the application may be made to that court on the day when the last judgment or order is obtained, if both parties are present, and in any other case shall be made on notice.
(3) Where the judgments or orders have been obtained in different county courts, the application may be made to either of them on notice, and notice shall be given to the other court.
(4) The district judge of the court to which the application is made and the district judge of any other court to which notice is given under paragraph (3) shall forthwith stay execution on any judgment or order in his court to which the application relates and any money paid into court under the judgment or order shall be retained until the application has been disposed of.
(5) The application may be heard and determined by the court and any order giving permission shall direct how any money paid into court is to be dealt with.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
354
(6) Where the judgments or orders have been obtained in different courts, the court in which an order giving permission is made shall send a copy of the order to the other court, which shall deal with any money paid into that court in accordance with the order.
(7) The court officer or, as the case may be, each of the court officers affected shall enter satisfaction in the records of his court for any sums ordered to be set off, and execution or other process for the enforcement of any judgment or order not wholly satisfied shall issue only for the balance remaining payable.
(8) Where an order is made by the High Court giving permission to set off sums payable under several judgments and orders obtained respectively in the High Court and a county court, the court officer of the county court shall, on receipt of a copy of the order, proceed in accordance with paragraph (7).
Order of appellate court
Rule 13. Where the Court of Appeal or High Court has heard and determined an appeal from a county court, the party entitled to the benefit of the order of the Court of Appeal or High Court shall deposit the order or an office copy thereof in the office of the county court.
CCR ORDER 24 SUMMARY PROCEEDINGS FOR THE RECOVERY OF LAND
Part I—Land
Proceedings to be by claim form
Rule 1. (1) Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by claim form in accordance with the provisions of this Order.
(2) Where proceedings of the type referred to in paragraph (1) are brought, the court will fix a day for the hearing when it issues the claim form.
Witness statement or affidavit in support
Rule 2. (1) The applicant shall file in support of the claim form a witness statement or affidavit stating—
(a) his interest in the land; (b) the circumstances in which the land has been occupied without licence or consent and in
which his claim to possession arises; and (c) that he does not know the name of any person occupying the land who is not named in
the claim form. (2) Where the applicant considers that service in accordance with rule 3 (2)(b) may be necessary,
he shall provide, together with the claim form, sufficient stakes and sealable transparent envelopes for such service.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
355
Service of claim form
Rule 3. (1) Where any person in occupation of the land is named in the claim form, the application shall be served on him—
(a) by delivering to him personally a copy of the claim form, together with the notice of the return day and a copy of the witness statement or affidavit in support;
(b) by an officer of the court leaving the documents mentioned in sub-paragraph (a), or sending them to him, at the premises;
(c) in accordance with CPR rule 6.4(2); or (d) in such other manner as the court may direct.
(2) Where any person not named as a respondent is in occupation of the land, the claim form shall be served (whether or not it is also required to be served in accordance with paragraph (1)), unless the court otherwise directs, by—
(a) affixing a copy of each of the documents mentioned in paragraph (1)(a) to the main door or other conspicuous part of the premises and, if practicable, inserting through the letterbox at the premises a copy of those documents enclosed in a sealed transparent envelope addressed to “the occupiers”, or
(b) placing stakes in the ground at conspicuous parts of the occupied land, to each of which shall be affixed a sealed transparent envelope addressed to “the occupiers” and containing a copy of each of the documents mentioned in paragraph (1)(a).
Application by occupier to be made a party
Rule 4. A person not named as a respondent who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as respondent, and the notice of the return day shall contain a notice to that effect.
Hearing of claim
Rule 5. (1) Except in case of urgency and by permission of the court, the day fixed for the hearing of the claim—
(a) in the case of residential premises, shall not be less than five days after the day of service, and
(b) in the case of other land, shall not be less than two days after the day of service. (3) An order for possession in proceedings under this Order shall be to the effect that the applicant
do recover possession of the land mentioned in the claim form. (4) Nothing in this Order shall prevent the court from ordering possession to be given on a
specified date.
Warrant of possession
Rule 6. (1) Subject to paragraphs (2) and (3), a warrant of possession to enforce an order for possession under this Order may be issued at any time after the making of the order and subject to the provisions of Order 26, rule 17, a warrant of restitution may be issued in aid of the warrant of possession.
(2) No warrant of possession shall be issued after the expiry of 3 months from the date of the order without the permission of the court, and an application for such permission may be made without notice being served on any other party unless the court otherwise directs.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
356
(3) Nothing in this rule shall authorise the issue of a warrant of possession before the date on which possession is ordered to be given.
Setting aside order
Rule 7. The judge or district judge may, on such terms as he thinks just, set aside or vary any order made in proceedings under this Order.
Part II—Interim Possession Orders
Definitions and interpretation
Rule 8. (1) In this Part of this Order— (a) “applicant” means a person who applies for an interim possession order; (b) “premises” means premises within the meaning of section 12 of the Criminal Law Act
1977(261); and (c) “respondent” means a person against whom an application for an interim possession order
is made, whether or not that person is named in the application or order. (2) Where a rule in this Part of this Order requires an act to be done within a specified number
of hours, CPR rule 2.8(4) shall not apply to the calculation of the period of time within which the act must be done.
Conditions for interim possession order application
Rule 9. In proceedings for possession under Part I of this Order, an application may be made for an interim possession order where the following conditions are satisfied—
(a) the only claim made in the proceedings is for the recovery of premises; (b) the claim is made by a person who—
(i) has an immediate right to possession of the premises; and (ii) has had such a right throughout the period of unlawful occupation complained of;
(c) the claim is made against a person (not being a tenant holding over after the termination of the tenancy) who entered the premises without the applicant’s consent and has not subsequently been granted such consent, but no application for an interim possession order may be made against a person who entered the premises with the consent of the person who, at the time of entry, had an immediate right to possession of the premises; and
(d) the claim is made within 28 days of the date on which the applicant first knew, or ought reasonably to have known, that the respondent, or any of the respondents, was in occupation.
Issue of the applications
Rule 10. (1) In proceedings in which an application for an interim possession order is made, unless otherwise provided, rules 2 to 7 shall not apply.
(2) The applicant shall file— (a) a claim form; (b) a witness statement or affidavit in support; and
(261)1977 c. 45.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
357
(c) an application notice, each of which shall be in the appropriate prescribed form, together with sufficient copies for service on the respondent.
(3) The witness statement or affidavit shall be sworn by the applicant personally or, where the application for an interim possession order is made by a body corporate, shall be sworn by an officer of the body corporate duly authorised to swear the witness statement or affidavit on its behalf.
(4) On the filing of the documents mentioned in paragraph (2), the court shall— (a) issue the claim form and the application for an interim possession order; (b) fix an appointment for the application to be considered; and (c) insert the time of that appointment in the application notice filed under paragraph (2) and
in the copy to be served on the respondent. (5) The time fixed for consideration of the application for an interim possession order shall be
as soon as possible after the documents have been filed, but not less than 3 days after the date on which the application for an interim possession order is issued.
Service of the notice of application
Rule 11. (1) Within 24 hours of the issue of the application for an interim possession order, the applicant shall serve the following documents on the respondent, namely—
(a) the application notice; and (b) the prescribed form of respondent’s witness statement or affidavit, which shall be attached
to the application notice. (2) The applicant shall serve the documents mentioned in paragraph (1) by fixing a copy of them
to the main door or other conspicuous part of the premises and, if practicable, inserting through the letter-box at the premises a copy of the documents in a sealed, transparent envelope addressed to “the occupiers”.
(3) Additionally (but not alternatively), the applicant may place stakes in the ground at conspicuous parts of the premises to each of which shall be fixed a sealed transparent envelope addressed to “the occupiers” and containing a copy of the documents.
(4) At or before the time fixed for consideration of the application for an interim possession order, the applicant shall file a witness statement or affidavit of service in the prescribed form in relation to the documents mentioned in paragraph (1).
(5) At any time before the time fixed for consideration of the application for an interim possession order the respondent may file a witness statement or affidavit in the prescribed form in response to the application.
Consideration of the application
Rule 12. (1) If the respondent has filed a witness statement or affidavit in accordance with rule 11 (5), he may attend before the court when the application for an interim possession order is considered to answer such questions on his witness statement or affidavit or on the applicant’s witness statement or affidavit as the court may put to him.
(2) The parties' witness statements or affidavits shall be read in evidence and no oral evidence shall be adduced except in response to questions put by the court.
(3) If the court so directs, an application for an interim possession order may be dealt with in private and in the absence of one or both of the parties.
(4) In deciding whether to grant an interim possession order the court shall have regard to whether the applicant has given or is prepared to give undertakings in support of his application—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
358
(a) to reinstate the respondent if, after an interim possession order has been made, the court holds that the applicant was not entitled to the order;
(b) to pay damages if, after an interim possession order has been made, the court holds that the applicant was not entitled to the order;
(c) not to damage the premises pending final determination of the possession proceedings; (d) not to grant a right of occupation to any other person pending final determination of the
possession proceedings; and (e) not to damage or dispose of any of the respondent’s possessions pending final
determination of the possession proceedings. (5) The court shall make an interim possession order if—
(a) the applicant has filed a witness statement or affidavit of service of the notice of application; and
(b) the court is satisfied that— (i) the conditions specified in rule 9 are met; and
(ii) any undertakings given by the applicant as a condition of making the order are adequate.
(6) An interim possession order shall be in a prescribed form and shall be to the effect that the respondent vacate the premises specified in the claim form within 24 hours of service of the order.
(7) On the making of an interim possession order, the court shall fix a return date for the hearing of the claim which shall be not less than 7 days after the date on which the interim possession order is made.
(8) Where an interim possession order is made, the court officer shall submit a draft of the order as soon as possible to the judge or district judge by whom it was made for approval, and when the draft order has been approved the court shall insert in the order the time limit for service under rule 13 (1).
(9) Where the court does not make an interim possession order— (a) the court officer shall fix a return date for the hearing of the claim; (b) the court may give directions for the further conduct of the matter; and (c) subject to such directions, the matter shall proceed in accordance with Part I of this Order.
(10) When it has considered the application for an interim possession order, the court shall give a copy of the respondent’s witness statement or affidavit (if any) to the applicant, if the applicant requests such a copy.
(11) The court shall serve any directions made under paragraph (9) on the parties and at the same time shall serve on the respondent a copy of the claim form and witness statement or affidavit in support.
Service and enforcement of the interim possession order
Rule 13. (1) An interim possession order must be served within 48 hours of the judge or district judge’s approving the draft order under rule 12 (8).
(2) The applicant shall serve copies of the claim form, the applicant’s witness statement or affidavit and the interim possession order in accordance with rule 11 (2) and (3) or in such other manner as the court may direct.
(3) Order 26, rule 17 (enforcement of warrant of possession) shall not apply to the enforcement of an interim possession order.
(4) If an interim possession order is not served within the time limit specified by this rule or by any order extending or abridging time, the applicant may apply to the court for directions for the
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
359
application for possession to continue under Part I of this Order as if it had not included a claim for an interim possession order.
Matters arising after making of an interim possession order
Rule 14. (1) Before the return date the applicant shall file a witness statement or affidavit of service in the prescribed form in relation to the documents specified in rule 13 (2), and no final order for possession may be made unless such a witness statement or affidavit has been filed.
(2) The interim possession order shall expire on the return date. (3) On the return date the court may make such order as appears appropriate and may in particular
— (a) make a final order for possession; (b) dismiss the claim for possession; (c) give directions for the application for possession to continue under Part I of this Order as
if it had not included a claim for an interim possession order. (4) An order may be made on the return date in the absence of one or both of the parties. (5) If the court holds that the applicant was not entitled to an interim possession order, the
respondent may apply for relief pursuant to any undertakings given by the applicant. (6) Unless it otherwise directs, the court shall serve a copy of any order or directions made under
this rule on the parties. (7) Unless the court otherwise directs, service on the respondent under paragraph (6) shall be in
accordance with rule 11 (2) and (3). (8) Rule 6 (warrant of possession) shall apply to the enforcement of a final order for possession
made under this rule.
Application to set aside an interim possession order
Rule 15. (1) If the respondent has vacated the premises, he may apply on grounds of urgency for the interim possession order to be set aside before the return date.
(2) An application under this rule shall be supported by a witness statement or affidavit. (3) On receipt of an application to set aside, the judge or district judge shall give directions as to—
(a) the date for the hearing; and (b) the period of notice, if any, to be given to the applicant and the mode of service of any
such notice. (4) No application to set aside an interim possession order may be made under CPR Part 39.3. (5) Where no notice is required under paragraph (3)(b), the only matter to be dealt with at
the hearing shall be whether the interim possession order should be set aside (and the consequent application of any undertaking given under rule 12 (4)(a)) and all other matters shall be dealt with on the return date.
(6) The court shall serve on the applicant a copy of any order made under paragraph (5) and, where no notice is required under paragraph (3)(b), the court shall at the same time serve a copy of the respondent’s application to set aside and the witness statement or affidavit in support.
(7) Where notice is required under paragraph (3)(b), the court may treat the application as an application to bring forward the return date, in which case rule 14 (2) to (8) shall apply accordingly.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
360
CCR ORDER 25 ENFORCEMENT OF JUDGMENTS AND ORDERS: GENERAL
Judgment creditor and debtor
Rule 1. In this Order and Orders 26 to 29 “judgment creditor” means the person who has obtained or is entitled to enforce a judgment or order and “debtor” means the person against whom it was given or made.
Transfer of proceedings for enforcement
Rule 2. (1) Where, with a view to enforcing a judgment or order obtained by him in a county court, a judgment creditor desires to apply for—
(a) the oral examination of the debtor; (b) a charging order under section 1 of the Charging Orders Act 1979(262); (c) an attachment of earnings order; or (d) the issue of a judgment summons,
and the application is required by any provision of these rules to be made to another county court, the judgment creditor shall make a request in writing to the court officer of the court in which the judgment or order was obtained for the transfer of the proceedings to the other court.
(2) On receipt of a request under paragraph (1), the court officer shall make an order transferring the proceedings to the other court and shall—
(a) make an entry of the transfer in the records in his court; and (b) send to the court to which the proceedings have been transferred a certificate of the
judgment or order stating the purpose for which it has been issued, and, if requested by that officer, all the documents in his custody relating to the proceedings.
(3) When the proceedings have been transferred to the other court— (a) that court shall give notice of the transfer to the judgment creditor and the debtor; (b) any payment which, by or under these rules or the Court Funds Rules 1987(263), is
authorised or required to be made into court shall be made into that court; and (c) subject to sub-paragraph (d), any subsequent steps in the proceedings shall be taken in
that court, but (d) any application or appeal under Order 37 shall be made to the court in which the judgment
or order was obtained. (4) If the judgment creditor desires to make a subsequent application for any of the remedies
mentioned in paragraph (1)(a) to (d) and the application is required to be made to another court, he may make a request under paragraph (1) to the court to which the proceedings have been transferred and paragraphs (2) and (3) shall apply with the necessary modifications.
Oral examination of debtor
Rule 3. (1) Where a person has obtained a judgment or order in a county court for the payment of money or where an order has been made under rule 12 of this Order, the appropriate court may, on an application made by the judgment creditor without notice being served on any other party, order
(262)1979 c. 53; section 1 was amended by the Administration of Justice Act 1982 (c. 53) sections 34(3), 37, schedule 3, Part II, paragraphs 2, 3, 6; and by the County Courts Act 1984 (c. 28), section 148(1), schedule 2, Part V.
(263)S.I. 1987/821, as amended by S.I. 1988/817, 1990/518, 1991/227 and 1997/177.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
361
the debtor or, if the debtor is a body corporate, an officer thereof to attend before the court officer and be orally examined as to the debtor’s means of satisfying the judgment or order, and may also order the person to be examined to produce at the time and place appointed for the examination any books or documents in his possession relevant to the debtor’s means.
(1A) An application under paragraph (1) shall certify the amount of money remaining due under the judgment, order or award (as that word is defined by rule 12 (1) of this Order).
(2) The appropriate court for the purposes of paragraph (1) shall be the court for the district in which the person to be examined (or, if there are more such persons than one, any of them) resides or carries on business.
(3) The order shall be served in the manner required for service of the notice of the day of hearing in accordance with Order 3, rule 6 except that Order 3, rule 6(11) will not apply.
(4) If the person to be examined fails to attend at the time and place fixed for the examination, the court may adjourn the examination and make a further order for his attendance and any such order shall direct that any payments made thereafter shall be paid into court and not direct to the judgment creditor.
(5) Nothing in Order 29, rule 1 (2) to (7) shall apply to an order made under paragraph (4), but Order 27, rules 7B and 8, shall apply, with the necessary modifications, as they apply to orders made under section 23 (1) of the Attachment of Earnings Act 1971(264) except that for a period of 5 days specified in paragraph (1) of Order 27, rule 8 there shall be substituted a period of 10 days.
(5A) Where an examination has been adjourned, the judgment creditor, if requested to do so by the person to be examined not less than 7 days before the day fixed for the adjourned examination shall pay to him a sum reasonably sufficient to cover his expenses in travelling to and from the court unless such a sum was paid to him at the time of service of the order for oral examination.
(5B) The judgment creditor shall, not more than 4 days before the day fixed for the adjourned examination, file a certificate stating either that no request has been made under paragraph (5A) or that a sum has been paid in accordance with such a request.
(5C) Where the person to be examined has made a request under paragraph (5A), he shall not be committed to prison under Order 29, rule 1 (1) for having failed to attend at the time and place fixed for the adjourned examination unless the judgment creditor has paid to him a sum reasonably sufficient to cover the travelling expenses before the day fixed for the adjourned examination.
(6) CPR rule 34.8 (evidence by deposition) shall apply with the necessary modifications, to an examination under this rule as it applies to an examination under that Part save that CPR rule 34.8(6) (b) shall not apply.
(7) Nothing in this rule shall be construed as preventing the court, before deciding whether to make an order under paragraph (1), from giving the person to be examined an opportunity of making a statement in writing or a witness statement or affidavit as to the debtor’s means.
Examination of debtor under judgment not for money
Rule 4. Where any difficulty arises in or in connection with the enforcement of any judgment or order for some relief other than the payment of money, the court may make an order under rule 3 for the attendance of the debtor and for his examination on such questions as may be specified in the order, and that rule shall apply accordingly with the necessary modifications.
Provision of information
Rule 5. (1) The requests and applications mentioned in paragraph (2) are— (a) a request for a warrant of execution, delivery or possession;
(264)1971 c. 32; section 23(1) was amended by the Administration of Justice Act 1982 (c. 53), section 53(2).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
362
(b) a request for a judgment summons or warrant of committal; (c) an application for a garnishee order under Order 30, rule 1; and (d) an application for a charging order.
(2) Where the judgment creditor has filed any request or application referred to in paragraph (1) or is seeking to enforce a judgment or order by making an application under rule 3 or under Order 27 or 32, he shall forthwith notify the court of any payment received from the debtor in respect of the judgment to be enforced after the date of the application and before—
(a) the final return to the warrant of execution, delivery or possession; or (b) in any other case, the date fixed for the hearing of the application.
(3) Without prejudice to rule 8 (9), where the judgment creditor applies to re-issue enforcement proceedings, he shall file a request in that behalf certifying the amount of money remaining due under the judgment or order and that the whole or part of any instalment due remains unpaid and stating why re-issue is necessary.
Interest on judgment debts
Rule 5A. Where the judgment creditor claims interest pursuant to the County Courts (Interest on Judgment Debts) Order 1991(265) and takes proceedings to enforce payment under the relevant judgment (within the meaning of article 4 (1) of that Order), any request or application for enforcement made in those proceedings shall be accompanied by two copies of a certificate giving details of—
(a) the amount of interest claimed and the sum on which it is claimed; (b) the dates from and to which interest has accrued; and (c) the rate of interest which has been applied and, where more than one rate of interest has
been applied, the relevant dates and rates.
Description of parties
Rule 6. Where the name or address of the judgment creditor or the debtor as given in the request for the issue of a warrant of execution or delivery, judgment summons or warrant of committal differs from his name or address in the judgment or order sought to be enforced and the judgment creditor satisfies the court officer that the name or address as given in the request is applicable to the person concerned, the judgment creditor or the debtor, as the case may be, shall be described in the warrant or judgment summons as “C.D. of [name and address as given in the request] suing [or sued] as A.D. of [name and address in the judgment or order]”.
Recording and giving information as to warrants and orders
Rule 7. (1) Subject to paragraph (1A), every district judge by whom a warrant or order is issued or received for execution shall from time to time state in the records of his court what has been done in the execution of the warrant or order.
(1A) Where a warrant of execution issued by a court (“the home court”) is sent to another court for execution (“the foreign court”), paragraph (1) shall not apply to the district judge of the home court, but when such a warrant is returned to the home court under paragraph (7), the court officer of the home court shall state in the records of his court what has been done in the execution of the warrant or order.
(2) If the warrant or order has not been executed within one month from the date of its issue or receipt by him, the court officer of the court responsible for its execution shall, at the end of that
(265)S.I. 1991/1184 as amended by S.I. 1996/2516.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
363
month and every subsequent month during which the warrant remains outstanding, send notice of the reason for non-execution to the judgment creditor and, if the warrant or order was received from another court, to that court.
(3) The district judge responsible for executing a warrant or order shall give such information respecting it as may reasonably be required by the judgment creditor and, if the warrant or order was received by him from another court, by the district judge of that court.
(4) Where money is received in pursuance of a warrant of execution or committal sent by one court to another court, the foreign court shall, subject to paragraph (5) and to section 346 of Insolvency Act 1986(266) and section 326 of the Companies Act 1948(267), send the money to the judgment creditor in the manner prescribed by the Court Funds Rules 1987(268) and, where the money is received in pursuance of a warrant of committal, make a return to the home court.
(5) Where interpleader proceedings are pending, the court shall not proceed in accordance with paragraph (4) until the interpleader proceedings are determined and the district judge shall then make a return showing how the money is to be disposed of and, if any money is payable to the judgment creditor, the court shall proceed in accordance with paragraph (4).
(6) Where a warrant of committal has been received from another court, the foreign court shall, on the execution of the warrant, send notice thereof to the home court.
(7) Where a warrant of execution has been received from another court, either— (a) on the execution of the warrant; or (b) if the warrant is not executed—
(i) on the making of a final return to the warrant; or (ii) on suspension of the warrant under rule 8 (suspension of judgment or execution) or
Order 26, rule 10 (withdrawal and suspension of warrant at creditor’s request), the foreign court shall return the warrant to the home court.
Suspension of judgment or execution
Rule 8. (1) The power of the court to suspend or stay a judgment or order or to stay execution of any warrant may be exercised by the district judge or, in the case of the power to stay execution of a warrant of execution and in accordance with the provisions of this rule, by the court officer.
(2) An application by the debtor to stay execution of a warrant of execution shall be in the appropriate form stating the proposed terms, the grounds on which it is made and including a signed statement of the debtor’s means.
(3) Where the debtor makes an application under paragraph (2), the court shall— (a) send the judgment creditor a copy of the debtor’s application (and statement of means); and (b) require the creditor to notify the court in writing, within 14 days of service of notification
upon him, giving his reasons for any objection he may have to the granting of the application.
(4) If the judgment creditor does not notify the court of any objection within the time stated, the court officer may make an order suspending the warrant on terms of payment.
(5) Upon receipt of a notice by the judgment creditor under paragraph (3)(b), the court officer may, if the judgment creditor objects only to the terms offered, determine the date and rate of payment and make an order suspending the warrant on terms of payment.
(266)1986 c. 45. (267)1948 c. 38. (268)S.I. 19887/821, as amended by S.I. 1988/817, 1990/518, 1991/227 and 1997/177.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
364
(6) Any party affected by an order made under paragraph (5) may, within 14 days of service of the order on him and giving his reasons, apply on notice for the order to be reconsidered and the court shall fix a day for the hearing of the application before the district judge and give to the judgment creditor and the debtor not less than 8 days' notice of the day so fixed.
(7) On hearing an application under paragraph (6), the district judge may confirm the order or set it aside and make such new order as he thinks fit and the order so made shall be entered in the records of the court.
(8) Where the judgment creditor states in his notice under paragraph (3)(b) that he wishes the bailiff to proceed to execute the warrant, the court shall fix a day for a hearing before the district judge of the debtor’s application and give to the judgment creditor and to the debtor not less than 2 days' notice of the day so fixed.
(9) Subject to any directions given by the district judge, where a warrant of execution has been suspended, it may be re-issued on the judgment creditor’s filing a request pursuant to rule 5 (3) showing that any condition subject to which the warrant was suspended has not been complied with.
(10) Where an order is made by the district judge suspending a warrant of execution, the debtor may be ordered to pay the costs of the warrant and any fees or expenses incurred before its suspension and the order may authorise the sale of a sufficient portion of any goods seized to cover such costs, fees and expenses and the expenses of sale.
Enforcement of judgment or order against firm
Rule 9. (1) Subject to paragraph (2), a judgment or order against a firm may be enforced against —
(a) any property of the firm; (b) any person who admitted in the proceedings that he was a partner or was adjudged to be
a partner; (c) any person who was served as a partner with the claim form if—
(i) judgment was entered under CPR Part 12, in default of defence or under CPR Part 14 on admission; or
(iii) the person so served did not appear at the trial or hearing of the proceedings. (2) A judgment or order may not be enforced under paragraph (1) against a member of the firm
who was out of England and Wales when the claim form was issued unless he— (a) was served within England and Wales with the claim formas a partner; or (b) was, with the permission of the court under RSC Order 11, rule 1 served out of England
and Wales with the claim form as a partner, and, except as provided by paragraph (1)(a) and by the foregoing provisions of this paragraph, a judgment or order obtained against a firm shall not render liable, release or otherwise affect a member of the firm who was out of England and Wales when the claim form was issued.
(3) A judgment creditor who claims to be entitled to enforce a judgment or order against any other person as a partner may apply to the court for permission to do so by filing an application notice in accordance with CPR Part 23.
(4) An application notice under paragraph (3) shall be served on the alleged partner, not less than three days before the hearing of the application, in the manner required for service of the notice of the day of hearing in accordance with Order 3, rule 6 and on the hearing of the application, if the alleged partner does not dispute his liability, the court may, subject to paragraph (2), give permission to enforce the judgment or order against him and, if he disputes liability, the court may order that the question of his liability be tried and determined in such a manner as the court thinks fit.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
365
(5) The foregoing provisions of this rule shall not apply where it is desired to enforce in a county court a judgment or order of the High Court, or a judgment, order, decree or award of any court or arbitrator which is or has become enforceable as if it were a judgment or order of the High Court, and in any such case the provisions of the RSC relating to the enforcement of a judgment or order against a firm shall apply.
Enforcing judgment between a firm and its members
Rule 10. (1) Execution to enforce a judgment or order given or made in— (a) proceedings by or against a firm, in the name of the firm against or by a member of the
firm; or (b) proceedings by a firm in the name of the firm against a firm in the name of the firm where
those firms have one or more members in common, shall not issue without the permission of the court.
(2) On an application for permission the court may give such directions, including directions as to the taking of accounts and the making of inquiries, as may be just.
Enforcement of High Court judgment
Rule 11. (1) A judgment creditor who desires to enforce a judgment or order of the High Court, or a judgment, order, decree or award of any court or arbitrator which is or has become enforceable as if it were a judgment or order of the High Court, shall file in the appropriate court (with such documents as are required to be filed for the purpose of enforcing a judgment or order of a county court)—
(a) an office copy of the judgment or order or, in the case of a judgment, order, decree or award of a court other than the High Court or an arbitrator, such evidence of the judgment, order, decree or award and of its enforceability as a judgment of the High Court as the district judge may require;
(b) a certificate verifying the amount due under the judgment, order, decree or award; (c) where a writ of execution has been issued to enforce it, a copy of the sheriff’s return to
the writ; and (d) a copy of the order to transfer the proceedings to the county court.
(2) In this rule the “appropriate court” means the county court in which the relevant enforcement proceedings might, by virtue of these rules, be brought if the judgment or order had been obtained in proceedings commenced in a county court.
Provided that if under these rules the court in which the relevant enforcement proceedings might be brought is identified by reference to the court in which the judgment or order has been obtained the appropriate court shall be the court for the district in which the debtor resides or carries on business.
(3) The provisions of this rule are without prejudice to Order 26, rule 2.
Enforcement of award of tribunal
Rule 12. (1) This rule applies where any enactment (other than these rules) provides that if a county court so orders, a sum of money is recoverable as if payable under an order of a county court, and in this rule an application for such an order is referred to as an application to enforce an award and “award” means the award, order, agreement or decision which it is sought to enforce.
(2) Unless these rules otherwise provide, an application to enforce an award shall be made without notice by—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
366
(a) certifying the amount remaining due to the applicant; and (b) producing either the original or a copy of the award and by filing a copy.
(3) Unless otherwise provided, the application shall be made to the court for the district in which the person against whom the award was made resides or carries on business or, where that person does not reside or carry on business within England and Wales, to the court for the district in which the applicant resides or carries on business.
(4) The order may be made by the court officer.
Transfer to High Court for enforcement
Rule 13. (1) Where the judgment creditor makes a request for a certificate of judgment under Order 22, rule 8(1) for the purpose of enforcing the judgment or order in the High Court by execution against goods, the grant of a certificate by the court shall take effect as an order to transfer the proceedings to the High Court and the transfer shall have effect on the grant of that certificate.
(2) On the transfer of proceedings in accordance with paragraph (1), the court shall give notice to the debtor that the proceedings have been transferred and shall make an entry of that fact in the records of his court.
(3) In a case where a request for a certificate of judgment is made under Order 22, rule 8(1) for the purpose of enforcing a judgment or order in the High Court and—
(a) an application for a variation in the date or rate of payment of money due under a judgment or order;
(b) an application under either CPR rule 39.3(3) or CPR rule 13.4; (c) a request for an administration order; or (d) an application for a stay of execution under section 88 of the Act,
is pending, the request for the certificate shall not be dealt with until those proceedings are determined.
CCR ORDER 26 WARRANTS OF EXECUTION, DELIVERY AND POSSESSION
Application for warrant of execution
Rule 1. (1) A judgment creditor desiring a warrant of execution to be issued shall file a request in that behalf certifying—
(a) the amount remaining due under the judgment or order; and (b) where the order made is for payment of a sum of money by instalments—
(i) that the whole or part of any instalment due remains unpaid; and (ii) the amount for which the warrant is to be issued.
(1A) The court officer shall discharge the functions— (a) under section 85 (2) of the Act of issuing a warrant of execution; (b) under section 85 (3) of the Act of entering in the record mentioned in that subsection and
on the warrant the precise time of the making of the application to issue the warrant; and (c) under section 103 (1) of the Act of sending the warrant of execution to another county
court.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
367
(2) Where the court has made an order for payment of a sum of money by instalments and default has been made in payment of such an instalment, a warrant of execution may be issued for the whole of the said sum of money and costs then remaining unpaid or, subject to paragraph (3), for such part as the judgment creditor may request, not being in the latter case less than £50 or the amount of one monthly instalment or, as the case may be, four weekly instalments, whichever is the greater.
(3) In any case to which paragraph (2) applies no warrant shall be issued unless at the time when it is issued—
(a) the whole or part of an instalment which has already become due remains unpaid; and (b) any warrant previously issued for part of the said sum of money and costs has expired or
has been satisfied or abandoned. (4) Where a warrant is issued for the whole or part of the said sum of money and costs, the court
officer shall, unless the district judge responsible for execution of the warrant directs otherwise, send a warning notice to the person against whom the warrant is issued and, where such a notice is sent, the warrant shall not be levied until 7 days thereafter.
(5) Where judgment is given or an order made for payment otherwise than by instalments of a sum of money and costs to be assessed in accordance with CPR Part 47 (detailed assessment procedure) and default is made in payment of the sum of money before the costs have been assessed, a warrant of execution may issue for recovery of the sum of money and a separate warrant may issue subsequently for the recovery of the costs if default is made in payment of them.
Execution of High Court judgment
Rule 2. (1) Where it is desired to enforce by warrant of execution a judgment or order of the High Court, or a judgment, order, decree or award which is or has become enforceable as if it were a judgment of the High Court, the request referred to in rule 1 (1) may be filed in any court in the district of which execution is to be levied.
(2) Subject to Order 25, rule 9 (5), any restriction imposed by these rules on the issue of execution shall apply as if the judgment, order, decree or award were a judgment or order of the county court, but permission to issue execution shall not be required if permission has already been given by the High Court.
(3) Notice of the issue of the warrant shall be sent by the county court to the High Court.
Execution against farmer
Rule 3. If after the issue of a warrant of execution the district judge for the district in which the warrant is to be executed has reason to believe that the debtor is a farmer, the execution creditor shall, if so required by the district judge, furnish him with an official certificate, dated not more than three days beforehand, of the result of a search at the Land Registry as to the existence of any charge registered against the debtor under the Agricultural Credits Act 1928(269).
Concurrent warrants
Rule 4. Two or more warrants of execution may be issued concurrently for execution in different districts, but—
(a) no more shall be levied under all the warrants together than is authorised to be levied under one of them; and
(b) the costs of more than one such warrant shall not be allowed against the debtor except by order of the court.
(269)1928 c. 43.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
368
Permission to issue certain warrants
Rule 5. (1) A warrant of execution shall not issue without the permission of the court where— (a) six years or more have elapsed since the date of the judgment or order; (b) any change has taken place, whether by death or otherwise in the parties entitled to enforce
the judgment or order or liable to have it enforced against them; (c) the judgment or order is against the assets of a deceased person coming into the hands of
his executors or administrators after the date of the judgment or order and it is sought to issue execution against such assets; or
(d) any goods to be seized under a warrant of execution are in the hands of a receiver appointed by a court.
(2) An application for permission shall be supported by a witness statement or affidavit establishing the applicant’s right to relief and may be made without notice being served on any other party in the first instance but the court may direct the application notice to be served on such persons as it thinks fit.
(3) Where, by reason of one and the same event, a person seeks permission under paragraph (1) (b) to enforce more judgments or orders than one, he may make one application only, specifying in a schedule all the judgments or orders in respect of which it is made, and if the application notice is directed to be served on any person, it need set out only such part of the application as affects him.
(4) Paragraph (1) is without prejudice to any enactment, rule or direction by virtue of which a person is required to obtain the permission of the court for the issue of a warrant or to proceed to execution or otherwise to the enforcement of a judgment or order.
Duration and renewal of warrant
Rule 6. (1) A warrant of execution shall, for the purpose of execution, be valid in the first instance for 12 months beginning with the date of its issue, but if not wholly executed, it may be renewed from time to time, by order of the court, for a period of 12 months at any one time, beginning with the day next following that on which it would otherwise expire, if an application for renewal is made before that day or such later day (if any) as the court may allow.
(2) A note of any such renewal shall be indorsed on the warrant and it shall be entitled to priority according to the time of its original issue or, where appropriate, its receipt by the district judge responsible for its execution.
Notice on levy
Rule 7. Any bailiff upon levying execution shall deliver to the debtor or leave at the place where execution is levied a notice of the warrant.
Bankruptcy or winding up of debtor
Rule 8. (1) Where the district judge responsible for the execution of a warrant is required by any provision of the Insolvency Act 1986(270) or any other enactment relating to insolvency to retain the proceeds of sale of goods sold under the warrant or money paid in order to avoid a sale, the court shall, as soon as practicable after the sale or the receipt of the money, send notice to the execution creditor and, if the warrant issued out of another court, to that court.
(2) Where the district judge responsible for the execution of a warrant—
(270)1986 c. 45.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
369
(a) receives notice that a bankruptcy order has been made against the debtor or, if the debtor is a company, that a provisional liquidator has been appointed or that an order has been made or a resolution passed for the winding up of the company; and
(b) withdraws from possession of goods seized or pays over to the official receiver or trustee in bankruptcy or, if the debtor is a company, to the liquidator the proceeds of sale of goods sold under the warrant or money paid in order to avoid a sale or seized or received in part satisfaction of the warrant,
the court shall send notice to the execution creditor and, if the warrant issued out of another court, to that court.
(3) Where the court officer of a court to which a warrant issued out of another court has been sent for execution receives any such notice as is referred to in paragraph (2)(a) after he has sent to the home court any money seized or received in part satisfaction of the warrant, he shall forward the notice to that court.
Withdrawal and suspension of warrant at creditor’s request
Rule 10. (1) Where an execution creditor requests the district judge responsible for executing a warrant to withdraw from possession, he shall, subject to the following paragraphs of this rule, be treated as having abandoned the execution, and the court shall mark the warrant as withdrawn by request of the execution creditor.
(2) Where the request is made in consequence of a claim having been made under Order 33, rule 1, to goods seized under the warrant, the execution shall be treated as being abandoned in respect only of the goods claimed.
(3) If the district judge responsible for executing a warrant is requested by the execution creditor to suspend it in pursuance of an arrangement between him and the debtor, the court shall mark the warrant as suspended by request of the execution creditor and the execution creditor may subsequently apply to the district judge holding the warrant for it to be re-issued and, if he does so, the application shall be deemed for the purpose of section 85 (3) of the Act to be an application to issue the warrant.
(4) Nothing in this rule shall prejudice any right of the execution creditor to apply for the issue of a fresh warrant or shall authorise the re-issue of a warrant which has been withdrawn or has expired or has been superseded by the issue of a fresh warrant.
Suspension of part warrant
Rule 11. Where a warrant issued for part of a sum of money and costs payable under a judgment or order is suspended on payment of instalments, the judgment or order shall, unless the court otherwise directs, be treated as suspended on those terms as respects the whole of the sum of money and costs then remaining unpaid.
Inventory and notice where goods removed
Rule 12. (1) Where goods seized in execution are removed, the court shall forthwith deliver or send to the debtor a sufficient inventory of the goods removed and shall, not less than 4 days before the time fixed for the sale, give him notice of the time and place at which the goods will be sold.
(2) The inventory and notice shall be given to the debtor by delivering them to him personally or by sending them to him by post at his place of residence or, if his place of residence is not known, by leaving them for him, or sending them to him by post, at the place from which the goods were removed.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
370
Account of sale
Rule 13. Where goods are sold under an execution, the court shall furnish the debtor with a detailed account in writing of the sale and of the application of the proceeds.
Notification to foreign court of payment made
Rule 14. Where, after a warrant has been sent to a foreign court for execution but before a final return has been made to the warrant, the home court is notified of a payment made in respect of the sum for which the warrant is issued, the home court shall send notice of the payment to the foreign court.
Order for private sale
Rule 15. (1) Subject to paragraph (6), an order of the court under section 97 of the Act that a sale under an execution may be made otherwise than by public auction may be made on the application of the execution creditor or the debtor or the district judge responsible for the execution of the warrant.
(2) Where he is not the applicant for an order under this rule, the district judge responsible for the execution of the warrant shall, on the demand of the applicant, furnish him with a list containing the name and address of every execution creditor under any other warrant or writ of execution against the goods of the debtor of which the district judge has notice, and where the district judge is the applicant, he shall prepare such a list.
(3) Not less than 4 days before the day fixed for the hearing of the application, the applicant shall give notice of the application to each of the other persons by whom the application might have been made and to every person named in the list referred to in paragraph (2).
(4) The applicant shall produce the list to the court on the hearing of the application. (5) Every person to whom notice of the application was given may attend and be heard on the
hearing of the application. (6) Where the district judge responsible for the execution of the warrant is the district judge by
whom it was issued and he has no notice of any other warrant or writ of execution against the goods of the debtor, an order under this rule may be made by the court of its own motion with the consent of the execution creditor and the debtor or after giving them an opportunity of being heard.
Warrant of delivery
Rule 16. (1) Except where an Act or rule provides otherwise, a judgment or order for the delivery of any goods shall be enforceable by warrant of delivery in accordance with this rule.
(2) If the judgment or order does not give the person against whom it was given or made the alternative of paying the value of the goods, it may be enforced by a warrant of specific delivery, that is to say, a warrant to recover the goods without alternative provision for recovery of their value.
(3) If the judgment or order is for the delivery of the goods or payment of their value, it may be enforced by a warrant of delivery to recover the goods or their value.
(4) Where a warrant of delivery is issued, the judgment creditor shall be entitled, by the same or a separate warrant, to execution against the debtor’s goods for any money payable under the judgment or order which is to be enforced by the warrant of delivery.
(4A) Where a judgment or order is given or made for the delivery of goods or payment of their value and a warrant is issued to recover the goods or their value, money paid into court under the warrant shall be appropriated first to any sum of money and costs awarded.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
371
(5) The foregoing provisions of this Order, so far as applicable, shall have effect, with the necessary modifications, in relation to warrants of delivery as they have effect in relation to warrants of execution.
Warrant of possession
Rule 17. (1) A judgment or order for the recovery of land shall be enforceable by warrant of possession.
(2) Without prejudice to paragraph (3A), the person desiring a warrant of possession to be issued shall file a request in that behalf certifying that the land has not been vacated in accordance with the judgment or order for the recovery of the said land.
(3) Where a warrant of possession is issued, the judgment creditor shall be entitled, by the same or a separate warrant, to execution against the debtor’s goods for any money payable under the judgment or order which is to be enforced by the warrant of possession.
(3A) In a case to which paragraph (3) applies or where an order for possession has been suspended on terms as to payment of a sum of money by instalments, the judgment creditor shall in his request certify—
(a) the amount of money remaining due under the judgment or order; and (b) that the whole or part of any instalment due remains unpaid.
(4) A warrant of restitution may be issued, with the permission of the court, in aid of any warrant of possession.
(5) An application for permission under paragraph (4) may be made without notice being served on any other party and shall be supported by evidence of wrongful re-entry into possession following the execution of the warrant of possession and of such further facts as would, in the High Court, enable the judgment creditor to have a writ of restitution issued.
(6) Rules 5 and 6 shall apply, with the necessary modifications, in relation to a warrant of possession and any further warrant in aid of such a warrant as they apply in relation to a warrant of execution.
Saving for enforcement by committal
Rule 18. Nothing in rule 16 or 17 shall prejudice any power to enforce a judgment or order for the delivery of goods or the recovery of land by an order of committal.
CCR ORDER 27 ATTACHMENT OF EARNINGS
Part I—General
Interpretation
Rule 1. (1) In this Order— “the Act of 1971” means the Attachment of Earnings Act 1971(271) and, unless the context otherwise requires, expressions used in that Act have the same meanings as in that Act;
(271)1971 c. 32.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
372
Index of orders
Rule 2. (1) The court officer of every court shall keep a nominal index of the debtors residing within the district of his court in respect of whom there are in force attachment of earnings orders which have been made by that court or of which the court officer has received notice from another court.
(2) Where a debtor in respect of whom a court has made an attachment of earnings order resides within the district of another court, the court officer of the first-mentioned court shall send a copy of the order to the court officer of the other court for entry in his index.
(3) The court officer shall, on the request of any person having a judgment or order against a person believed to be residing within the district of the court, cause a search to be made in the index of the court and issue a certificate of the result of the search.
Appropriate court
Rule 3. (1) Subject to paragraphs (2) and (3), an application for an attachment of earnings order may be made to the court for the district in which the debtor resides.
(2) If the debtor does not reside within England or Wales, or the creditor does not know where he resides, the application may be made to the court in which, or for the district in which, the judgment or order sought to be enforced was obtained.
(3) Where the creditor applies for attachment of earnings orders in respect of two or more debtors jointly liable under a judgment or order, the application may be made to the court for the district in which any of the debtors resides, so however that if the judgment or order was given or made by any such court, the application shall be made to that court.
Mode of applying
Rule 4. (1) A judgment creditor who desires to apply for an attachment of earnings order shall file his application certifying the amount of money remaining due under the judgment or order and that the whole or part of any instalment due remains unpaid and, where it is sought to enforce an order of a magistrates' court—
(a) a certified copy of the order; and (b) a witness statement or affidavit verifying the amount due under the order or, if payments
under the order are required to be made to the clerk to the magistrates' court, a certificate by that clerk to the same effect.
(2) On the filing of the documents mentioned in paragraph (1) the court officer shall, where the order to be enforced is a maintenance order, fix a day for the hearing of the application.
Service and reply
Rule 5. (1) Notice of the application together with a form of reply in the appropriate form, shall be served on the debtor in the manner required for service of the notice of the day of hearing in accordance with Order 3, rule 6 except that Order 3, rule 6(11) shall not apply.
(2) The debtor shall, within 8 days after service on him of the documents mentioned in paragraph (1), file a reply in the form provided, and the instruction to that effect in the notice to the debtor shall constitute a requirement imposed by virtue of section 14 (4) of the Act of 1971:
Provided that no proceedings shall be taken for an offence alleged to have been committed under section 23 (2)(c) or (f) of the Act of 1971 in relation to the requirement unless the said documents have been served on the debtor personally or the court is satisfied that they came to his knowledge in sufficient time for him to comply with the requirement.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
373
(2A) Nothing in paragraph (2) shall require a defendant to file a reply if, within the period of time mentioned in that paragraph, he pays to the judgment creditor the money remaining due under the judgment or order and, where such payment is made, the judgment creditor shall so inform the court officer.
(3) On receipt of a reply the court officer shall send a copy to the applicant.
Notice to employer
Rule 6. Without prejudice to the powers conferred by section 14 (1) of the Act of 1971, the court officer may, at any stage of the proceedings, send to any person appearing to have the debtor in his employment a notice requesting him to give to the court, within such period as may be specified in the notice, a statement of the debtor’s earnings and anticipated earnings with such particulars as may be so specified.
Attachment of earnings order
Rule 7. (1) On receipt of the debtor’s reply, the court officer may, if he has sufficient information to do so, make an attachment of earnings order and a copy of the order shall be sent to the parties and to the debtor’s employer.
(2) Where an order is made under paragraph (1), the judgment creditor or the debtor may, within 14 days of service of the order on him and giving his reasons, apply on notice for the order to be re-considered and the court officer shall fix a day for the hearing of the application and give to the judgment creditor and the debtor not less than 2 days' notice of the day so fixed.
(3) On hearing an application under paragraph (2), the district judge may confirm the order or set it aside and make such new order as he thinks fit and the order so made shall be entered in the records of the court.
(4) Where an order is not made under paragraph (1), the court officer shall refer the application to the district judge who shall, if he considers that he has sufficient information to do so without the attendance of the parties, determine the application.
(5) Where the district judge does not determine the application under paragraph (4), he shall direct that a day be fixed for the hearing of the application whereupon the court officer shall fix such a day and give to the judgment creditor and the debtor not less than 8 days' notice of the day so fixed.
(6) Where an order is made under paragraph (4), the judgment creditor or the debtor may, within 14 days of service of the order on him and giving his reasons, apply on notice for the order to be re-considered; and the court officer shall fix a day for the hearing of the application and give to the judgment creditor and the debtor not less than 2 days' notice of the day so fixed.
(7) On hearing an application under paragraph (6), the district judge may confirm the order or set it aside and make such new order as he thinks fit and the order so made shall be entered in the records of the court.
(8) If the creditor does not appear at the hearing of the application under paragraph (5) but— (a) the court has received a witness statement or affidavit of evidence from him; or (b) the creditor requests the court in writing to proceed in his absence,
the court may proceed to hear the application and to make an order thereon. (9) An attachment of earnings order may be made to secure the payment of a judgment debt if
the debt is— (a) of not less than £50; or (b) for the amount remaining payable under a judgment for a sum of not less than £50.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
374
Failure by debtor
Rule 7A. (1) If the debtor has failed to comply with rule 5 (2) or to make payment to the judgment creditor, the court officer may issue an order under section 14 (1) of the Act of 1971 which shall—
(a) be indorsed with or incorporate a notice warning the debtor of the consequences of disobedience to the order;
(b) be served on the debtor personally; and (c) direct that any payments made thereafter shall be paid into the court and not direct to the
judgment creditor. (2) Without prejudice to rule 16, if the person served with an order made pursuant to paragraph (1)
fails to obey it or to file a statement of his means or to make payment, the court officer shall issue a notice calling on that person to show good reason why he should not be imprisoned and any such notice shall be served on the debtor personally not less than 5 days before the hearing.
(3) Order 29, rule 1 shall apply, with the necessary modifications and with the substitution of references to the district judge for references to the judge, where a notice is issued under paragraph (2) or (4) of that rule.
(4) In this rule “statement of means” means a statement given under section 14 (1) of the Act of 1971.
Suspended committal order
Rule 7B. (1) If the debtor fails to attend at an adjourned hearing of an application for an attachment of earnings order and a committal order is made, the judge or district judge may direct that the committal order shall be suspended so long as the debtor attends at the time and place specified in the committal order and paragraphs (2), (4) and (5) of Order 28, rule 7 shall apply, with the necessary modifications, where such a direction is given as they apply where a direction is given under paragraph (1) of that rule.
(2) Where a committal order is suspended under paragraph (1) and the debtor fails to attend at the time and place specified under paragraph (1), a certificate to that effect given by the court officer shall be sufficient authority for the issue of a warrant of committal.
Failure by debtor—maintenance orders
Rule 8. (1) An order made under section 23 (1) of the Act of 1971(272) for the attendance of the debtor at an adjourned hearing of an application for an attachment of earnings order to secure payments under a maintenance order shall—
(a) be served on the debtor personally not less than 5 days before the day fixed for the adjourned hearing; and
(b) direct that any payments made thereafter shall be paid into the court and not direct to the judgment creditor.
(2) An application by a debtor for the revocation of an order committing him to prison and, if he is already in custody, for his discharge under subsection (7) of the said section 23 shall be made to the judge or district judge in writing without notice to any other party showing the reasons for the debtor’s failure to attend the court or his refusal to be sworn or to give evidence, as the case may be, and containing an undertaking by the debtor to attend the court or to be sworn or to give evidence when next ordered or required to do so.
(272)1971 c. 32; section 23(1) was amended by the Administration of Justice Act 1982 (c. 53), section 53(2).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
375
(3) The application shall, if the debtor has already been lodged in prison, be attested by the governor of the prison (or any other officer of the prison not below the rank of principal officer) and in any other case be made on witness statement or affidavit.
(4) Before dealing with the application the judge or district judge may, if he thinks fit, cause notice to be given to the judgment creditor that the application has been made and of a day and hour when he may attend and be heard.
Costs
Rule 9. (1) Where costs are allowed to the judgment creditor on an application for an attachment of earnings order, there may be allowed—
(a) a charge of a solicitor for attending the hearing and, if the court so directs, for serving the application;
(b) if the court certifies that the case is fit for counsel, a fee to counsel; and (c) the court fee on the issue of the application.
(2) For the purpose of paragraph (1)(a) a solicitor who has prepared on behalf of the judgment creditor a witness statement or affidavit or request under rule 7 (8) shall be treated as having attended the hearing.
(3) The costs may be fixed and allowed without detailed assessment under CPR Part 47.
Contents and service of order
Rule 10. (1) An attachment of earnings order shall contain such of the following particulars relating to the debtor as are known to the court, namely—
(a) his full name and address; (b) his place of work; and (c) the nature of his work and his works number, if any,
and those particulars shall be the prescribed particulars for the purposes of section 6 (3) of the Act of 1971.
(2) An attachment of earnings order and any order varying or discharging such an order shall be served on the debtor and on the person to whom the order is directed, and CPR Part 6 and CPR rules 40.4 and 40.5 shall apply with the further modification that where the order is directed to a corporation which has requested the court that any communication relating to the debtor or to the class of persons to whom he belongs shall be directed to the corporation at a particular address, service may, if the district judge thinks fit, be effected on the corporation at that address.
(3) Where an attachment of earnings order is made to enforce a judgment or order of the High Court or a magistrates' court, a copy of the attachment of earnings order and of any order discharging it shall be sent by the court officer of the county court to the court officer of the High Court, or, as the case may be, the clerk of the magistrates' court.
Application to determine whether particular payments are earnings
Rule 11. An application to the court under section 16 of the Act of 1971 to determine whether payments to the debtor of a particular class or description are earnings for the purpose of an attachment of earnings order may be made to the district judge in writing and the court officer shall thereupon fix a date and time for the hearing of the application by the court and give notice thereof to the persons mentioned in the said section 16 (2)(a), (b) and (c).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
376
Notice of cesser
Rule 12. Where an attachment of earnings order ceases to have effect under section 8 (4) of the Act of 1971, the court officer of the court in which the matter is proceeding shall give notice of the cesser to the person to whom the order was directed.
Variation and discharge by court of own motion
Rule 13. (1) Subject to paragraph (9), the powers conferred by section 9 (1) of the Act of 1971 may be exercised by the court of its own motion in the circumstances mentioned in the following paragraphs.
(2) Where it appears to the court that a person served with an attachment of earnings order directed to him has not the debtor in his employment, the court may discharge the order.
(3) Where an attachment of earnings order which has lapsed under section 9 (4) of the Act of 1971 is again directed to a person who appears to the court to have the debtor in his employment, the court may make such consequential variations in the order as it thinks fit.
(4) Where, after making an attachment of earnings order, the court makes or is notified of the making of another such order in respect of the same debtor which is not to secure the payment of a judgment debt or payments under an administration order, the court may discharge or vary the first-mentioned order having regard to the priority accorded to the other order by paragraph 8 of Schedule 3 to the Act of 1971.
(5) Where, after making an attachment of earnings order, the court makes an order under section 4 (1)(b) of the Act of 1971(273) or makes an administration order, the court may discharge the attachment of earnings order or, if it exercises the power conferred by section 5 (3) of the said Act, may vary the order in such manner as it thinks fit.
(6) On making a consolidated attachment of earnings order the court may discharge any earlier attachment of earnings order made to secure the payment of a judgment debt by the same debtor.
(7) Where it appears to the court that a bankruptcy order has been made against a person in respect of whom an attachment of earnings order is in force to secure the payment of a judgment debt, the court may discharge the attachment of earnings order.
(8) Where an attachment of earnings order has been made to secure the payment of a judgment debt and the court grants permission to issue execution for the recovery of the debt, the court may discharge the order.
(9) Before varying or discharging an attachment of earnings order of its own motion under any of the foregoing paragraphs of this rule, the court shall, unless it thinks it unnecessary in the circumstances to do so, give the debtor and the person on whose application the order was made an opportunity of being heard on the question whether the order should be varied or discharged, and for that purpose the court officer may give them notice of a date, time and place at which the question will be considered.
Transfer of attachment order
Rule 14. (1) Where the court by which the question of making a consolidated attachment order falls to be considered is not the court by which any attachment of earnings order has been made to secure the payment of a judgment debt by the debtor, the district judge of the last-mentioned court shall, at the request of the district judge of the first-mentioned court, transfer to that court the matter in which the attachment of earnings order was made.
(273)1971 c. 32; section 4 was amended by the Insolvency Act 1976 (c. 60), section 13(2); and by the County Courts Act 1984 (c. 28), section 148(1), schedule 2, Part V, paragraph 40.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
377
(2) Without prejudice to paragraph (1), if in the opinion of the judge or district judge of any court by which an attachment of earnings order has been made, the matter could more conveniently proceed in some other court, whether by reason of the debtor having become resident in the district of that court or otherwise, he may order the matter to be transferred to that court.
(3) The court to which proceedings arising out of an attachment of earnings are transferred under this rule shall have the same jurisdiction in relation to the order as if it has been made by that court.
Exercise of power to obtain statement of earnings etc.
Rule 15. (1) An order under section 14 (1) of the Act of 1971 shall be indorsed with or incorporate a notice warning the person to whom it is directed of the consequences of disobedience to the order and shall be served on him personally.
(2) Order 34, rule 2, shall apply, with the necessary modifications, in relation to any penalty for failure to comply with an order under the said section 14 (1) or, subject to the proviso to rule 5 (2), any penalty for failure to comply with a requirement mentioned in that rule, as it applies in relation to a fine under section 55 of the County Courts Act 1984(274).
Offences
Rule 16. (1) Where it is alleged that a person has committed any offence mentioned in section 23 (2)(a), (b), (d), (e) or (f) of the Act of 1971 in relation to proceedings in, or to an attachment of earnings order made by, a county court, the district judge shall, unless it is decided to proceed against the alleged offender summarily, issue a summons calling upon him to show cause why he should not be punished for the alleged offence.
The summons shall be served on the alleged offender personally not less than 14 days before the return day.
(2) Order 34, rules 3 and 4, shall apply, with the necessary modifications, to proceedings for an offence under section 23 (2) of the Act of 1971 as they apply to proceedings for offences under the County Courts Act 1984(275).
Maintenance orders
Rule 17. (1) The foregoing rules of this Order shall apply in relation to maintenance payments as they apply in relation to a judgment debt, subject to the following paragraphs.
(2) An application for an attachment of earnings order to secure payments under a maintenance order made by a county court shall be made to that county court.
(3) Any application under section 32 of the Matrimonial Causes Act 1973(276) for permission to enforce the payment of arrears which became due more than 12 months before the application for an attachment of earnings order shall be made in that application.
(3A) Notice of the application together with a form of reply in the appropriate form shall be served in the manner required for service of the notice of the day of hearing in accordance with Order 3, rule 6.
(3B) Rule 5 (1) shall apply and rule 5 (2A) shall not apply. (4) An application by the debtor for an attachment of earnings order to secure payments under
a maintenance order may be made on the making of the maintenance order or an order varying the maintenance order, and rules 4 and 5 shall not apply.
(274)1984 c. 28. (275)1984 c. 28. (276)1973 c. 18.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
378
(5) Rule 7 shall have effect as if for paragraphs (1) to (8) there were substituted the following paragraph—
“(1) An application for an attachment of earnings order may be heard and determined by the district judge, who shall hear the application in private.”
(6) Rule 9 shall apply as if for the reference to the amount payable under the relevant adjudication there were substituted a reference to the arrears due under the related maintenance order.
(7) Where an attachment of earnings order made by the High Court designates the court officer of a county court as the collecting officer, that officer shall, on receipt of a certified copy of the order from the court officer of the High Court, send to the person to whom the order is directed a notice as to the mode of payment.
(8) Where an attachment of earnings order made by a county court to secure payments under a maintenance order ceases to have effect and—
(a) the related maintenance order was made by that court; or (b) the related maintenance order was an order of the High Court and—
(i) the court officer of the county court has received notice of the cessation from the court officer of the High Court; or
(ii) a committal order has been made in the county court for the enforcement of the related maintenance order,
the court officer of the county court shall give notice of the cessation to the person to whom the attachment of earnings order was directed.
(9) Where an attachment of earnings order has been made by a county court to secure payments under a maintenance order, notice under section 10 (2) of the Act of 1971 to the debtor and to the person to whom the district judge is required to pay sums received under the order shall be in the form provided for that purpose, and if the debtor wishes to request the court to discharge the attachment of earnings order or to vary it otherwise than by making the appropriate variation, he shall apply to the court, within 14 days after the date of the notice, for the remedy desired.
(10) Rule 13 shall have effect as if for paragraphs (4) to (7) there were substituted the following paragraph:—
“(4) Where it appears to the court by which an attachment of earnings order has been made that the related maintenance order has ceased to have effect, whether by virtue of the terms of the maintenance order or under section 28 of the Matrimonial Causes Act 1973(277) or otherwise, the court may discharge or vary the attachment of earnings order.”
Part II—Consolidated Attachment of Earnings Orders
Cases in which consolidated order may be made
Rule 18. Subject to the provisions of rules 19 to 21, the court may make a consolidated attachment order where—
(a) two or more attachment of earnings orders are in force to secure the payment of judgment debts by the same debtor; or
(b) on an application for an attachment of earnings order to secure the payment of a judgment debt, or for a consolidated attachment order to secure the payment of two or more judgment debts, it appears to the court that an attachment of earnings order is already in force to secure the payment of a judgment debt by the same debtor.
(277)1973 c. 18; section 28(1) was amended by the Matrimonial and Family Proceedings Act 1984 (c. 42), section 5.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
379
Application for consolidated order
Rule 19. (1) An application for a consolidated attachment order may be made— (a) by the debtor in respect of whom the order is sought; or (b) by any person who has obtained or is entitled to apply for an attachment of earnings order
to secure the payment of a judgment debt by that debtor. (2) An application under paragraph (1) may be made in the proceedings in which any attachment
of earnings order (other than a priority order) is in force and rules 3, 4 and 5 of this Order shall not apply.
(3) Where the judgment which it is sought to enforce was not given by the court which made the attachment of earnings order, the judgment shall be automatically transferred to the court which made the attachment of earnings order.
(3A) An application under paragraph (1)(b) shall certify the amount of money remaining due under the judgment or order and that the whole or part of any instalment due remains unpaid.
(3B) Where an application for a consolidated attachment of earnings order is made, the court officer shall—
(a) notify any party who may be affected by the application of its terms; and (b) require him to notify the court in writing, within 14 days of service of notification upon
him, giving his reasons for any objection he may have to the granting of the application. (3C) If notice of any objection is not given within the time stated, the court officer shall make
a consolidated attachment of earnings order. (3D) If any party objects to the making of a consolidated attachment of earnings order, the court
officer shall refer the application to the district judge who may grant the application after considering the objection made and the reasons given.
(3E) In the foregoing paragraphs of this rule, a party affected by the application means— (a) where the application is made by the debtor, the creditor in the proceedings in which the
application is made and any other creditor who has obtained an attachment of earnings order which is in force to secure the payment of a judgment debt by the debtor;
(b) where the application is made by the judgment creditor, the debtor and every person who, to the knowledge of the applicant, has obtained an attachment of earnings order which is in force to secure the payment of a judgment debt by the debtor.
(4) A person to whom two or more attachment of earnings orders are directed to secure the payment of judgment debts by the same debtor may request the court in writing to make a consolidated attachment order to secure the payment of those debts, and on receipt of such a request paragraphs (3B) to (3E) shall apply, with the necessary modifications, as if the request were an application by the judgment creditor.
Making of consolidated order by court of its own motion
Rule 20. Where an application is made for an attachment of earnings order to secure the payment of a judgment debt by a debtor in respect of whom an attachment of earnings order is already in force to secure the payment of another judgment debt and no application is made for a consolidated attachment order, the court officer may make such an order of his own motion after giving all persons concerned an opportunity of submitting written objections.
Extension of consolidated order
Rule 21. (1) Where a consolidated attachment order is in force to secure the payment of two or more judgment debts, any creditor to whom another judgment debt is owed by the same judgment
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
380
debtor may apply to the court by which the order was made for it to be extended so as to secure the payment of that debt as well as the first-mentioned debts and, if the application is granted, the court may either vary the order accordingly or may discharge it and make a new consolidated attachment order to secure payment of all the aforesaid judgment debts.
(2) An application under this rule shall be treated for the purposes of rules 19 and 20 as an application for a consolidated attachment order.
Payments under consolidated order
Rule 22. Instead of complying with section 13 of the Act of 1971, a court officer who receives payments made to him in compliance with a consolidated attachment order shall, after deducting such court fees, if any, in respect of proceedings for or arising out of the order as are deductible from those payments, deal with the sums paid as he would if they had been paid by the debtor to satisfy the relevant adjudications in proportion to the amounts payable thereunder, and for that purpose dividends may from time to time be declared and distributed among the creditors entitled thereto.
CCR ORDER 28 JUDGMENT SUMMONSES
Application for judgment summons
Rule 1. (1) An application for the issue of a judgment summons may be made to the court for the district in which the debtor resides or carries on business or, if the summons is to issue against two or more persons jointly liable under the judgment or order sought to be enforced, in the court for the district in which any of the debtors resides or carries on business.
(2) The judgment creditor shall make his application by filing a request in that behalf certifying the amount of money remaining due under the judgment or order, the amount in respect of which the judgment summons is to issue and that the whole or part of any instalment due remains unpaid.
Mode of service
Rule 2. (1) Subject to paragraph (2), a judgment summons shall be served personally on every debtor against whom it is issued.
(2) Where the judgment creditor or his solicitor gives a certificate for postal service in respect of a debtor residing or carrying on business within the district of the court, the judgment summons shall, unless the district judge otherwise directs, be served on that debtor by an officer of the court sending it to him by first-class post at the address stated in the request for the judgment summons and, unless the contrary is shown, the date of service shall be deemed to be the seventh day after the date on which the judgment summons was sent to the debtor.
(3) Where a judgment summons has been served on a debtor in accordance with paragraph (2), no order of commitment shall be made against him unless—
(a) he appears at the hearing; or (b) the judge is satisfied that the summons came to his knowledge in sufficient time for him
to appear at the hearing. (4) Where a judgment summons is served personally, there may, if the judgment creditor so
desires, be paid to the debtor at the time of service a sum reasonably sufficient to cover his expenses in travelling to and from the court.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
381
Time for service
Rule 3. (1) A judgment summons shall be served not less than 14 days before the day fixed for the hearing.
(2) A notice of non-service shall be sent pursuant to CPR rule 6.11 in respect of a judgment summons which has been sent by post under rule 2 (2) and has been returned to the court office undelivered.
(3) CPR rules 7.5 and 7.6 shall apply, with the necessary modifications, to a judgment summons as they apply to a claim form.
Enforcement of debtor’s attendance
Rule 4. (1) Order 27, rules 7B and 8, shall apply, with the necessary modifications, to an order made under section 110 (1) of the Act for the attendance of the debtor at an adjourned hearing of a judgment summons as they apply to an order made under section 23 (1)of the Attachment of Earnings Act 1971(278) for the attendance of the debtor at an adjourned hearing of an application for an attachment of earnings order.
(2) At the time of service of the order there shall be paid or tendered to the debtor a sum reasonably sufficient to cover his expenses in travelling to and from the court, unless such a sum was paid to him at the time of service of the judgment summons.
Evidence by witness statement or affidavit
Rule 5. Where the judgment creditor does not reside or carry on business within the district of the court from which the judgment summons issued, evidence by witness statement or affidavit shall be admissible on his behalf without any notice having been given, unless the judge otherwise directs.
Suspension of committal order
Rule 7. (1) If on the hearing of a judgment summons a committal order is made, the judge may direct execution of the order to be suspended to enable the debtor to pay the amount due.
(2) A note of any direction given under paragraph (1) shall be entered in the records of the court and notice of the suspended committal order shall be sent to the debtor.
(3) Where a judgment summons is issued in respect of one or more but not all of the instalments payable under a judgment or order for payment by instalments and a committal order is made and suspended under paragraph (1), the judgment or order shall, unless the judge otherwise orders, be suspended for so long as the execution of the committal order is suspended.
(4) Where execution of a committal order is suspended under paragraph (1) and the debtor subsequently desires to apply for a further suspension, the debtor shall attend at or write to the court office and apply for the suspension he desires, stating the reasons for his inability to comply with the terms of the original suspension, and the court shall fix a day for the hearing of the application by the judge and give at least 3 days' notice thereof to the judgment creditor and the debtor.
(5) The district judge may suspend execution of the committal order pending the hearing of an application under paragraph (4).
New order on judgment summons
Rule 8. (1) Where on the hearing of a judgment summons, the judge makes a new order for payment of the amount of the judgment debt remaining unpaid, there shall be included in the amount payable under the order for the purpose of any enforcement proceedings, otherwise than by judgment
(278)1971 c. 32; section 23(1) was amended by the Administration of Justice Act 1982 (c. 53), section 53(2).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
382
summons, any amount in respect of which a committal order has already been made and the debtor imprisoned.
(2) No judgment summons under the new order shall include any amount in respect of which the debtor was imprisoned before the new order was made, and any amount subsequently paid shall be appropriated in the first instance to the amount due under the new order.
Notification of order on judgment of High Court
Rule 9. (1) Notice of the result of the hearing of a judgment summons on a judgment or order of the High Court shall be sent by the county court to the High Court.
(2) If a committal order or a new order for payment is made on the hearing, the office copy of the judgment or order filed under Order 25, rule 11, shall be deemed to be a judgment or order of the court in which the judgment summons is heard, and if the judgment creditor subsequently desires to issue a judgment summons in another county court, Order 25, rule 2, shall apply with the necessary modifications.
Costs on judgment summons
Rule 10. (1) No costs shall be allowed to the judgment creditor on the hearing of a judgment summons unless—
(a) a committal order is made; or (b) the sum in respect of which the judgment summons was issued is paid before the hearing.
(2) Where costs are allowed to the judgment creditor, (a) there may be allowed—
(i) a charge of the judgment creditor’s solicitor for attending the hearing and, if the judge so directs, for serving the judgment summons;
(ii) a fee to counsel if the court certifies that the case is fit for counsel; (iii) any travelling expenses paid to the debtor, and (iv) the court fee on the issue of the judgment summons;
(b) the costs may be fixed and allowed without detailed assessment under CPR Part 47. (3) For the purposes of paragraph (2)(a)(i) a solicitor who has prepared on behalf of the judgment
creditor a witness statement or affidavit under rule 5 shall be treated as having attended the hearing.
Issue of warrant of committal
Rule 11. (1) A judgment creditor desiring a warrant to be issued pursuant to a committal order shall file a request in that behalf.
(2) Where two or more debtors are to be committed in respect of the same judgment or order, a separate warrant of committal shall be issued for each of them.
(3) Where a warrant of committal is sent to a foreign court for execution, that court shall indorse on it a notice as to the effect of section 122 (3) of the Act addressed to the governor of the prison of that court.
Notification to foreign court of part payment before debtor lodged in prison
Rule 12. Where, after a warrant of committal has been sent to a foreign court for execution but before the debtor is lodged in prison, the home court is notified that an amount which is less than the sum on payment of which the debtor is to be discharged has been paid, the home court shall send notice of the payment to the foreign court.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
383
Payment after debtor lodged in prison
Rule 13. (1) Where, after the debtor has been lodged in prison under a warrant of committal, payment is made of the sum on payment of which the debtor is to be discharged, then—
(a) if the payment is made to the court responsible for the execution of the warrant, he shall make and sign a certificate of payment and send it by post or otherwise to the gaoler;
(b) if the payment is made to the court which issued the warrant of committal after the warrant has been sent to a foreign court for execution, the home court shall send notice of the payment to the foreign court, which shall make and sign a certificate of payment and send it by post or otherwise to the gaoler;
(c) if the payment is made to the gaoler, he shall sign a certificate of payment and send the amount to the court which made the committal order.
(2) Where, after the debtor has been lodged in prison under a warrant of committal, payment is made of an amount less than the sum on payment of which the debtor is to be discharged, then subject to paragraph (3), paragraph (1)(a) and (b) shall apply with the substitution of references to a notice of payment for the references to a certificate of payment and paragraph (1)(c)shall apply with the omission of the requirement to make and sign a certificate of payment.
(3) Where, after the making of a payment to which paragraph (2) relates, the balance of the sum on payment of which the debtor is to be discharged is paid, paragraph (1) shall apply without the modifications mentioned in paragraph (2).
Discharge of debtor otherwise than on payment
Rule 14. (1) Where the judgment creditor lodges with the district judge a request that a debtor lodged in prison under a warrant of committal may be discharged from custody, the district judge shall make an order for the discharge of the debtor in respect of the warrant of committal and the court shall send the gaoler a certificate of discharge.
(2) Where a debtor who has been lodged in prison under a warrant of committal desires to apply for his discharge under section 121 of the Act, the application shall be made to the judge in writing and without notice showing the reasons why the debtor alleges that he is unable to pay the sum in respect of which he has been committed and ought to be discharged and stating any offer which he desires to make as to the terms on which his discharge is to be ordered, and Order 27, rule 8 (3) and (4), shall apply, with the necessary modifications, as it applies to an application by a debtor for his discharge from custody under section 23 (7) of the Attachment of Earnings Act 1971(279).
(3) If in a case to which paragraph (2) relates the debtor is ordered to be discharged from custody on terms which include liability to re-arrest if the terms are not complied with, the judge may, on the application of the judgment creditor if the terms are not complied with, order the debtor to be re-arrested and imprisoned for such part of the term of imprisonment as remained unserved at the time of discharge.
(4) Where an order is made under paragraph (3), a duplicate warrant of committal shall be issued, indorsed with a certificate signed by the court officer as to the order of the judge.
(279)1971 c. 32.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
384
CCR ORDER 29 COMMITTAL FOR BREACH OF ORDER OR UNDERTAKING
Enforcement of judgment to do or abstain from doing any act
Rule 1. (1) Where a person required by a judgment or order to do an act refuses or neglects to do it within the time fixed by the judgment or order or any subsequent order, or where a person disobeys a judgment or order requiring him to abstain from doing an act, then, subject to the Debtors Acts 1869 and 1878(280) and to the provisions of these rules, the judgment or order may be enforced, by order of the judge, by a committal order against that person or, if that person is a body corporate, against any director or other officer of the body.
(2) Subject to paragraphs (6) and (7), a judgment or order shall not be enforced under paragraph (1) unless—
(a) a copy of the judgment or order has been served personally on the person required to do or abstain from doing the act in question and also, where that person is a body corporate, on the director or other officer of the body against whom a committal order is sought, and
(b) in the case of a judgment or order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act and was accompanied by a copy of any order, made between the date of the judgment or order and the date of service, fixing that time.
(3) Where a judgment or order enforceable by committal order under paragraph (1) has been given or made, the court officer shall, if the judgment or order is in the nature of an injunction, at the time when the judgment or order is drawn up, and in any other case on the request of the judgment creditor, issue a copy of the judgment or order, indorsed with or incorporating a notice as to the consequences of disobedience, for service in accordance with paragraph (2).
(4) If the person served with the judgment or order fails to obey it, the judgment creditor may issue a claim form or, as the case may be, an application notice seeking the committal for contempt of court of that person and subject to paragraph (7), the claim form or application notice shall be served on him personally.
(4A) The claim form or application notice (as the case may be) shall:— (a) identify the provisions of the injunction or undertaking which it is alleged have been
disobeyed or broken; (b) list the ways in which it is alleged that the injunction has been disobeyed or the undertaking
has been broken. (c) be supported by an affidavit stating the grounds on which the application is made, and
unless service is dispensed with under paragraph (7), a copy of the affidavit shall be served with the claim form or application notice.
(5) If a committal order is made, the order shall be for the issue of a warrant of committal and, unless the judge otherwise orders—
(a) a copy of the order shall be served on the person to be committed either before or at the time of the execution of the warrant; or
(b) where the warrant has been signed by the judge, the order for issue of the warrant may be served on the person to be committed at any time within 36 hours after the execution of the warrant.
(6) A judgment or order requiring a person to abstain from doing an act may be enforced under paragraph (1) notwithstanding that service of a copy of the judgment or order has not been effected in
(280)1869 c. 62; 1878 c. 54.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
385
accordance with paragraph (2) if the judge is satisfied that, pending such service, the person against whom it is sought to enforce the judgment or order has had notice thereof either—
(a) by being present when the judgment or order was given or made, or (b) by being notified of the terms of the judgment or order whether by telephone, telegram
or otherwise. (7) Without prejudice to its powers under Part 6 of the CPR, the court may dispense with service
of a copy of a judgment or order under paragraph (2) or a claim form or application notice under paragraph (4) if the court thinks it just to do so.
(8) Where service of the claim form or application notice has been dispensed with under paragraph (7) and a committal order is made in the absence of the respondent, the judge may on his own initiative fix a date and time when the person to be committed is to be brought before him or before the court.
Undertaking given by party
Rule 1A. Rule 1 (except paragraph (6) shall apply to undertakings as it applies to orders with the necessary modifications and as if—
(a) for paragraph (2) of that rule there were substituted the following— “(2) A copy of the document recording the undertaking shall be delivered by the
court officer to the party giving the undertaking— (a) by handing a copy of the document to him before he leaves the court building;
or (b) where his place of residence is known, by posting a copy to him at his place
of residence; or (c) through his solicitor,
and, where delivery cannot be effected in this way, the court officer shall deliver a copy of the document to the party for whose benefit the undertaking is given and that party shall cause it to be served personally as soon as is practicable.”
(b) in paragraph (7), the words from “a copy of” to “paragraph (2) or” were omitted.
Solicitor’s undertaking
Rule 2. (1) An undertaking given by a solicitor in relation to any proceeding in a county court may be enforced, by order of the judge of that court, by committal order against the solicitor.
(2) Where it appears to the judge that a solicitor has failed to carry out any such undertaking, he may of his own initiative direct the court officer to issue a notice calling on the solicitor to show cause why he should not be committed to prison.
(3) Where any party to the proceedings desires to have the undertaking enforced by committal order, the court officer shall, on the application of the party supported by an affidavit setting out the facts on which the application is based, issue such a notice as is referred to in paragraph (2).
Discharge of person in custody
Rule 3. (1) Where a person in custody under a warrant or order, other than a warrant of committal to which Order 27, rule 8, or Order 28, rule 4 or 14, relates, desires to apply to the court for his discharge, he shall make his application in writing attested by the governor of the prison (or any other officer of the prison not below the rank of principal officer) showing that he has purged or is desirous of purging his contempt and shall, not less than one day before the application is made, serve notice of it on the party, if any, at whose instance the warrant or order was issued.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
386
(2) If the committal order— (a) does not direct that any application for discharge shall be made to a judge; or (b) was made by the district judge under section 118 of the Act(281),
any application for discharge may be made to the district judge. (3) Nothing in paragraph (1) shall apply to an application made by the Official Solicitor in his
official capacity for the discharge of a person in custody.
CCR ORDER 30 GARNISHEE PROCEEDINGS
Attachment of debt due to judgment debtor
Rule 1. (1) Where a person (in this Order called “the judgment creditor”) has obtained in a county court a judgment or order for the payment of a sum of money amounting in value to at least £50 by some other person (“the judgment debtor”) and any person within England and Wales (“the garnishee”) is indebted to the judgment debtor, that court may, subject to the provisions of this Order and of any enactment, order the garnishee to pay the judgment creditor the amount of any debt due or accruing due from the garnishee to the judgment debtor or so much thereof as is sufficient to satisfy the judgment or order against the judgment debtor and the costs of the garnishee proceedings.
(2) An order under this rule shall in the first instance be an order to show cause, specifying the place and time for the further consideration of the matter (in this Order called “the return day”) and in the meantime attaching the debt due or accruing due from the garnishee or so much of it as is sufficient for the purpose aforesaid.
(3) Among the conditions mentioned in section 108 (3) of the Act (which enables any sum standing to the credit of a person in certain types of account to be attached notwithstanding that certain conditions applicable to the account in question have not been satisfied) there shall be included any condition that a receipt for money deposited in the account must be produced before any money is withdrawn.
(5) An order under this rule shall not require a payment which would reduce below £1 the amount standing in the name of the judgment debtor in an account with a building society or a credit union.
Application for order
Rule 2. An application for an order under rule 1 may be made without notice being served on any other party by filing a witness statement or affidavit—
(a) stating the name and last known address of the judgment debtor; (b) identifying the judgment or order to be enforced and stating the amount of such judgment
or order; (c) stating that, to the best of the information or belief of the witness, the garnishee (giving
his name and address) is indebted to the judgment debtor; (d) where the garnishee is a deposit-taking institution having more than one place of business,
giving the name and address of the branch at which the judgment debtor’s account is believed to be held and the number of that account or, if it be the case, that all or part of this information is unknown to the witness; and
(281)Section 118 was amended by the Statute Law (Repeals) Act 1986 (c. 12); and by the Courts and Legal Services Act 1990 (c. 41), section 74(6).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
387
(e) certifying the amount of money remaining due under the judgment or order and that the whole or part of any instalment due remains unpaid.
Preparation, service and effect of order to show cause
Rule 3. (1) An order under rule 1 to show cause shall be drawn up by the court with sufficient copies for service under this rule.
(2) Unless otherwise directed, a copy of the order shall be served— (a) on the garnishee in the manner required for the notice of the day of hearing in accordance
with Order 3, rule 6 at least 15 days before the return day; (b) on the judgment debtor in accordance with CPR Part 6 at least 7 days after a copy has been
served on the garnishee and at least 7 days before the return day, and as from such service on the garnishee the order shall bind in his hands any debt due or accruing due from the garnishee to the judgment debtor, or so much thereof as is sufficient to satisfy the judgment or order obtained by the judgment creditor against the judgment debtor, and the costs entered on the order to show cause.
Notice by deposit-taking institution denying indebtedness
Rule 5. Where the garnishee being a deposit-taking institution alleges that it does not hold any money to the credit of the judgment debtor, the garnishee may, at any time before the return day, give notice to that effect to the court and to the judgment creditor and thereupon, subject to rule 8 the proceedings against the garnishee shall be stayed.
Order where no notice given etc.
Rule 7. (1) Where the garnishee— (a) does not give notice under rule 5; and (b) does not on the return day appear or dispute the debt due or claimed to be due from him
to the judgment debtor, then, if the judgment debtor does not appear or show cause to the contrary, the court may, if it thinks fit, make an order absolute under rule 1 against the garnishee.
(2) An order absolute under rule 1 may be enforced in the same manner as any other order for the payment of money.
Directions where dispute as to notice under rule 5
Rule 8. Where the garnishee in a notice given under rule 5 makes an allegation which the judgment creditor disputes, the court shall on the return day give directions for the determination of the question at issue.
Determination of liability in other cases
Rule 9. Where in a case in which no notice has been given under rule 5 the garnishee on the return day disputes liability to pay the debt due or claimed to be due from him to the judgment debtor, the court may summarily determine the question at issue or order that any question necessary for determining the liability of the garnishee be tried in any manner in which any question or issue in proceedings may be tried.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
388
Transfer of proceedings
Rule 10. A garnishee who does not reside or carry on business within the district of the court in which the garnishee proceedings have been commenced and who desires to dispute liability for the debt due or claimed to be due from him to the judgment debtor may apply without notice being served on any other party in writing to that court for an order transferring the proceedings in which the judgment or order sought to be enforced was obtained to the court for the district in which the garnishee resides or carries on business, and the court applied to may, if it thinks fit, grant the application after considering any representations which it may give the judgment creditor and the judgment debtor an opportunity of making.
Discharge of garnishee
Rule 11. Any payment made by a garnishee in compliance with an order absolute in garnishee proceedings, and any execution levied against him in pursuance of such an order, shall be a valid discharge of his liability to the judgment debtor to the extent of the amount paid or levied (otherwise than in respect of any costs ordered to be paid by the garnishee personally), notwithstanding that the garnishee proceedings are subsequently set aside or the judgment or order from which they arise is reversed.
Money in court
Rule 12. (1) Where money is standing to the credit of the judgment debtor in any county court, the judgment creditor shall not be entitled to take garnishee proceedings in respect of the money but may apply to the court on notice for an order that the money or so much of it as is sufficient to satisfy the judgment or order sought to be enforced and the costs of the application be paid to the judgment creditor.
(2) On receipt of notice of an application under paragraph (1) the court officer shall retain the money in court until the application has been determined.
(3) The court hearing an application under paragraph (1) may make such order with respect to the money in court as it thinks just.
Costs of judgment creditor
Rule 13. Any costs allowed to the judgment creditor on an application for an order under rule 1 or 12 which in the former case are not ordered to be paid by the garnishee personally shall, unless the court otherwise directs be retained by the judgment creditor out of the money recovered by him under the order in priority to the amount due under the judgment or order obtained by him against the judgment debtor.
Attachment of debt owed by firm
Rule 14. (1) An order may be made under rule 1 in relation to a debt due or accruing due from a firm carrying on business within England and Wales, notwithstanding that one or more members of the firm may be resident out of England and Wales.
(2) An order to show cause under rule 1 relating to such a debt shall be served on a member of the firm within England and Wales or on some other person having the control or management of the partnership business.
Powers of district judge
Rule 15. The powers conferred on the court by any provision of this Order may be exercised by the judge or district judge.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
389
CCR ORDER 31 CHARGING ORDERS
Application for charging order
Rule 1. (1) An application to a county court for a charging order under section 1 of the Charging Orders Act 1979(282) may be made—
(a) if the order is sought in respect of a fund in court, to the court where the money is lodged; (b) subject to (a), if the judgment or order sought to be enforced is that of a county court, to
the court in which the judgment or order was obtained or, if the proceedings have been transferred to another court under CPR rule 30.2(1)(b)(ii) or Order 25, rule 2, the court to which it has been transferred.
(c) subject to (a) and (b), to the court for the district in which the debtor resides or carries on business or, if there is no such district, to the court for the district in which the judgment creditor resides or carries on business.
(1A) An application for a charging order under paragraph 11 of Schedule 4 to the Local Government Finance Act 1992(283) shall be made to the court for the district in which the relevant dwelling (within the meaning of section 3 of that Act) is situated.
(2) The application may be made without notice being served on any other party by filing a witness statement or affidavit—
(a) stating the name and address of the debtor and, if known, of every creditor of his whom the applicant can identify;
(aa) certifying the amount of money remaining due under the judgment or order and that the whole or part of any instalment due remains unpaid;
(b) identifying the subject matter of the intended charge; (c) either verifying the debtor’s beneficial ownership of the asset to be charged or, where the
asset is held by one or more trustees (including where the asset is land which is jointly owned) and the applicant relies on paragraph (b) of section 2 (1) of the said Act of 1979, stating on which of the three grounds appearing in that paragraph the application is based and verifying the material facts;
(d) stating, in the case of securities other than securities in court, the name and address of the person or body to be served for the purpose of protecting the intended charge;
(e) stating, where the subject matter is an interest under a trust, or held by a trustee, the names and addresses of such trustees and beneficiaries as are known to the applicant.
Where the judgment or order to be enforced is a judgment or order of the High Court or a judgment, order, decree or award of a court or arbitrator which is or has become enforceable as if it were a judgment or order of the High Court, the applicant shall file with his witness statement or affidavit the documents mentioned in Order 25, rule 11 (a) and (c), and the witness statement or affidavit shall verify the amount unpaid at the date of the application.
(3) Subject to paragraph (1), an application may be made for a single charging order in respect of more than one judgment or order against a debtor.
(4) Upon the filing of the witness statement or affidavit mentioned in paragraph (2), the application shall be entered in the records of the court, and if, in the opinion of the district judge, a
(282)1979 c. 53; section 1 was amended by the Administration of Justice Act 1982 (c. 53) sections 34(3), 37, schedule 3, Part II, paragraphs 2, 3, 6; and by the County Courts Act 1984 (c. 28), section 148(1), schedule 2, Part V.
(283)1992 c. 14.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
390
sufficient case for such an order is made in the witness statement or affidavit, the district judge shall make a charging order nisi fixing a day for the further consideration of the matter by the court.
(5) A copy of the order shall be sent by the court officer to the judgment creditor and, where funds in court are to be charged, shall be served by the court officer on the Accountant-General at the Court Funds Office.
(6) Copies of the order and of the witness statement or affidavit shall be served by the judgment creditor on—
(a) the debtor; (b) the other creditors named in the witness statement or affidavit (unless the district judge
otherwise directs); and (c) where a trust is involved, on any trustee holding the asset to be charged, where the applicant
relies on paragraph (b) of section 2 (1) of the said Act of 1979 and on such other trustees and beneficiaries as the district judge may direct.
(7) Where an interest in securities not in court is to be charged, copies of the order nisi shall be served by the judgment creditor on the person or body required to be served in like circumstances by RSC Order 50, rule 2 (1)(b).
(8) The documents required by the foregoing paragraphs to be served shall be served in accordance with CPR Part 6 not less than 7 days before the day fixed for the further consideration of the matter.
(9) Upon further consideration of the matter service required under paragraph (6) or (7) shall be proved by witness statement or affidavit.
Order on further consideration of application for charging order
Rule 2. (1) On the day fixed under rule 1 (4) for the further consideration of the matter, the court shall either make the order absolute, with or without modifications, or discharge it.
(2) If an order absolute is made, a copy shall be served by the court officer, in accordance with CPR Part 6 on each of the following persons, namely—
(a) the debtor; (b) the applicant for the order; (c) where funds in court are charged, the Accountant General at the Court Funds Office; and (d) unless otherwise directed, any person or body on whom a copy of the order nisi was served
pursuant to rule 1 (7). (3) Every copy of an order served on a person or body under paragraph (2)(d) shall contain a
stop notice.
Effect of charging order etc.
Rule 3. (1) Where a charging order nisi or a charging order absolute has been made and served in accordance with rule 1 or 2, it shall have the same effect as an order made and served in like circumstances under RSC Order 50.
(2) The court may vary or discharge a charging order in the like circumstances and in accordance with the same procedure, with the necessary modifications, as a like order made by the High Court.
(3) The powers of the court under rule 2 or the last preceding paragraph, except the power to vary an order made by the judge, may be exercised by the district judge.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
391
Enforcement of charging order by sale
Rule 4. (1) Proceedings in a county court for the enforcement of a charging order by sale of the property charged shall be commenced by a claim form, which shall be filed in the appropriate court, together with a witness statement or affidavit and a copy thereof—
(a) identifying the charging order sought to be enforced and the subject matter of the charge; (b) specifying the amount in respect of which the charge was imposed and the balance
outstanding at the date of the application; (c) verifying, so far as known, the debtor’s title to the property charged; (d) identifying any prior incumbrances on the property charged, with, so far as known, the
names and addresses of the incumbrancers and the amounts owing to them; and (e) giving an estimate of the price which would be obtained on sale of the property.
(2) The appropriate court shall be— (a) if the charging order was made by a county court, that court; (b) in any other case, the court for the district in which the debtor resides or carries on business
or, if there is no such district, the court for the district in which the judgment creditor resides or carries on business.
(3) A copy of the witness statement or affidavit filed under paragraph (1) shall be served on the respondent with a copy of the claim form and a notice to each respondent of the date of the hearing.
(4) The proceedings may be heard and determined by a district judge. (5) The net proceeds of sale, after discharging any prior incumbrances and deducting the amount
referred to in paragraph (1)(b) and the costs of the sale, shall be paid into court.
CCR ORDER 33 INTERPLEADER PROCEEDINGS
Part I Under Execution
Notice of claim
Rule 1. (A1) In this Part of this Order “the interpleader claimant” means any person making a claim to or in respect of goods seized in execution or the proceeds or value thereof and “the interpleader claim” means that claim.
(1) The interpleader claimant shall deliver to the bailiff holding the warrant of execution, or file in the office of the court for the district in which the goods were seized, notice of his claim stating—
(a) the grounds of the interpleader claim or, in the case of a claim for rent, the particulars required by section 102 (2) of the Act; and
(b) the interpleader claimant’s full name and address. (2) On receipt of an interpleader claim made under this rule, the court shall—
(a) send notice thereof to the execution creditor; and (b) except where the interpleader claim is to the proceeds or value of the goods, send to
the interpleader claimant a notice requiring him to make a deposit or give security in accordance with section 100 of the Act.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
392
Reply to interpleader claim
Rule 2. (1) Within 4 days after receiving notice of an interpleader claim under rule 1 (2) the execution creditor shall give notice to the court informing him whether he admits or disputes the interpleader claim or requests the district judge to withdraw from possession of the goods or money claimed.
(2) If, within the period aforesaid, the execution creditor gives notice to the court admitting the interpleader claim or requesting the district judge to withdraw from possession of the goods or money claimed, the execution creditor shall not be liable to the district judge for any fees or expenses incurred after receipt of the notice.
Order protecting district judge
Rule 3. Where the execution creditor gives the court such a notice as is mentioned in rule 2 (2), the district judge shall withdraw from possession of the goods or money claimed and may apply to the judge, on notice to the interpleader claimant, for an order restraining the bringing of a claim against the district judge for or in respect of his having taken possession of the goods or money and on the hearing of the application the judge may make such order as may be just.
Issue of interpleader proceedings
Rule 4. (1) Where the execution creditor gives notice under rule 2 (1) disputing an interpleader claim made under rule 1 or fails, within the period mentioned in rule 2 (1), to give the notice required by that rule, the district judge shall, unless the interpleader claim is withdrawn, issue an interpleader notice to the execution creditor and the interpleader claimant.
(2) On the issue of an interpleader notice under paragraph (1) the court officer shall enter the proceedings in the records of the court, fix a day for the hearing by the judge and prepare sufficient copies of the notice for service under this rule.
(3) Subject to paragraph (4) the notice shall be served on the execution creditor and the interpleader claimant in the manner required for service of the notice of the day of hearing in accordance with Order 3, rule 6.
(4) Service shall be effected not less than 14 days before the return day.
Claim for damages
Rule 5. Where in interpleader proceedings under an execution the interpleader claimant claims from the execution creditor or the district judge, or the execution creditor claims from the district judge, damages arising or capable of arising out of the execution—
(a) the party claiming damages shall, within 8 days after service of the notice on him under rule 4(3), give notice of this claim to the court and to any other party against whom the claim is made, stating the amount and the grounds of the claim; and
(b) the party from whom damages are claimed may pay money into court in satisfaction of the claim as if the interpleader proceedings were a claim brought in accordance with CPR Part 7 by the person making the claim.
Part II— Otherwise than under Execution
Application for relief
Rule 6. (1) Where a person (in this Part of this Order called “the applicant”) is under a liability in respect of a debt or any money or goods and he is, or expects to be, sued for or in
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
393
respect of the debt, money or goods by two or more persons making adverse claims thereto (“the interpleader claimants”), he may apply to the court, in accordance with these rules, for relief by way of interpleader.
(2) The application shall be made to the court in which the claim is pending against the applicant or, if no claim is pending against him, to the court in which he might be sued.
(3) The application shall be made by filing a witness statement or affidavit showing that— (a) the applicant claims no interest in the subject-matter in dispute other than for charges or
costs; (b) the applicant does not collude with any of the interpleader claimants; and (c) the applicant is willing to pay or transfer the subject-matter into court or to dispose of it
as the court may direct, together with as many copies of the witness statement or affidavit as there are interpleader claimants.
Relief in pending claim
Rule 7. Where the applicant is a defendant in a pending claim— (a) the witness statement or affidavit and copies required by rule 6 (3) shall be filed within 14
days after service on him of the claim form; (b) the return day of the application shall be a day fixed for the pre-trial review of the claim
including the interpleader proceedings and, if a day has already been fixed for the pre-trial review or hearing of the claim, the court shall, if necessary, postpone it;
(c) the interpleader claimant, the applicant and the claimant in the claim shall be given notice of the application, which shall be prepared by the court together with sufficient copies for service;
(d) the notice to the interpleader claimant shall be served on him, together with a copy of the witness statement or affidavit filed under rule 6 (3) and of the claim form and particulars of claim in the claim, not less than 21 days before the return day in the same manner as an interpleader notice in accordance with rule 4(3);
(e) the notices to the applicant and the claimant shall be sent to them by the court and the notice to the claimant shall be accompanied by a copy of the said witness statement or affidavit.
Relief otherwise than in pending claim
Rule 8. Where the applicant is not a defendant in a pending claim— (a) the court shall enter the proceedings in the records of the court; (b) the court shall fix a day for the pre-trial review or, if the court so directs, a day for the
hearing of the proceedings and shall prepare and issue an interpleader notice, together with sufficient copies for service;
(c) the notice together with a copy of the witness statement or affidavit filed under rules 6 (3), shall be served on each of the claimants not less than 21 days before the return day in the same manner as an interpleader notice to be served under rule 4(3); and
(d) the court shall deliver or send a notice of issue to the applicant.
Payment into court etc.
Rule 9. Before or after the court officer proceeds under rule 7 or 8 the district judge may direct the applicant to bring the subject-matter of the proceedings into court, or to dispose of it in such manner as the district judge thinks fit, to abide the order of the court.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
394
Reply by interpleader claimant
Rule 10. (1) An interpleader claimant shall, within 14 days after service on him of the notice under rule 7 (c) or the interpleader notice under rule 8 (c), file—
(a) a notice that he makes no interpleader claim; or (b) particulars stating the grounds of his interpleader claim to the subject matter,
together in either case with sufficient copies for service under paragraph (2). (2) The court shall send to each of the other parties a copy of any notice or particulars filed under
paragraph (1). (3) The court may, if it thinks fit, hear the proceedings although no notice or particulars have
been filed.
Order barring interpleader claim etc.
Rule 11. (1) Where an interpleader claimant does not appear on any day fixed for a pre-trial review or the hearing of interpleader proceedings, or fails or refuses to comply with an order made in the proceedings, the court may make an order barring his interpleader claim.
(2) If, where the applicant is a defendant in a pending claim, the claimant does not appear on any day fixed for a pre-trial review or the hearing of the interpleader proceedings, the claim including the interpleader proceedings may be struck out.
(3) In any other case where a day is fixed for the hearing of interpleader proceedings, the court shall hear and determine the proceedings and give judgment finally determining the rights and claims of the parties.
(4) Where the court makes an order barring the interpleader claim of an interpleader claimant, the order shall declare the interpleader claimant, and all persons claiming under him, for ever barred from prosecuting his interpleader claim against the applicant and all persons claiming under him, but unless the interpleader claimant has filed a notice under rule 10 that he makes no interpleader claim, such an order shall not affect the rights of the interpleader claimants as between themselves.
CCR ORDER 34 PENAL AND DISCIPLINARY PROVISIONS
Issue and service of summons for offence under s.14, 92 or 124 of the Act
Rule 1. Where— (a) it is alleged that any person has committed an offence under section 14 or 92 of the Act
by assaulting an officer of the court while in the execution of his duty, or by rescuing or attempting to rescue any goods seized in execution, and the alleged offender has not been taken into custody and brought before the judge; or
(b) a complaint is made against an officer of the court under section 124 of the Act for having lost the opportunity of levying execution,
the court officer shall issue a summons, which shall be served on the alleged offender personally not less than 8 days before the return day appointed in the summons.
Committal under s.14, 92 or 118 of the Act
Rule 1A. Rule 1 (5) of Order 29 shall apply, with the necessary modifications, where an order is made under section 14, 92 or 118 of the Act committing a person to prison.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
395
Notice to show cause before or after fine under s.55 of the Act
Rule 2. Before or after imposing a fine on any person under section 55 of the Act for disobeying a witness summons or refusing to be sworn or give evidence, the judge may direct the court officer to give to that person notice that if he has any cause to show why a fine should not be or should not have been imposed on him, he may show cause in person or by witness statement or affidavit or otherwise on a day named in the notice, and the judge after considering the cause shown may make such order as he thinks fit.
Non-payment of fine
Rule 3. (1) If a fine is not paid in accordance with the order imposing it, the court officer shall forthwith report the matter to the judge.
(2) Where by an order imposing a fine, the amount of the fine is directed to be paid by instalments and default is made in the payment of any instalment, the same proceedings may be taken as if default had been made in payment of the whole of the fine.
(3) If the judge makes an order for payment of a fine to be enforced by warrant of execution, the order shall be treated as an application made to the district judge for the issue of the warrant at the time when the order was received by him.
Repayment of fine
Rule 4. If, after a fine has been paid, the person on whom it was imposed shows cause sufficient to satisfy the judge that, if it had been shown at an earlier date, he would not have imposed a fine or would have imposed a smaller fine or would not have ordered payment to be enforced, the judge may order the fine or any part thereof to be repaid.
CCR ORDER 35 ENFORCEMENT OF COUNTY COURT
JUDGMENTS OUTSIDE ENGLAND AND WALES
Part I—Enforcement outside United Kingdom
Interpretation of Part I
Rule 1. In this Part of this Order “the Act of 1933” means the Foreign Judgments (Reciprocal Enforcement) Act 1933(284), “the Act of 1982” means the Civil Jurisdiction and Judgments Act 1982(285) and expressions which are defined in those Acts have the same meaning in this Part of this Order as they have in those Acts.
Application under s.10 of the Act of 1933 for certified copy of county court judgment
Rule 2. (1) An application under section 10 of the Act of 1933 for a certified copy of a judgment of a county court may be made by filing a witness statement or affidavit, made by a solicitor of the party entitled to enforce the judgment, or by the party himself, if he is acting in person.
(284)1933 c. 13; section 10 was substituted by the Civil Jurisdiction and Judgments Act 1982 (c. 27), section 35(1), schedule 10, paragraph 3.
(285)1982 c. 27; section 12 was amended by the Civil Jurisdiction and Judgments Act 1991 (c. 12), section 3, schedule 2, paragraph 7.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
396
(2) A witness statement or affidavit by which an application under section 10 of the Act of 1933 is made must—
(a) give particulars of the proceedings in which the judgment was obtained; (b) have annexed to it evidence of service on the defendant of the claim form or other process
by which the proceedings were begun (where service was effected otherwise than through the court), copies of the statements of case, if any, and a statement of the grounds on which the judgment was based;
(c) state whether the defendant did or did not object to the jurisdiction, and, if so, on what grounds;
(d) show that the judgment is not subject to any stay of execution; (e) state that the time for appealing or applying for a re-hearing has expired, or, as the case
may be, the date on which it will expire and in either case whether notice of appeal against the judgment has been given or an application for a re-hearing has been made; and
(f) state whether interest is recoverable on the judgment or part thereof and, if so, the rate and period in respect of which it is recoverable.
(3) The certified copy of the judgment shall be a sealed copy indorsed with a certificate signed by the district judge certifying that the copy is a true copy of a judgment obtained in the county court and that it is issued in accordance with section 10 of the Act of 1933.
(4) There shall also be issued a sealed certificate signed by the district judge and having annexed to it a copy of the claim form or other process by which the proceedings were begun and stating—
(a) the manner in which the claim form or other process was served on the defendant or that the defendant has delivered to the court an admission, defence or counterclaim;
(b) what objections, if any, were made to the jurisdiction; (c) what statements of case, if any, were filed; (d) the grounds on which the judgment was based; (e) that the time for appealing or applying for a re-hearing has expired or, as the case may be,
the date on which it will expire; (f) whether notice of appeal against the judgment has been given or an application for a re-
hearing has been made; (g) whether interest is recoverable on the judgment or part thereof and, if such be the case, the
rate of interest, the date from which interest is recoverable, and the date on which interest ceases to accrue; and
(h) such other particulars as it may be necessary to give the court in the foreign country in which it is sought to obtain execution of the judgment.
Application under s.12 of the Act of 1982 for certified copy of county court judgment
Rule 3. (1) An application under section 12 of the Act of 1982 for a certified copy of a judgment of a county court may be made by filing a witness statement or affidavit made by a solicitor of the party entitled to enforce the judgment, or by the party himself, if he is acting in person.
(2) A witness statement or affidavit by which an application under section 12 of the Act of 1982 is made must—
(a) give particulars of the proceedings in which the judgment was obtained; (b) have annexed to it evidence of service on the defendant of the claim form or other process
by which the proceedings were begun (where service was effected otherwise than through the court), copies of the statements of case, if any, and a statement of the grounds on which the judgment was based together with, where appropriate, any document under which the
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
397
applicant is entitled to legal aid or assistance by way of representation for the purposes of the proceedings;
(c) state whether the defendant did or did not object to the jurisdiction and, if so, on what grounds;
(d) show that the judgment has been served in accordance with CPR Part 6 and CPR rule 40.4 and is not subject to any stay of execution;
(e) state that the time for appealing or applying for a re-hearing has expired, or, as the case may be, the date on which it will expire and in either case whether notice of appeal against the judgment has been given or an application for a re-hearing has been made; and
(f) state— (i) whether the judgment provides for the payment of a sum or sums of money;
(ii) whether interest is recoverable on the judgment or part thereof and, if such be the case, the rate of interest, the date from which interest is recoverable, and the date on which interest ceases to accrue.
(3) The certified copy of the judgment shall be a sealed copy and there shall be issued with the copy of the judgment a sealed certificate signed by the district judge and having annexed to it a copy of the claim form or other process by which the proceedings were begun.
Part II—Enforcement in other parts of the United Kingdom
Interpretation of Part II
Rule 4. In this Part of this Order— “the Act of 1982” means the Civil Jurisdiction and Judgments Act 1982(286), “money provision” means a provision in any judgment to which section 18 of the Act of 1982 applies for the payment of one or more sums of money, “non-money provision” means a provision in any judgment to which section 18 of the Act of 1982 applies for any relief or remedy not requiring payment of a sum of money.
Application for certificate of money provision
Rule 5. (1) A certificate in respect of any money provision contained in a judgment of the county court may be obtained by filing a witness statement or affidavit made by the solicitor of the party entitled to enforce the judgment, or by the party himself if he is acting in person, together with a form of certificate.
(2) A witness statement or affidavit by which an application under paragraph (1) is made must— (a) give particulars of the judgment, stating the rate of payment, if any, specified under the
money provisions contained in the judgment, the sum or aggregate of sums (including any costs or expenses) remaining unsatisfied, the rate of interest, if any, applicable and the date or time from which any such interest began to accrue;
(b) verify that the time for appealing against the judgment or for applying for a re-hearing has expired, or that any appeal or re-hearing has been finally disposed of and that enforcement of the judgment is not stayed or suspended; and
(c) state to the best of the information or belief of the witness the usual or last known address of the party entitled to enforce the judgment and of the party liable to execution on it.
(286)1982 c. 27.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
398
(3) The court officer shall enter on the certificate— (a) the number of the proceedings; (b) the amount remaining due under the judgment; (c) the rate of interest payable on the judgment debt, and the date or time from which any
such interest began to accrue; (d) a note of the costs, if any, allowed for obtaining the certificate; and (e) the date on which the certificate is issued.
Application for certified copy of judgment containing non-money provision
Rule 6. (1) A certified copy of a judgment of a county court which contains any non-money provision may be obtained by filing a witness statement or affidavit made by the solicitor of the party entitled to enforce the judgment, or by the party himself, if he is acting in person.
(2) The requirements in paragraph (2) of rule 5 shall apply with the necessary modifications to a witness statement or affidavit made in an application under paragraph (1) of this rule.
(3) The certified copy of a judgment shall be a sealed copy to which shall be annexed a certificate signed by the court officer and stating that the conditions specified in paragraph (3)(a) and (b) of Schedule 7 to the Act of 1982 are satisfied in relation to the judgment.
CCR ORDER 37 REHEARING, SETTING ASIDE AND APPEAL FROM DISTRICT JUDGE
Rehearing
Rule 1. (1) In any proceedings tried without a jury the judge shall have power on application to order a rehearing where no error of the court at the hearing is alleged.
(2) Unless the court otherwise orders, any application under paragraph (1) shall be made to the judge by whom the proceedings were tried.
(3) A rehearing may be ordered on any question without interfering with the finding or decision on any other question.
(4) Where the proceedings were tried by the district judge, the powers conferred on the judge by paragraphs (1) and (3) shall be exercisable by the district judge and paragraph (2) shall not apply.
(5) Any application for a rehearing under this rule shall be made on notice stating the grounds of the application and the notice shall be served on the opposite party not more than 14 days after the day of the trial and not less than 7 days before the day fixed for the hearing of the application.
(6) On receipt of the notice, the court officer shall, unless the court otherwise orders, retain any money in court until the application has been heard.
Appeal from district judge
Rule 6. (1) Any party affected by a judgment or final order of the district judge may, except where he has consented to the terms of the order, appeal from the judgment or order to the judge, who may, upon such terms as he thinks fit—
(a) set aside or vary the judgment or order or any part of it; (b) give any other judgment or make any other order in substitution for the judgment or order
appealed from;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
399
(c) remit the claim or any question in the claim to the district judge for rehearing or further consideration; or
(d) order a new trial to take place before himself or another judge of the court on a day to be fixed.
(2) The appeal shall be made on notice, which shall state the grounds of the appeal and be served within 14 days after the day on which judgment or order appealed from was given or made.
Imposition of terms and stay of execution
Rule 8. (1) An application to the judge or district judge under any of the foregoing rules may be granted on such terms as he thinks reasonable.
(2) Notice of any such application shall not of itself operate as a stay of execution on the judgment or order to which it relates but the court may order a stay of execution pending the hearing of the application or any rehearing or new trial ordered on the application.
(3) If a judgment or order is set aside under any of the foregoing rules, any execution issued on the judgment or order shall cease to have effect unless the court otherwise orders.
CCR ORDER 38 COSTS
Fixed costs
Rule 18. (1) Appendix B shall effect for the purpose of showing the total amount which, in the several cases to which Appendix B applies, shall be allowed to the solicitor for the claimant as fixed costs without assessment (whether by the summary or the detailed procedure), unless the court otherwise orders.
(2) In a claim to which Appendix B or CPR Part 45 does not apply no amount shall be entered on the claim form for the charges of the claimant’s solicitor, but the words “to be assessed” shall be inserted.
APPENDIX B PART I
Claims for the Recovery of Property, Applications to Enforce an Award
Directions
1. The Tables in this Part of this Appendix show the amount to be entered on the claim form or application in respect of solicitors' charges—
(c) in a claim for the recovery of property, including land, with or without a claim for a sum of money (other than a claim to which CPR Part 45 applies), for the purpose of Part II of this Appendix or of fixing the amount which the plaintiff may receive in respect of solicitors' charges without assessment whether by the detailed or summary procedure in the event of the defendant giving up possession and paying the amount claimed, if any, and costs;
(e) in proceedings for the enforcement of a tribunal or other award, for the purposes only of Order 25, rule 12.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
400
2. In addition to the amount entered in accordance with the relevant Table the appropriate court fees shall be entered on the application.
3. In the Tables the expression “claim” means— (a) the sum of money claimed, or (b) in relation to a claim for the recovery of land (with or without a claim for a sum of money),
a sum exceeding £600 but not exceeding £2,000; (c) in relation to a claim for the recovery of property other than money or land, the value of
the property claimed or in the case of goods supplied under a hire purchase agreement, the unpaid balance of the total price.
4. The Tables do not apply where the application or the claim form is to be served out of England and Wales or where service by an alternative method is ordered.
Tables of Fixed Costs
TABLE I
Where claim exceeds £25 but does not exceed £250 Amount of charges £
(a) (a) Where service is not by solicitor 30.75
(b) (b) Where service is by solicitor 35.00
TABLE II
Where claim exceeds £250 but does not exceed £600 Amount of charges £
(a) (a) Where service is not by solicitor 41.00
(b) (b) Where service is by solicitor 48.50
TABLE III
Where claim exceeds £600 but does not exceed £2,000 Amount of charges £
(a) (a) Where service is not by solicitor 69.50
(b) (b) Where service is by solicitor 77.00
TABLE IV
Where claim exceeds £2,000 Amount of charges £
(a) (a) Where service is not by solicitor 75.50
(b) (b) Where service is by solicitor 82.00
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
401
Part II Judgments
Directions
Where an amount in respect of solicitors' charges has been entered on the claim form under Part I of this Appendix and judgment is given in the circumstances mentioned in paragraph (d) in column 1 of the following Table, the amount to be included in the judgment in respect of the solicitors' charges shall, be the amount entered on the application or the claim form together with the amount shown in column 2 of the Table under the sum of money by reference to which the amount entered on the application or the claim form was fixed. Where judgment is given for a sum less than the amount claimed or for the delivery of goods of which the value or the balance of the total price is a sum less than the amount claimed, the foregoing paragraph shall, unless the court otherwise directs, have effect as if the amount entered on the application or the claim form had been fixed by reference to that sum.
Fixed Costs on Judgments
Column 1 Column 2 Sum of money A exceeding £25 but not exceeding £600
B exceeding £600 but not exceeding £3000
C exceeding £3000
£ £ £ (d) (d) Where
judgment is given in a fixed date action for—
(i) delivery of goods where goods are not subject to a regulated agreement; or
(ii) possession of land suspended on payment of arrears of rent, whether claimed or
38.50 57.25 70.75
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
402
Column 1 Column 2 Sum of money A exceeding £25 but not exceeding £600
B exceeding £600 but not exceeding £3000
C exceeding £3000
£ £ £ not, in addition to current rent, and the defendant has neither delivered a defence, admission or counterclaim, nor otherwise denied liability
(Delivery of goods claims subject to a regulated agreement are dealt with by CPR Part 45)
PART III Miscellaneous Proceedings
The following Table shows the amount to be allowed in respect of solicitors' charges in the circumstances mentioned. The appropriate court fee shall be allowed in addition.
Amount to be allowed £ 3. For filing a request for the issue of a
warrant of execution for a sum exceeding £25 £2.25
4. For service of any document required to be served personally (other than an application for an attachment of earnings order or a judgment summons unless allowed under Order 27, rule 9(1)(a), or Order 28, rule 10(2)(a)(i)), including copy and preparation of certificate of service
£8.50
5. For service by an alternative method, including attendances, making appointments to serve claim forms, preparing and attending to swear and file affidavits and to obtain order, and the fees paid for oaths
£25.00
6. For each attendance on the hearing of an application for an attachment of earnings order
£8.50
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
403
Amount to be allowed £ or a judgment summons where costs are allowed under Order 27, rule 9, or Order 28, rule 10
7. For the costs of the judgment creditor when allowed in garnishee proceedings or an application under Order 30, rule 12
(a) where the money recovered is less than £70.00
one half of the amount recovered
(b) (b) where the money recovered is not less than £70.00
£46.50
8. For the costs of the judgment creditor when allowed on an application for a charging order
£71.00
9. For obtaining a certificate of judgment where costs allowed under Order 35, rule 5(3)(d)
£8.00
10. Where an order for possession is made under rule 6 or rule 6A of Order 49 without the attendance of the claimant, for preparing and filing the application, the documents attached to the application and the request for possession
£79.50
11. On examination of a witness under CCR Order 25, rule 3 where any responsible representative of the solicitor attends, for each half-hour or part thereof
£15.00
CCR ORDER 39 ADMINISTRATION ORDERS
Exercise of powers by district judge
Rule 1. Any powers conferred on the court by Part VI of the Act, section 4 of the Attachment of Earnings Act 1971(287) or this Order may be exercised by the district judge or, in the circumstances mentioned in this Order, by the court officer.
Request and list of creditors
Rule 2. (1) A debtor who desires to obtain an administration order under Part VI of the Act shall file a request in that behalf in the court for the district in which he resides or carries on business.
(2) Where on his examination under Order 25, rule 3, or otherwise, a debtor furnishes to the court on oath a list of his creditors and the amounts which he owes to them respectively and sufficient particulars of his resources and needs, the court may proceed as if the debtor had filed a request under paragraph (1).
(3) Where a debtor is ordered to furnish a list under section 4 (1)(b) of the said Act of 1971, then, unless otherwise directed, the list shall be filed within 14 days after the making of the order.
(287)1971 c. 32; section 4 was amended by the Insolvency Act 1976 (c. 60), section 13(2); and by the County Courts Act 1984 (c. 28), section 148(1), schedule 2, Part V, paragraph 40.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
404
Verification on oath
Rule 3. The statements in the request mentioned in rule 2 (1) and the list mentioned in rule 2 (3) shall be verified by the debtor on oath.
Orders made by the court officer
Rule 5. (1) The question whether an administration order should be made, and the terms of such an order, may be decided by the court officer in accordance with the provisions of this rule.
(2) On the filing of a request or list under rule 2, the court officer may, if he considers that the debtor’s means are sufficient to discharge in full and within a reasonable period the total amount of the debts included in the list, determine the amount and frequency of the payments to be made under such an order (“the proposed rate”) and—
(a) notify the debtor of the proposed rate requiring him to give written reasons for any objection he may have to the proposed rate within 14 days of service of notification upon him;
(b) send to each creditor mentioned in the list provided by the debtor a copy of the debtor’s request or of the list together with the proposed rate;
(c) require any such creditor to give written reasons for any objection he may have to the making of an administration order within 14 days of service of the documents mentioned in sub-paragraph (b) upon him.
Objections under sub-paragraph (c) may be to the making of an order, to the proposed rate or to the inclusion of a particular debt in the order.
(3) Where no objection under paragraph (2)(a) or (c) is received within the time stated, the court officer may make an administration order providing for payment in full of the total amount of the debts included in the list.
(4) Where the debtor or a creditor notifies the court of any objection within the time stated, the court officer shall fix a day for a hearing at which the district judge will decide whether an administration order should be made and the court officer shall give not less than 14 days' notice of the day so fixed to the debtor and to each creditor mentioned in the list provided by the debtor.
(5) Where the court officer is unable to fix a rate under paragraph (2) (whether because he considers that the debtor’s means are insufficient or otherwise), he shall refer the request to the district judge.
(6) Where the district judge considers that he is able to do so without the attendance of the parties, he may fix the proposed rate providing for payment of the debts included in the list in full or to such extent and within such a period as appears practicable in the circumstances of the case.
(7) Where the proposed rate is fixed under paragraph (6), paragraphs (2) to (4) shall apply with the necessary modifications as if the rate had been fixed by the court officer.
(8) Where the district judge does not fix the proposed rate under paragraph (6), he shall direct the court officer to fix a day for a hearing at which the district judge will decide whether an administration order should be made and the court officer shall give not less than 14 days' notice of the day so fixed to the debtor and to each creditor mentioned in the list provided by the debtor.
(9) Where an administration order is made under paragraph (3), the court officer may exercise the power of the court under section 5 of the Attachment of Earnings Act 1971 to make an attachment of earnings order to secure the payments required by the administration order.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
405
Notice of objection by creditor
Rule 6. (1) Any creditor to whom notice has been given under rule 5 (8) and who objects to any debt included in the list furnished by the debtor shall, not less than 7 days before the day of hearing, give notice of his objection, stating the grounds thereof, to the court officer, to the debtor and to the creditor to whose debt he objects.
(2) Except with the permission of the court, no creditor may object to a debt unless he has given notice of his objection under paragraph (1).
Procedure on day of hearing
Rule 7. On the day of the hearing— (a) any creditor, whether or not he is mentioned in the list furnished by the debtor, may attend
and prove his debt or, subject to rule 6, object to any debt included in that list; (b) every debt included in that list shall be taken to be proved unless it is objected to by a
creditor or disallowed by the court or required by the court to be supported by evidence; (c) any creditor whose debt is required by the court to be supported by evidence shall prove
his debt; (d) the court may adjourn proof of any debt and, if it does so, may either adjourn consideration
of the question whether an administration order should be made or proceed to determine the question, in which case, if an administration order is made, the debt, when proved, shall be added to the debts scheduled to the order;
(e) any creditor whose debt is admitted or proved, and, with the permission of the court, any creditor the proof of whose debt has been adjourned, shall be entitled to be heard and to adduce evidence on the question whether an administration order should be made and, if so, in what terms.
Direction for order to be subject to review
Rule 8. (1) The court may, on making an administration order or at any subsequent time, direct that the order shall be subject to review at such time or at such intervals as the court may specify.
(2) Where the court has directed that an administration order shall be subject to review, the court officer shall give to the debtor and to every creditor who appeared when the order was made not less than 7 days' notice of any day appointed for such a review.
(3) Nothing in this rule shall require the court officer to fix a day for a review under rule 13A.
Service of order
Rule 9. Where an administration order is made, the court officer shall send a copy to— (a) the debtor; (b) every creditor whose name was included in the list furnished by the debtor; (c) any other creditor who has proved his debt; and (d) every other court in which, to the knowledge of the district judge, judgment has been
obtained against the debtor or proceedings are pending in respect of any debt scheduled to the order.
Subsequent objection by creditor
Rule 10. (1) After an administration order has been made, a creditor who has not received notice under rule 5 and who wishes to object to a debt scheduled to the order, or to the manner in which
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
406
payment is directed to be made by instalments, shall give notice to the court officer of his objection and of the grounds thereof.
(2) On receipt of such notice the court shall consider the objection and may— (a) allow it; (b) dismiss it; or (c) adjourn it for hearing on notice being given to such persons and on such terms as to security
for costs or otherwise as the court thinks fit. (3) Without prejudice to the generality of paragraph (2), the court may dismiss an objection if
it is not satisfied that the creditor gave notice of it within a reasonable time of his becoming aware of the administration order.
Subsequent proof by creditor
Rule 11. (1) Any creditor whose debt is not scheduled to an administration order, and any person who after the date of the order became a creditor of the debtor, shall, if he wishes to prove his debt, send particulars of his claim to the court officer, who shall give notice of it to the debtor and to every creditor whose debt is so scheduled.
(2) If neither the debtor nor any creditor gives notice to the court officer, within 7 days after receipt of notice under paragraph (1), that he objects to the claim, then, unless it is required by the court to be supported by evidence, the claim shall be taken to be proved.
(3) If the debtor or a creditor gives notice of objection within the said period of 7 days or the court requires the claim to be supported by evidence, the court officer shall fix a day for consideration of the claim and give notice of it to the debtor, the creditor by whom the claim was made and the creditor, if any, making the objection, and on the hearing the court may either disallow the claim or allow it in whole or in part.
(4) If a claim is taken to be proved under paragraph (2) or allowed under paragraph (3), the debt shall be added to the schedule to the order and a copy of the order shall then be sent to the creditor by whom the claim was made.
Permission to present bankruptcy petition
Rule 12. An application by a creditor under section 112 (4) of the Act(288) for permission to present or join in a bankruptcy petition shall be made on notice to the debtor in accordance with CPR Part 23, but the court may, if it thinks fit, order that notice be given to any other creditor whose debt is scheduled to the administration order.
Conduct of order
Rule 13. (1) The court manager or such other officer of the court as the court making an administration order shall from time to time appoint shall have the conduct of the order and shall take all proper steps to enforce the order (including exercising the power of the court under section 5 of the Attachment of Earnings Act 1971 to make an attachment of earnings order to secure payments required by the administration order) or to bring to the attention of the court any matter which may make it desirable to review the order.
(2) Without prejudice to section 115 of the Act, any creditor whose debt is scheduled to the order may, with the permission of the court, take proceedings to enforce the order.
(3) The debtor or, with the permission of the court, any such creditor may apply to the court to review the order.
(288)Section 112 was amended by the Insolvency Act 1985 (c. 65), section 220(2).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
407
(4) When on a matter being brought to its attention under paragraph (1) the court so directs or the debtor or a creditor applies for the review of an administration order, rule 8 (2) shall apply as if the order were subject to review under that rule.
(5) Nothing in this rule shall require the court officer to fix a day for a review under rule 13A.
Review by court officer in default of payment
Rule 13A. (1) Where it appears that the debtor is failing to make payments in accordance with the order, the court officer shall (either of his own initiative or on the application of a creditor whose debt is scheduled to the administration order) send a notice to the debtor—
(a) informing him of the amounts which are outstanding; and (b) requiring him (within 14 days of service of the notice upon him) to
(i) make the payments as required by the order; or (ii) explain his reasons for failing to make the payments; and
(iii) make a proposal for payment of the amounts outstanding, or (iv) make a request to vary the order.
(2) If the debtor does not comply with paragraph (1)(b) within the time stated, the court officer shall revoke the administration order.
(3) The court officer shall refer a notice given by a debtor under paragraph (1)(b)(ii), (iii) or (iv) to the district judge who may—
(a) without requiring the attendance of the parties— (i) revoke the administration order or vary it so as to provide for payment of the debts
included in the order in full or to such extent and within such a period as appears practicable in the circumstances of the case; or
(ii) suspend the operation of the administration order for such time and on such terms as he thinks fit; or
(b) require the court officer to fix a day for the review of the administration order and to give to the debtor and to every creditor whose debt is scheduled to the administration order not less than 8 days' notice of the day so fixed.
(4) Any party affected by an order made under paragraph (2) or (3)(a) may, within 14 days of service of the order on him and giving his reasons, apply on notice for the district judge to consider the matter afresh and the court officer shall fix a day for the hearing of the application before the district judge and give to the debtor and to every creditor whose debt is scheduled to the administration order not less than 8 days' notice of the day so fixed.
(5) On hearing an application under paragraph (4), the district judge may confirm the order or set it aside and make such new order as he thinks fit and the order so made shall be entered in the records of the court.
Review of order
Rule 14. (1) On the review of an administration order the court may— (a) if satisfied that the debtor is unable from any cause to pay any instalment due under the
order, suspend the operation of the order for such time and on such terms as it thinks fit; (b) if satisfied that there has been a material change in any relevant circumstances since the
order was made, vary any provision of the order made by virtue of section 112 (6) of the Act;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
408
(c) if satisfied that the debtor has failed without reasonable cause to comply with any provision of the order or that it is otherwise just and expedient to do so, revoke the order, either forthwith or on failure to comply with any condition specified by the court; or
(d) make an attachment of earnings order to secure the payments required by the administration order or vary or discharge any such attachment of earnings order already made.
(2) The court officer shall send a copy of any order varying or revoking an administration order to the debtor, to every creditor whose debt is scheduled to the administration order and, if the administration order is revoked, to any other court to which a copy of the administration order was sent pursuant to rule 9.
Discharge of attachment of earnings order
Rule 16. On the revocation of an administration order any attachment of earnings order made to secure the payments required by the administration order shall be discharged.
Declaration of dividends
Rule 17. (1) The officer having the conduct of an administration order shall from time to time declare dividends and distribute them among the creditors entitled to them.
(2) When a dividend is declared, notice shall be sent by the officer to each of the creditors.
Creditors to rank equally
Rule 18. All creditors scheduled under section 113 (d) of the Act(289) before an administration order is superseded under section 117 (2) of the Act shall rank equally in proportion to the amount of their debts subject to the priority given by the said paragraph (d) to those scheduled as having been creditors before the date of the order, but no payment made to any creditor by way of dividend or otherwise shall be disturbed by reason of any subsequent proof by any creditor under the said paragraph (d).
Change of debtor’s address
Rule 19. (1) A debtor who changes his residence shall forthwith inform the court of his new address.
(2) Where the debtor becomes resident in the district of another court, the court in which the administration order is being conducted may transfer the proceedings to that other court.
CCR ORDER 42 PROCEEDINGS BY AND AGAINST THE CROWN
Application and interpretation
Rule 1. (1) These rules apply to any proceedings, so far as they are civil proceedings to which the Crown is a party, subject to the following rules of this Order.
(2) Except where the context otherwise requires, references in these rules to a claim for the recovery of land or other property shall be construed as including references to proceedings against
(289)Section 113 was amended by the Administration of Justice Act 1985 (c. 61), section 67(2), schedule 8, Part II.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
409
the Crown for an order declaring that the claimant is entitled as against the Crown to the land or property or to the possession of it.
(3) In this Order— “the Act of 1947” means the Crown Proceedings Act 1947(290); “civil proceedings by the Crown” and “civil proceedings against the Crown” and “civil proceedings by or against the Crown” have the same respective meanings as in Part II of the Act of 1947 and do not include any of the proceedings specified in section 23 (3) of that Act; “civil proceedings to which the Crown is a party” has the same meaning as it has for the purposes of Part IV of the Act of 1947 by virtue of section 38 (4) of that Act.
Particulars of claim in claim against the Crown
Rule 4. The particulars of claim shall, in the case of civil proceedings against the Crown, include a statement of the circumstances in which the Crown’s liability is said to have arisen and as to the government department and officers of the Crown concerned.
Subsequent procedure in claim
Rule 5. (1) If in a claim against the Crown the defendant considers that the particulars of claim do not contain a sufficient statement as required by rule 4, he may, before the time for delivering a defence has expired, file two copies of a demand for further information as specified in the demand and thereupon the court officer shall serve one copy on the claimant.
(2) Where the defendant files a demand under paragraph (1), the time for delivering a defence shall not expire until 4 days after the defendant has given notice to the court and the claimant that the defendant is satisfied with the information supplied in compliance with the demand or 4 days after the court has, on the application of the claimant of which not less than 7 days' notice has been given to the defendant, decided that no further information as to the matters referred to in rule 4 is reasonably required.
(3) Except with the permission of the court, no default judgment shall be entered under CPR Part 12 in a claim against the Crown.
(4) An application for permission under paragraph (3) shall be made on not less than 7 days' notice to the defendant.
(5) No application against the Crown shall be made under CPR Part 24 (summary judgment).
Subsequent procedure in fixed date claim
Rule 6. (1) In the case of a fixed date claim against the Crown, on the filing of the claim form the court shall—
(a) enter a plaint in the records of the court and deliver to the claimant a notice of issue omitting any reference to a return day;
(b) serve on the defendant a copy of the particulars of claim if they are filed with the claim form and the notice of issue and of the effect of paragraphs (3) and (5).
(2) Upon the service of the notice mentioned in paragraph (1)(b) all further proceedings in the claim shall be stayed except as provided in this rule.
(3) If the defendant considers that the particulars of claim do not contain a sufficient statement as required by rule 4, he may, within 21 days after service on him of the particulars of claim, file
(290)1947 c. 44.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
410
in the court office two copies of a demand for further information as specified in the demand and thereupon the court shall serve one copy on the claimant.
(4) If within the said period the defendant does not file two copies of such a demand, then, subject to paragraph (5), the stay of proceedings provided for by paragraph (2) shall cease to have effect at the end of that period.
(5) If within the said period the defendant files a statement that no such demand will be made, the stay of proceedings provided for by paragraph (2) shall cease to have effect forthwith.
(6) If within the said period the defendant files two copies of such a demand, the stay of proceedings provided for by paragraph (2) shall cease to have effect when the defendant gives notice to the court and the claimant that the defendant is satisfied with the information supplied in compliance with the demand or when the court decides, on the application of the claimant of which not less than 7 days' notice has been given to the defendant, that no further information as to the matters referred to in rule 4, is reasonably required.
(7) When the stay of proceedings provided for by paragraph (2) ceases to have effect, the court shall fix a return day and give notice of it to the claimant and shall proceed to issue the claim form.
Service on the Crown
Rule 7. (1) RSC Order 11 and any other provision of these rules relating to service of process out of England and Wales shall apply in relation to civil proceedings by the Crown but shall not apply in relation to civil proceedings against the Crown.
(2) Personal service of any document which is to be served on the Crown for the purpose of or in connection with civil proceedings by or against the Crown shall not be requisite.
(3) Any such document may be served on the Crown— (a) by leaving the document at the office of the person to be served in accordance with
section 18 of the Act of 1947, or any agent whom he has nominated for the purpose, but in either case with a member of the staff of that person or agent; or
(b) by posting it in a prepaid envelope addressed to the person to be served in accordance with the said section 18 or to any such agent as aforesaid.
Special provisions regarding orders made by the Court of its own initiative against the Crown
Rule 8. (2) No order shall be made against the Crown by the court of its own initiative— (a) (i) requiring the Crown to file or serve any statement of case or give any particulars
which the court thinks necessary for defining the issues in the proceedings; and (ii) at the same or any subsequent time directing that the claim be dismissed or the
defendant be debarred from defending altogether or that anything in any statement of case of which particulars have been ordered be struck out unless the order is obeyed;
(b) ordering one or more questions or issues to be tried before the others; or (c) at a hearing other than the trial.
Counterclaim in proceedings by or against the Crown
Rule 9. (1) In proceedings by the Crown for the recovery of taxes, duties or penalties the defendant shall not be entitled to avail himself of any set-off or counterclaim and accordingly the claim form to be served on the defendant and the forms for defending the claim, admitting the claim and acknowledging service, to accompany the claim form shall omit any reference to a counterclaim.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
411
(2) In proceedings of any other nature by the Crown the defendant shall not be entitled to avail himself of any set-off or counterclaim arising out of a right or claim to repayment in respect of any taxes, duties or penalties.
(3) In any proceedings by the Crown the defendant shall not be entitled, and in any proceedings against the Crown the Crown shall not be entitled, without the permission of the court to be obtained on application of which not less than 7 days' notice has been given to the claimant, to make any counterclaim or claim in his statements of case to be entitled to any set-off if—
(a) the Crown sues or is sued in the name of a Government department and the subject-matter of the set-off or counterclaim does not relate to that department; or
(b) the Crown sues or is sued in the name of the Attorney-General.
Adjustment of liability under judgment for taxes
Rule 10. Where the Crown has obtained a judgment for taxes but subsequently the tax liability is reduced, whether by reason of an appeal against an assessment or otherwise, and the Crown has given notice of the reduction to the court and to the debtor, the sum remaining unsatisfied under the judgment shall be reduced accordingly, but the amount of the reduction shall not rank as a payment under the judgment.
Part 20 claim against the Crown where the Crown is not already a party
Rule 11. (1) A Part 20 claim for service on the Crown where the Crown is not already a party shall not be issued without the permission of the court to be obtained on application in accordance with CPR Part 23
(1A) An application notice under paragraph (1) must be served on the Crown and the claimant at least 7 days before the hearing.
(2) Permission shall not be granted under paragraph (1) unless the court is satisfied that the Crown is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the departments and officers of the Crown concerned.
Disclosure against the Crown
Rule 12. (2) Where in any proceedings an order of the court directs that a list of documents made in answer to an order for disclosure against the Crown shall be verified by witness statement or affidavit, the witness statement or affidavit shall be made by such officer of the Crown as the court may direct.
(3) The court may direct which officer of the Crown shall make the disclosure statement required by CPR rule 31.10(5).
Execution and satisfaction of orders against the Crown
Rule 13. (1) Nothing in Orders 25 to 32 shall apply in respect of any order against the Crown. (2) A certificate issued under section 25 (1) of the Act of 1947 shall be in the form used under
Order 22, rule 8, with such variations as the circumstances of the case may require.
Attachment of debts etc.
Rule 14. (1) No order for the attachment of a debt under Order 30 or for the appointment of a receiver under RSC Order 30 shall be made or have effect in respect of any money due or accruing due, or alleged to be due or accruing due, from the Crown.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
412
(2) Where such an order could have been obtained in a county court if the money had been due or accruing due from a subject, an application may be made to that county court in accordance with CPR Part 23 for an order under section 27 of the Act of 1947(291) restraining the person to whom the money is payable by the Crown from receiving the money and directing payment to the applicant or to the receiver.
(3) The application shall be supported by a witness statement or affidavit setting out the facts giving rise to it and in particular identifying the particular debt from the Crown in respect of which it is made.
(4) Notice of the application together with a copy of the witness statement or affidavit shall be served on the Crown and, unless the court otherwise directs, on the person to be restrained or his solicitor at least 7 days before the day fixed for the hearing.
(5) Order 30, rules 7 to 9, shall apply, with the necessary modifications, in relation to an application under the said section 27 as they apply in relation to an application for an order under Order 30, rule 1, except that the court shall not have power to issue execution against the Crown.
CCR ORDER 43 THE LANDLORD AND TENANT ACTS 1927, 1954, 1985 AND 1987
Interpretation
Rule 1. (1) In this order “the Act of 1927” means the Landlord and Tenant Act 1927(292), “the Act of 1954” means the Landlord and Tenant Act 1954(293), “the Act of 1985” means the Landlord and Tenant Act 1985 and “the Act of 1987” means the Landlord and Tenant Act 1987.
(2) In relation to any proceedings under the Act of 1954 any reference in this Order to a landlord shall, if the interest of the landlord in question is subject to a mortgage and the mortgagee is in possession or a receiver appointed by the mortgagee or by the court is in receipt of the rents and profits, be construed as a reference to the mortgagee.
Commencement of proceedings and answer
Rule 2. (1) Proceedings in a county court under the Act of 1927 or of 1954, or of 1985 or of 1987 shall be commenced by claim form and the respondent shall file an answer.
(2) The court shall fix a return day which, unless it otherwise directs, shall be a day fixed for the case management hearing of the proceedings.
Claim for compensation in respect of improvement
Rule 3. (1) A claim under section 1 of the Act of 1927 for compensation in respect of any improvement, or a claim by a mesne landlord under section 8 (1) of that Act, shall be in writing, signed by the claimant, his solicitor or agent, and shall contain—
(a) a statement of the name and address of the claimant and of the landlord against whom the claim is made;
(b) a description of the holding in respect of which the claim arises and of the trade or business carried on there;
(291)1947 c. 44; section 27(1) was amended by the Supreme Court Act 1981 (c. 54), section 139(1) and schedule 7. (292)1927 c. 36; section 1was amended by the Landlord and Tenant Act 1954 (c. 56), section 47(5); and section 8 by the 1954
Act, sections 45, 68(1) and schedule 7. (293)1954 c. 56.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
413
(c) a concise statement of the nature of the claim; (d) particulars of the improvement including the date when it was completed and the cost of
it; and (e) a statement of the amount claimed.
(2) Where any document relating to any proposed improvement, or to any claim, is sent to or served on a mesne landlord in pursuance of Part I of the Act of 1927, he shall forthwith serve on his immediate landlord a copy of the document, together with a notice in writing stating the date when the document was received by the mesne landlord, and if the immediate landlord is himself a mesne landlord, he shall, forthwith on receipt of the documents aforesaid, serve on his immediate landlord a similar copy and notice and so on from landlord to landlord.
(3) Any document required to be served under paragraph (2) shall be served in the manner prescribed by section 23 of the Act of 1927.
Proceedings under Part I of the Act of 1927
Rule 4. (1) Subject to paragraph (2), the claim form by which proceedings under Part I of the Act of 1927 are commenced shall state—
(a) the nature of the claim or application or matter to be determined; (b) the holding in respect of which the claim or application is made, its rateable value and the
trade or business carried on there; (c) particulars of the improvement or proposed improvement to which the claim or application
relates; and (d) if the claim is for payment of compensation, the amount claimed.
(2) In any case to which rule 3 (1) relates the particulars required by paragraph (1) may, so far as they are contained in a claim made in accordance with that rule, be given by appending a copy of the claim to the claim form.
(3) The applicant’s immediate landlord shall be made respondent to the application. (4) Any certificate of the court under section 3 of the Act of 1927 that an improvement is a proper
improvement or has been duly executed shall be embodied in an order.
Proceedings under Part I of the Act of 1954
Rule 5. (1) A respondent to an application under section 7 of the Act of 1954(294) who resists any of the applicant’s proposals as to the terms of a statutory tenancy shall state in his answer the terms which he proposes in their place.
(2) The particulars in an application under section 13 of the Act of 1954 for the recovery of possession shall state, in addition to the matters set out in Order 6, rule 3—
(a) the date and terms of the lease under which the tenant holds or has held the property; (b) the date of service upon the tenant of the landlord’s notice to resume possession and the
date of termination specified in the notice; (c) where the tenant has notified the landlord that he is not willing to give up possession, the
date of the notification; and (d) where the claimant is not both the freeholder of the property comprised in the tenancy
and the immediate landlord of the defendant, details of the interest constituting him the landlord for the purpose of proceedings under Part I of the Act of 1954.
(294)Section 7 was amended by the Leasehold Reform Act 1967 (c. 88), section 39(2), schedule 5, paragraph 3(1)(b).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
414
(3) Where an order has been made under paragraph 1 of the Second Schedule to the Act of 1954 for the reduction of rent of any premises on the ground of failure by the landlord to do initial repairs, and it is subsequently agreed between the landlord and the tenant that the repairs to which the order relates have been carried out, the landlord shall file a copy of the agreement, and a note thereof shall be entered in the records of the court.
(4) Where the court makes an order for the recovery of possession of the property in proceedings to which paragraph 9 of the Fifth Schedule to the Act of 1954 applies, the claimant shall, if the occupying tenant is not a party to the proceedings, forthwith notify him of the terms of the order and inform him of his rights to obtain relief under sub-paragraph (2) of that paragraph.
(5) If a copy of a notice under section 16 (2) of the Act of 1954 or paragraph 9 (2) or 10 (2) of the Fifth Schedule to that Act is lodged in court, a note of the lodgment shall be entered in the records of the court.
Application for new tenancy under section 24 of the Act of 1954
Rule 6. (1) An application under section 24 of the Act of 1954(295) for a new tenancy shall state—
(a) the premises to which the application relates, their rateable value and the business carried on there;
(b) particulars of the applicant’s current tenancy of the premises and of every notice or request given or made in respect of that tenancy under section 25 or 26 of that Act;
(c) the applicant’s proposals as to the terms of the new tenancy applied for, including, in particular, terms as to the duration thereof and as to the rent payable thereunder;
(d) the name and address of any person other than the respondent who, to the knowledge of the applicant, has an interest in reversion in the premises expectant (whether immediately or in not more than 14 years) on the termination of the applicant’s current tenancy; and
(e) the name and address of any person having an interest in the premises other than a freehold interest or tenancy who, to the knowledge of the applicant, is likely to be affected by the grant of a new tenancy.
(2) The person who, in relation to the applicant’s current tenancy, is the landlord as defined by section 44 of the Act of 1954(296) shall be made respondent to the application.
(3) A claim form under this rule must be served within 2 months after the date of issue whether served within or out of the jurisdiction and CPR rule 7.5(2) and 7.5(3) will not apply
Answer to application for new tenancy under section 24 of the Act of 1954
Rule 7. Every answer by a respondent to an application to which rule 6 relates shall state— (a) whether or not the respondent opposes the grant of a new tenancy and, if so, on what
grounds; (b) whether or not, if a new tenancy is granted, the respondent objects to any of the terms
proposed by the applicant and, if so, the terms to which he objects and the terms which he proposes in so far as they differ from those proposed by the applicant;
(c) whether the respondent is a tenant under a lease having less than 14 years unexpired at the date of the termination of the applicant’s current tenancy and, if he is, the name and address of any person who, to the knowledge of the respondent, has an interest in reversion
(295)Section 24 was amended by the Law of Property Act 1969 (c. 59), sections 3(2) and 4(1). (296)Section 44 was amended by the Law of Property Act 1969 (c. 59), section 14(1).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
415
in the premises expectant (whether immediately or in not more than 14 years from the said date) on the termination of the respondent’s tenancy;
(d) the name and address of any person having an interest in the premises other than a freehold interest or tenancy who is likely to be affected by the grant of a new tenancy; and
(e) if the applicant’s current tenancy is one to which section 32 (2) of the Act of 1954 applies, whether the respondent requires that any new tenancy ordered to be granted shall be a tenancy of the whole of the property comprised in the applicant’s current tenancy.
Order dismissing application under section 24 which is successfully opposed
Rule 8. Where the court hearing an application under section 24 of the Act of 1954 is precluded by section 31 of that Act from ordering the grant of a new tenancy by reason of any of the grounds specified in section 30 (1) of that Act, the order dismissing the application shall state all the grounds by reason of which the court is so precluded.
Other applications under Part II of the Act of 1954
Rule 9. An application for an order under section 31 (2)(b) of the Act of 1954 and, unless made at the hearing of the application under section 24, an application for a certificate under section 37 (4) of that Act(297) may be made to the district judge without notice being served on any other party.
Service of order in proceedings under Part II of the Act of 1954
Rule 10. A copy of any order made on an application to which rule 6 or 9 relates shall be sent by the court to every party to the proceedings.
Proof of determination of rateable value
Rule 11. Where pursuant to section 37 (5) of the Act of 1954 any dispute as to the rateable value of any premises has been referred to the Commissioners of Inland Revenue for decision by a valuation officer, whether for the purpose of section 37 (2) or of section 63 of that Act(298), any document purporting to be a notification by the valuation officer of his decision shall be admissible in any proceedings in a county court as evidence of the matters contained therein.
Provisions as to assessors
Rule 13. (1) This rule applies to proceedings under Part I of the Act of 1927 or Part I or II of the Act of 1954, where an assessor is summoned by the judge under section 63 (1) of the County Courts Act 1984(299), as extended by section 63 of the Act of 1954.
(3) Any report made by the assessor pursuant to paragraph (a) of section 63 (6) of the Act of 1954 shall be filed by the assessor, together with a copy for each party to the proceedings, and thereupon the court shall send a copy to each party and shall, if the further consideration of the proceedings has not been adjourned to a day named, fix a day for further consideration and give notice thereof to all parties.
District judge’s jurisdiction
Rule 15. (1) If on the day fixed for the hearing of an application under section 7 or section 24 of the Act of 1954 the district judge is satisfied that—
(297)Section 37 was amended by the Law of Property Act 1969 (c. 59), section 11; and by the Local Government and Housing Act 1989 (c. 42), section 149(6), schedule 7, paragraph 2.
(298)Section 63 was amended by S.I. 1991/724. (299)1984 c. 28; section 63 was amended by S.I. 1998/2940.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
416
(a) the parties to the application have agreed, in the case of an application under section 7, on the matters specified in subsection (2) of that section, or, in the case of an application under section 24, on the subject, period and terms of the new tenancy;
(b) the owner of any reversionary interest in the property consents thereto; and (c) there are no other persons with interests in the property who are likely to be affected,
the district judge shall have power to make an order giving effect to the agreement. (2) An application under section 38 (4) of the Act of 1954(300) for the authorisation of an
agreement may be heard and determined by the district judge and may be dealt with in private.
Application under section 12 (2) of the Act of 1985
Rule 16. An application under section 12 (2) of the Act of 1985 for an order authorising the inclusion in a lease of provisions excluding or modifying the provisions of section 11 of that Act may be heard and determined by the district judge and may, if the court thinks fit, be dealt with in private.
Transfer to leasehold valuation tribunal
Rule 16A. Where a question arising in proceedings is ordered to be transferred to a leasehold valuation tribunal for determination under section 31C of the Landlord and Tenant Act 1985(301) the court shall—
(a) send notice of the transfer to all parties to the proceedings; and (b) send to the leasehold valuation tribunal copies certified by the district judge of all entries
in the records of the court relating to the question, together with the order of transfer and all documents filed in the proceedings which relate to the question.
Application under section 19 of the Act of 1987
Rule 17. A copy of the notice served under section 19 (2)(a) of the Act of 1987 shall be appended to the claim form seeking an order under section 19 (1) thereof, and an additional copy of the notice shall be filed.
Application for order under section 24 of the Act of 1987
Rule 18. (1) An applicant for an order under section 24 of the Act of 1987(302) shall state— (a) the premises to which the application relates; (b) the name and address of the applicant and of the landlord of the premises, or, where the
landlord cannot be found or his identity ascertained, the steps taken to find him or ascertain his identity;
(c) the name and address of every person known to the applicant who is likely to be affected by the application, including, but not limited to, the other tenants of flats contained in the premises, any mortgagee or superior landlord of the landlord, and any tenants' association;
(d) the name, address and qualifications of the person it is desired to be appointed manager of the premises;
(e) the functions which it is desired that the manager should carry out; and (f) the grounds of the application,
(300)Section 38 was amended by the Law of Property Act 1969 (c. 59), section 5. (301)1985 c. 70. section 31C was inserted by the Housing Act 1996 (c. 52), section 83(3). (302)1987 c. 31; section 24 was amended by the Housing Act 1996 (c. 52), section 85, 227, schedule 19, Part III.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
417
and a copy of the notice served on the landlord under section 22 of the Act of 1987(303) shall be appended to the claim form unless the requirement to serve such a notice has been dispensed with, and an additional copy of the notice shall be filed.
(2) The respondent to an application for an order under section 24 of the Act of 1987 shall be the landlord of the premises.
(3) A copy of the application shall be served on— (a) each of the persons named by the applicant under paragraph (1)(c), together with a notice
stating that he may apply under rule 14 to be made a party to the proceedings; and (b) the person named under paragraph (1)(d).
(4) RSC Order 30, rules 2 to 8 shall apply to proceedings in which an application is made for an order under section 24 of the Act of 1987 as they apply to proceedings in which an application is made for the appointment of a receiver, and as if for the references in those rules to a receiver there were references to a manager under the Act of 1987.
Application for acquisition order under section 29 of the Act of 1987
Rule 19. (1) An application for an acquisition order under section 29 of the Act of 1987(304) shall—
(a) identify the premises to which the application relates and give such details of them as are necessary to show that section 25 of the Act of 1987 applies to them;
(b) give such details of the applicants as are necessary to show that they constitute the requisite majority of qualifying tenants;
(c) state the names and addresses of the applicants and of the landlord of the premises, or, where the landlord cannot be found or his identity ascertained, the steps taken to find him or ascertain his identity;
(d) state the name and address of the person nominated by the applicants for the purposes of Part III of the Act of 1987;
(e) state the name and address of every person known to the applicants who is likely to be affected by the application, including, but not limited to, the other tenants of flats contained in the premises (whether or not they could have made an application), any mortgagee or superior landlord of the landlord, and any tenants' association; and
(f) state the grounds of the application, and a copy of the notice served on the landlord under section 27 of the Act of 1987(305) shall be appended to the claim form unless the requirement to serve such a notice has been dispensed with, and an additional copy of the notice shall be filed.
(2) The respondents to an application for an acquisition order under section 29 of the Act of 1987 shall be the landlord of the premises and the nominated person, where he is not an applicant.
(3) A copy of the application shall be served on each of the persons named by the applicant under paragraph (1)(e), together with a notice stating that he may apply under rule 14 to be made a party to the proceedings.
(4) Where the nominated person pays money into court in accordance with an order under section 33 (1) of the Act of 1987, he shall file a copy of the certificate of the surveyor selected under section 33 (2)(a) thereof.
(303)Section 22 was amended by the Housing Act 1996 (c. 52), section 86. (304)Section 29 was amended by the Leasehold Reform, Housing and Urban Development Act 1993 (c. 28), section 85, 187(2),
schedule 22; and by the Housing Act 1996 (c. 52), section 88. (305)Section 27 was amended by the Leasehold Reform Housing and Urban Development Act 1993 (c. 28), section 85.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
418
Application for order under section 38 or section 40 of the Act of 1987
Rule 20. (1) An application for an order under section 38 or section 40 of the Act of 1987(306) shall state—
(a) the name and address of the applicant and of the other current parties to the lease or leases to which the application relates;
(b) the date of the lease or leases, the premises demised thereby, the relevant terms thereof and the variation sought;
(c) the name and address of every person who the applicant knows or has reason to believe is likely to be affected by the variation, including, but not limited to, the other tenants of flats contained in the premises of which the demised premises form a part, any previous parties to the lease, any mortgagee or superior landlord of the landlord, any mortgagee of the applicant, and any tenants' association; and
(d) the grounds of the application. (2) The other current parties to the lease or leases shall be made respondents to the application. (3) A copy of the application shall be served by the applicant on each of the persons named by
the applicant under paragraph (1)(c) and by the respondent on any other person who he knows or has reason to believe is likely to be affected by the variation, together, in each case, with a notice stating that the person may apply under rule 14 to be made a party to the proceedings.
(4) An application under section 36 of the Act of 1987 shall be contained in the respondent’s answer, and paragraphs (1) to (3) shall apply to such an application as if the respondent were the applicant.
Service of documents in proceedings under the Act of 1987
Rule 21. (1) Where a claim form or answer is to be served in proceedings under the Act of 1987 it shall be served by the applicant or, as the case may be, by the respondent.
(2) Where a notice is to be served in or before proceedings under the Act of 1987, it shall be served in accordance with section 54 and, in the case of service on a landlord, it shall be served at the address furnished under section 48 (1).
Tenants' associations
Rule 22. In rules 18, 19 and 20 a reference to a tenants' association is a reference to a recognised tenants' association within the meaning of section 29 of the Act of 1985 which represents tenants of the flats of which the demised premises form a part.
CCR ORDER 44 THE AGRICULTURAL HOLDINGS ACT 1986
Order to arbitrator to state case
Rule 1. (1) An application under paragraph 26 of Schedule 11 to the Agricultural Holdings Act 1986(307) for an order directing an arbitrator to state, in the form of a special case for the opinion of the court, a question of law arising in the course of the arbitration shall include a concise statement of the question of law.
(306)Section 40 was amended by the Housing Act 1988 (c. 50), section 119, schedule 13, paragraph 6. (307)1986 c. 5.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
419
(2) The arbitrator shall not be made a respondent to the application, but if the judge grants the application, a copy of the order shall be served on the arbitrator.
Special case stated by arbitrator
Rule 2. (1) Where, pursuant to the said paragraph 26, an arbitrator states, in the form of a special case for the opinion of the court, any question of law arising in the course of the arbitration, the case shall contain a statement of such facts and reference to such documents as may be necessary to enable the judge to decide the question of law.
(2) The case shall be signed by the arbitrator and shall be lodged in the court office by the arbitrator or any party to the arbitration, together with a copy for the use of the judge.
(3) The court officer shall fix a day for the hearing of the special case and give notice thereof to the parties.
(4) On the hearing the judge shall be at liberty to draw any inferences of fact from the case and the documents referred to therein.
(5) The judge may remit the case to the arbitrator for restatement or further statement. (6) A copy of the order made by the judge on the hearing shall be served on the parties to the
arbitration and on the arbitrator.
Removal of arbitrator or setting aside award
Rule 3. (1) An application under paragraph 27 of Schedule 11 to the said Act of 1986 for the removal of an arbitrator on the ground of his misconduct or for an order setting aside an award on the ground that the arbitrator has misconducted himself or that an arbitration or award has been improperly procured or that there is an error of law on the face of the award shall be made within 21 days after the date of the award.
(2) The arbitrator and all parties to the arbitration, other than the applicant, shall be made respondents.
Enforcement of order imposing penalty
Rule 4. (1) When taking any proceedings for the enforcement in a county court of an order under section 27 of the Agricultural Holdings Act 1986, the party in whose favour the order was made shall file—
(a) a certified copy of the order; and (b) a certificate specifying the amount due under the order and stating whether any previous
proceedings have been taken for its enforcement and, if so, the nature of the proceedings and their result.
(2) Where it is desired to enforce the order by warrant of execution, the proceedings may be taken in any court in the district of which execution is to be levied.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
420
CCR ORDER 45 THE REPRESENTATION OF THE PEOPLE ACT 1983
Application for detailed assessment of returning officer’s account
Rule 1. (1) An application by the Secretary of State under section 30 of the Representation of the People Act 1983(308) for the detailed assessment of a returning officer’s account shall be made by claim form and on issuing the claim form the court will fix a day for the hearing which shall be a day for proceeding with the detailed assessment if the application is granted.
(2) Where on the application the returning officer desires to apply to the court to examine any claim made against him in respect of matters charged in the account, the application shall be made in writing and filed, together with a copy thereof, within 7 days after service on the returning officer of the copy of the application for detailed assessment.
(3) On the filing of an application under paragraph (2) the court officer shall fix a day for the hearing and give notice thereof to the returning officer, and a copy of the application and of the notice shall be served on the claimant in the manner required for service of the notice of the day of hearing in accordance with Order 3, rule 6.
(4) The examination and detailed assessment may, if the court thinks fit, take place on the same day, but the examination shall be determined before the detailed assessment is concluded.
(5) The application for detailed assessment and any application under paragraph (2) may be heard and determined by the district judge and a copy of the order made on the application shall be served on the Secretary of State and the returning officer and, in the case of an application under paragraph (2), on the claimant.
Appeal from decision of registration officer
Rule 2. (1) Where notice of appeal from a decision of a registration officer is given pursuant to regulations made under section 53 of the said Act of 1983, the registration officer shall, within 7 days after receipt of the notice by him, forward the notice by post to the court in which the appeal is required to be brought, together with the statement mentioned in those regulations.
(2) The appeal shall be brought in the court for the district in which the qualifying premises are situated.
In this paragraph “qualifying premises” means the premises in respect of which— (a) the person whose right to be registered in the register of electors is in question on the appeal
is entered on the electors' list or is registered or claims to be entitled to be registered; or (b) the person whose right to vote by proxy or by post is in question on the appeal is or will
be registered in the register of electors; or (c) the elector whose proxy’s right to vote by post is in question on the appeal is or will be
registered in the register of electors,
as the case may be. (3) The respondents to the appeal shall be the registration officer and the party (if any) in whose
favour the decision of the registration officer was given. (4) On the hearing of the appeal—
(a) the statement forwarded to the court by the registration officer and any document containing information furnished to the court by the registration officer pursuant to the
(308)1983 c. 3.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
421
regulations mentioned in paragraph (1) shall be admissible as evidence of the facts stated therein; and
(b) the judge shall have power to draw all inferences of fact which might have been drawn by the registration officer and to give any decision and make any order which ought to have been given or made by the registration officer.
(5) A respondent to an appeal other than the registration officer shall not be liable for or entitled to costs, unless he appears before the court in support of the decision of the registration officer.
Selected appeals
Rule 3. (1) Where two or more appeals to which rule 2 relates involve the same point of law, the judge may direct that one appeal shall be heard in the first instance as a test case and thereupon the court shall send a notice of the direction to the parties to the selected appeal and the parties to the other appeals.
(2) If within 7 days after service of such notice on him any party to an appeal other than the selected appeal gives notice to the court that he desires the appeal to which he is a party to be heard—
(a) the appeal shall be heard after the selected appeal is disposed of; (b) the court shall give the parties to the appeal notice of the day on which it will be heard; (c) the party giving notice under this paragraph shall not be entitled to receive any costs
occasioned by the separate hearing of the appeal to which he is a party, unless the judge otherwise orders.
(3) If no notice is given under paragraph (2) within the time limited— (a) the decision on the selected appeal shall bind the parties to each other appeal without
prejudice to their right to appeal to the Court of Appeal; (b) an order similar to the order in the selected appeal shall be made in each other appeal
without further hearing; (c) the party to each other appeal who is in the same interest as the unsuccessful party to the
selected appeal shall be liable for the costs of the selected appeal in the same manner and to the same extent as the unsuccessful party to that appeal and an order directing him to pay such costs may be made and enforced accordingly.
CCR ORDER 46 THE LEGITIMACY ACT 1976
Manner of application
Rule 1. (1) An application to a county court under section 45 (2) of the Matrimonial Causes Act 1973(309) for a declaration of legitimation by virtue of the Legitimacy Act 1976(310) shall be made by claim form stating—
(a) the grounds on which the applicant relies; (b) the date and place of birth of the applicant and the maiden name of his mother and, if it
be the case, that the applicant is known by a name other than that which appears in the certificate of his birth; and
(309)1973 c. 18; section 45 was amended by the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22); section 89, schedule 2, paragraph 39; by the Matrimonial and Family Proceedings Act 1984 (c. 42), section 46(1), schedule 1, paragraph 15; and by the Family Law Act 1986 (c. 55), section 68(1), schedule 1, paragraph 14.
(310)1976 c. 31.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
422
(c) particulars of every person whose interest may be affected by the proceedings and his relationship, if any, to the applicant, including any person other than the applicant’s father to whom his mother was married at the date of his birth.
(2) The application may be filed in the court for the district in which the applicant resides or the marriage leading to the legitimation was celebrated, or if neither the residence of the applicant nor the place of the marriage is in England or Wales, then in the Westminster County Court.
(3) The applicant shall file with the claim form— (a) a witness statement or affidavit by him (or, if he is a child, by his litigation friend) verifying
the application; and (b) any birth, death or marriage certificate intended to be relied on at the hearing.
Preliminary consideration and service
Rule 2. (1) On the filing of the documents mentioned in rule 1, the court officer shall fix a day for a case management hearing and give notice thereof to the Attorney-General.
(2) It shall not be necessary to serve the application on the Attorney-General otherwise than by delivering a copy of it to him in accordance with section 45 (6) of the Matrimonial Causes Act 1973.
(3) At the case management hearing the court shall give directions as to the persons, if any, other than the Attorney-General, who are to be made respondents to the application.
(4) Where in the opinion of the court it is impracticable to serve a respondent other than the Attorney-General in accordance with the rules relating to service or it is otherwise necessary or expedient to dispense with service of the claim form on any such respondent, the court may make an order dispensing with service on him.
Answer
Rule 3. (1) The Attorney-General may file an answer to the application within 14 days after directions have been given at the case management hearing.
(2) Any other respondent who wishes to oppose the application or to dispute any of the facts alleged in it shall, within 14 days after service of the application on him, file an answer to the application.
(3) A respondent who files an answer shall file with it as many copies as there are other parties to the proceedings and the court shall send one of the copies to each of those parties.
CCR ORDER 47 DOMESTIC AND MATRIMONIAL PROCEEDINGS
Family Law Reform Act 1969
Rule 5. (1) In this rule— “blood samples” and “blood tests” have the meanings assigned to them by section 25 of the Family Law Reform Act 1969(311); and “direction” means a direction for the use of blood tests under section 20 (1) of that Act.
(311) 1969 c. 46; section 25 was amended by the Human Fertilisation and Embryology Act 1990 (c. 37), section 49(5), schedule 4, paragraph 1; and section 20 by the Children Act 1989 (c. 41), section 89; and by the Courts and Legal Services Act 1990 (c. 41) , section 116, schedule 16, Part I, paragraph 3.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
423
(2) Except with the permission of the court, an application in any proceedings for a direction shall be made on notice to every party to the proceedings (other than the applicant) and to any other person from whom the direction involves the taking of blood samples.
(3) Where an application is made for a direction involving the taking of blood samples from a person who is not a party to the proceedings in which the application is made, the application notice shall be served on him personally and the court may at any time direct him to be made a party to the proceedings.
(4) Where an application is made for a direction in respect of a person (in this paragraph referred to as a person under disability) who is either—
(a) under 16; or (b) suffering from mental disorder within the meaning of the Mental Health Act 1983(312)
and incapable of understanding the nature and purpose of blood tests, the notice of application shall state the name and address of the person having the care and control of the person under disability and shall be served on him instead of on the person under disability.
(5) Where the court gives a direction in any proceedings, the court officer shall send a copy to every party to the proceedings and to every other person from whom the direction involves the taking of blood samples, and, unless otherwise ordered, the proceedings shall stand adjourned until the court receives a report pursuant to the direction.
(6) On receipt by the court of a report made pursuant to a direction, the court officer shall send a copy to every party to the proceedings and to every other person from whom the direction involved the taking of blood samples.
CCR ORDER 48B ENFORCEMENT OF PARKING PENALTIES
UNDER THE ROAD TRAFFIC ACT 1991(313)
Application and interpretation
Rule 1. (1) This Order applies for the recovery of— (a) increased penalty charges provided for in parking charge certificates issued under
paragraph 6 of Schedule 6 to the 1991 Act; and (b) amounts payable by a person other than an authority under an adjudication of a parking
adjudicator pursuant to section 73 of the 1991 Act. (2) In this Order, unless the context otherwise requires—
“authority” means the local authority which served the charge certificate; “order” means an order made under paragraph 7 of Schedule 6 to the 1991 Act or, as the case may be, under section 73 of that Act; “the Order” means the Enforcement of Road Traffic Debts Order 1993(314) made under section 78 of the 1991 Act as it applies to a local authority; “relevant period” means the period of 21 days allowed for serving a statutory declaration by paragraph 8 (1) of Schedule 6 to the 1991 Act or, where a longer period has been allowed pursuant to paragraph 8 (4) of the said Schedule, that period;
(312)1983 c. 20. (313) 1991 c. 40. (314)S.I. 1993/2073.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
424
“respondent” means the person on whom the charge certificate was served or, as the case may be, the person (other than an authority) by whom the amount due under an adjudication of a parking adjudicator is payable; “specified debts” means the Part II debts specified in article 2 of the Order; “statutory declaration” means a declaration in the appropriate form which complies with paragraph 8 (2) of Schedule 6 to the 1991 Act; and “the 1991 Act” means the Road Traffic Act 1991.
(3) Unless the context otherwise requires, expressions which are used in the 1991 Act have the same meaning in this Order as they have in that Act.
(4) The references in paragraph (2) to a local authority mean— (a) in England, a London authority, a county or district council or the Council of the Isles of
Scilly; and (b) in Wales, a county or county borough council.
Establishment of the parking enforcement centre
Rule 1A. (1) There shall be a parking enforcement centre (“the Centre”) situated at such place or places as the Lord Chancellor may determine and having such functions relating to proceedings under this Order and other related matters as he may direct.
(2) For any purpose connected with the exercise of the Centre’s functions— (a) the Centre shall be deemed to be part of the office of the court whose name appears on the
documents to which the functions relates or in whose name the documents are issued; (b) any officer of the Centre shall, in exercising its functions, be deemed to act as a court
officer of that court, and these rules shall have effect accordingly.
Requests for orders
Rule 2. (1) An authority which wishes to take proceedings under this Order shall give notice to the court officer and, where the court officer so allows, requests for orders may be made, and such orders may be enforced, in accordance with the following provisions of this Order.
(2) An authority shall file a request for an order in the appropriate form scheduling the increased penalty charges in respect of which an order is sought.
(3) The authority shall in the request or in another manner approved by the court officer— (a) certify—
(i) that 14 days have elapsed since service of the charge certificate; (ii) the amount due under the charge certificate and the date on which the charge
certificate was served; and (iii) that the amount due remains unpaid;
(b) give the charge certificate number; (c) specify (whether by reference to the appropriate code or otherwise) the grounds stated in
the notice to owner on which the parking attendant who issued the penalty charge notice believed that a penalty charge was payable with respect to the vehicle;
(d) state— (i) the name and address of the respondent and, where known, his title;
(ii) the registration number of the vehicle concerned;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
425
(iii) (whether by reference to the appropriate charge certificate’s number or otherwise) the authority’s address for service;
(iv) the court fee. (4) If satisfied that the request is in order, the court officer shall order that the increased charge
(together with the court fee) may be recovered as if it were payable under a county court order by sealing the request and returning it to the authority.
(5) When the court officer so orders and on receipt of the sealed request, the authority may draw up the order and shall annex to any such order a form of statutory declaration for the respondent’s use.
(6) Within 14 days of receipt of the sealed request, the authority shall serve the order (and the form of statutory declaration) on the respondent by—
(a) delivering the order to the respondent personally; or (b) sending it by first-class post to the respondent at the address given in the request.
(6A) Where an order is served in accordance with paragraph (6)(b), the date of service shall, unless the contrary is shown, be deemed to be the seventh day after the date on which the order was sent to the respondent.
(6B) Subject to paragraphs (6C) and (6D), where partners are served in the name of their firm, service of an order shall be good service on all the partners, whether any of them is out of England and Wales or not, if the order is—
(a) delivered to a partner personally; or (b) served by a court officer sending it by first class post to the firm at the address stated in
the request. (6C) Where the partnership has to the knowledge of the authority been dissolved before the
service of the order, the order shall be served upon every person within the jurisdiction sought to be made liable.
(6D) Unless the authority, or its solicitor, otherwise requests, service on the partnership shall be effected in accordance with paragraph (6B)(b).
(6E) Where an order is served in accordance with paragraph (6B)(b) the date of service shall, unless the contrary is shown, be deemed to be the seventh day after the date on which the order was sent to the respondent.
(6F) Service on a corporation may be effected by serving it on the mayor, chairman or president of the body or the chief executive, clerk, secretary, treasurer or other similar officer thereof.
(6G) Service of a summons on a company registered in England and Wales may be effected by serving it at the registered office or at any place of business of the company which has some real connection with an issue in the proceedings.
(6H) Where an order has been served under paragraph (6G) other than at the registered office, and after a request for a warrant of execution has been sealed, it appears to the court officer that the order did not come to the attention of the appropriate person within the company in due time, the court may, on application under CPR Part 23 or of its own initiative, set aside the warrant, and may give such directions as it considers appropriate.
(7) Where an authority requests an order in respect of amounts payable by a person other than an authority under an adjudication of a parking adjudicator pursuant to section 73 of the 1991 Act, paragraphs (2) and (3) shall apply with the necessary modifications and in addition the authority shall—
(a) state the date on which the adjudication was made; (b) provide details of the order made on the adjudication; and (c) certify the amount awarded by way of costs and that the amount remains unpaid.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
426
Documents
Rule 3. (1) Where by or under this Order any document is required to be filed, that requirement shall be deemed to be satisfied if the information which would be contained in the document is delivered in computer-readable form but nothing in this paragraph shall be taken as enabling an authority to commence proceedings without supplying a written request in the appropriate form under rule 2 (2).
(2) For the purposes of paragraph (1), information which would be contained in a document relating to one case may be combined with information of the same nature relating to another case.
(3) Where by or under this Order or by virtue of any order a document which contains information is required to be produced, that requirement shall be deemed to be satisfied if a copy of the document is produced from the computer records kept for storing such information.
Functions of court officer
Rule 4. (1) The functions of the district judge under paragraph 8 (4) and (5)(d) of Schedule 6 to the 1991 Act (longer period for service of the statutory declaration and notice of effect of statutory declaration) may be exercised by the court officer.
(2) Where pursuant to paragraph 8 (4) of Schedule 6 to the 1991 Act a longer period is allowed for service of the statutory declaration, the court officer shall notify the authority and the respondent accordingly.
Enforcement of orders
Rule 5. (1) Subject to the Order and to this rule, the following provisions of Orders 25 to 27, 30 and 31 of these Rules shall apply for the enforcement of specified debts—
Order 25, rules 1, 2 (except paragraph (3)(b), (c) and (d)), 3, 5 (except paragraph (1)(a) and (b)) and 9; Order 26, rule 5; Order 27, rules 1 to 7, 7A, 9 to 16 and 18 to 22; Order 30, rules 1 to 3, 5 and 7 to 15; Order 31, rules 1 to 4.
(2) CPR rule 30.2(1) (b) (ii) (court may order transfer of proceedings to enforce judgment or order to another county court if proceedings could be more conveniently or fairly taken there) applies to proceedings under this Order.
(3) An authority desiring to issue a warrant of execution shall file a request in that behalf in the appropriate form or in another manner approved by the court officer—
(a) certifying the amount remaining due under the order; (b) specifying the date of service of the order on the respondent; and (c) certifying that the relevant period has elapsed.
(4) The court shall seal the request and return it to the authority which shall, within 7 days of the sealing of the request, prepare the warrant in the appropriate form.
(5) No payment under a warrant shall be made to the court. (6) A warrant shall, for the purpose of execution, be valid for 12 months beginning with the date
of its issue and nothing in this rule or in Order 26 shall authorise an authority to renew a warrant. (7) Where an order is deemed to have been revoked under paragraph 8 (5) of Schedule 6 to the
1991 Act— (a) the court shall serve a copy of the statutory declaration on the authority;
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
427
(b) any execution issued on the order shall cease to have effect; and (c) on receipt of the court officer’s notice under paragraph 8 (5)(d) of Schedule 6, the authority
shall forthwith inform any bailiff instructed to levy execution of the withdrawal of the warrant.
(8) In addition to the requirements of that rule, any application by an authority under Order 25, rule 2, shall—
(a) where the authority has not attempted to enforce by execution, give the reasons why no such attempt was made;
(b) certify that there has been no relevant return to the warrant of execution; (c) specify the date of service of the order on the respondent; and (d) certify that the relevant period has elapsed.
(9) An application under Order 30, rule 2 and (unless provided pursuant to an application under Order 25 rule 2) any application by an authority under Order 25, rule 3, Order 27, rule 4 (1) or Order 31, rule 1 (2) shall, in addition to the requirements of those rules—
(a) where the authority has not attempted to enforce by execution, give the reasons why no such attempt was made;
(b) certify that there has been no relevant return to the warrant of execution; (c) specify the date of service of the order on the respondent, and (d) certify that the relevant period has elapsed.
(10) In paragraphs (8) and (9) “no relevant return to the warrant” means that— (a) the bailiff has been unable to seize goods because he has been denied access to the premises
occupied by the respondent or because the goods have been removed from those premises; (b) any goods seized under the warrant of execution are insufficient to satisfy the specified
debt and the cost of execution; or (c) the goods are insufficient to cover the cost of their removal and sale.
(11) If the court officer allows, an authority may combine information relating to one charge certificate with information concerning the same respondent in another charge certificate in any request made, or any application brought, under one of the provisions mentioned in paragraph (8) or (9) above.
CCR ORDER 49 MISCELLANEOUS STATUTES
Access to Neighbouring Land Act 1992(315)
Rule 1. (1) In this rule, “the 1992 Act” means the Access to Neighbouring Land Act 1992, a section referred to by number means the section so numbered in the 1992 Act and expressions which are defined in the 1992 Act have the same meaning in this rule as they have in that Act.
(2) An application for an access order under section 1 of the 1992 Act shall be made by the issue of a claim form which shall be filed in the court for the district in which the dominant land is situated.
(3) The application shall— (a) identify the dominant land and the servient land and state whether the dominant land is
or includes residential land;
(315)1992 c. 23.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
428
(b) specify the works alleged to be necessary for the preservation of the whole or a part of the dominant land;
(c) state why entry upon the servient land is required and specify the area to which access is required by reference, if possible, to a plan annexed to the application;
(d) give the name of the person who will be carrying out the works if it is known at the time of the application;
(e) state the proposed date on which, or the dates between which, the works are to be started and their approximate duration, and
(f) state what (if any) provision has been made by way of insurance in the event of possible injury to persons or damage to property arising out of the proposed works.
(4) The respondents shall be the owner and the occupier of the servient land and any respondent who wishes to be heard on the application shall file an answer within 14 days after the date of service of the application on him.
(5) Order 24, rule 3 shall apply with the necessary modifications to service of the claim form under this rule.
(6) The court may direct that a copy of the claim form shall be served on any person who may be affected by the proposed entry and any such person may, within 14 days after service of the claim form on him, apply to be made a respondent to the application.
(7) The application may be heard and determined by the district judge and may, if the court thinks fit, be dealt with in private.
Administration of Justice Act 1970(316)
Rule 1A. Any claim by a mortgagee for possession of a dwelling-house, being a claim to which section 36 of the Administration of Justice Act 1970 applies, shall be dealt with by the court sitting in private unless the court otherwise directs.
Chancel Repairs Act 1932(317)
Rule 2. (1) A notice to repair under section 2 of the Chancel Repairs Act 1932 shall— (a) identify the responsible authority by whom it is given and the chancel alleged to be in
need of repair; (b) state the repairs alleged to be necessary and the grounds on which the person to whom the
notice is addressed is alleged to be liable to repair the chancel, and (c) call upon that person to put the chancel in proper repair,
and shall be served in accordance with paragraph 1A. (1A) The notice may be served—
(a) where no solicitor is acting for the person to be served, by delivering it to him personally, or by delivering it at, or sending it by first-class post to his address for service or, if he has no address for service by—
(i) by delivering it at his residence or by sending it by first class post to his last known residence, or
(ii) in the case of a proprietor of a business, by delivering it at his place of business or sending it by first class post to his last known place of business.
(b) Where a solicitor is acting for the person to be served—
(316)1970 c. 31. (317)1932 c. 20.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
429
(i) by delivering it at, or sending it by first-class post to the solicitor’s address for service; or
(ii) where the solicitor’s address for service includes a numbered box at a document exchange, by leaving it at that document exchange or at a document exchange which transmits documents daily to that document exchange.
(c) For the purpose of this rule first class post means pre-paid post or post in respect of which prepayment is not required
(d) Any document which is left at a document exchange shall be deemed served on the second day after the day on which it was left, unless the contrary is shown.
(e) In determining for the purposes of this rule— (i) whether a document exchange transmits documents daily to another document
exchange, and (ii) the second day after the day on which a document was left at a document exchange,
any day on which the court office is closed shall be excluded. (2) Proceedings to recover the sum required to put a chancel in proper repair shall be started
by a claim form. (3) An application for the permission of the court under the proviso to subsection (2) of the said
section 2 may be made in accordance with CPR Part 23. (4) If the court is satisfied that the defendant has a defence to the claim on the merits, the court
may, on an application made by the defendant in accordance with CPR Part 23 order the claimant to give security for the defendant’s costs.
(5) Where judgment is given for the payment of a sum of money in respect of repairs not yet executed, the court may order that the money be paid into court and dealt with in such manner as the court may direct for the purpose of ensuring that the money is spent in executing the repairs, but nothing in this paragraph shall prejudice a solicitor’s lien for costs.
Consumer Credit Act 1974(318)
Rule 4. (1) In this rule “the Act” means the Consumer Credit Act 1974, a section referred to by number means the section so numbered in the Act and expressions which are defined in the Act have the same meaning in this rule as they have in the Act.
(2) This rule only applies to claims relating to land.
(Claims under the Act relating to money only shall be started by a claim form issued in accordance with CPR Part 7, and claims relating to recovery of goods shall be made in accordance with the procedure set out in the CPR Consumer Credit Act Practice Direction)
(3) Where in any claim relating to a regulated agreement the debtor or any surety has not been served with the claim form, the court may, on the claimant’s application made in accordance with CPR Part 23 without notice, at or before the hearing of the claim, dispense with the requirement in section 141 (5) that the debtor or surety, as the case may be, shall be made a party to the proceedings.
(4) Where a claim relating to a regulated agreement is brought by a person to whom a former creditor’s rights and duties under the agreement have been passed by assignment or by operation of law, the requirement in section 141 (5) that all parties to the agreement shall be made parties to the claim shall not apply to the former creditor unless the court so directs.
(5) An application under section 129 (1)(b) may be made by a claim form and the claim form—
(318)1974 c. 39.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
430
(a) shall be filed in the court for the district in which the applicant resides or carries on business; and
(b) shall state— (i) the date of the agreement and the parties to it with the number of the agreement or
sufficient particulars to enable the respondent to identify the agreement and details of any sureties;
(ii) if the respondent was not one of the original parties to the agreement, the name of the original party to the agreement;
(iii) the names and addresses of the persons intended to be served with the application; (iv) the place where the agreement was signed by the applicant; (v) details of the notice served by the respondent giving rise to the application;
(vi) the total unpaid balance admitted to be due under the agreement and the amount of any arrears (if known) together with the amount and frequency of the payments specified by the agreement;
(vii) the applicant’s proposals as to payment of any arrears and of future instalments together with details of his means;
(viii) where the application relates to a breach of the agreement other than the non-payment of money, the applicant’s proposals for remedying it.
(6) Any application under section 131 may be heard and determined by the judge or by the district judge.
(9) An application for an enforcement order may be made— (a) by a claim form asking for permission to enforce the agreement in respect of which the
order is sought, or (b) if, apart from the need to obtain an enforcement order, the creditor is entitled to payment
of the money or possession of land to which the agreement relates, by a claim to recover the money or land.
(10) A claim form under paragraph (9)(a) and the particulars of claim in a claim brought pursuant to paragraph (9)(b) shall state the circumstances rendering an enforcement order necessary.
(11) Paragraph (9) shall apply to an order under section 86 (2), 92 (2) or 126 as it applies to an enforcement order, so however that in the case of an order under section 86 (2) the personal representatives of the deceased debtor or hirer shall be made parties to the proceedings in which the order is sought, or, if no grant of representation has been made to his estate, the applicant shall, forthwith after commencing the proceedings, apply to the court for directions as to what persons, if any, shall be made parties to the proceedings as being affected or likely to be affected by the enforcement of the agreement.
(14) An application to a county court under section 139 (1)(a) for a credit agreement to be reopened shall be made by a claim form
(15) Where in any such proceedings in a county court as are mentioned in section 139 (1)(b) or (c), the debtor or a surety desires to have a credit agreement reopened, he shall, within 14 days after the service of the claim form on him, give notice to that effect to the court and to every other party to the proceedings and thereafter the debtor or surety, as the case may be, shall be treated as having delivered a defence or answer.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
431
Applications under section 114, 204 and 231 of the Copyright, Designs and Patents Act 1988(319)
Rule 4A. The CPR Patents Courts practice direction shall apply with the necessary modifications to proceedings brought under sections 114 (1), 204 (1) and 231 (1) of the Copyright, Designs and Patents Act 1988.
Fair Trading Act 1973(320)
Rule 5. (1) In this rule a section referred to by number means the section so numbered in the Fair Trading Act 1973 and “the Director” means the Director General of Fair Trading.
(2) Proceedings in a county court under section 35, 38 or 40 shall be started by a claim form. (3) The respondent shall file an answer. (4) Where in any proceedings under section 35 or 38 the Director intends to apply for a direction
under section 40 (2) that any order made against a body corporate (in this rule referred to as the “respondent body”) which is a member of a group of interconnected bodies corporate shall be binding on all members of the group, he shall file notice of his intention together with as many copies of the claim form and of the notice as are required for the purposes of paragraph (5).
(5) A copy of any notice under paragraph (4) shall be served on the respondent body and a copy of the notice together with a copy of the claim form and a notice of the return day shall be served on each of the bodies corporate specified in the notice under paragraph (4).
(6) The respondent body may at any time serve on the Director a notice containing particulars of any interconnected body corporate not mentioned in a notice under paragraph (4).
(7) With a view to deciding whether or in respect of which bodies notice should be given under paragraph (4) the Director may serve on the respondent body a notice requiring that body to give to him within 14 days after service of the notice particulars of any interconnected bodies corporate belonging to the same group as the respondent body and a copy of any such notice shall be filed.
(8) An application under section 40 (3) shall be made on notice to the respondent body and every interconnected body belonging to the same group.
Housing Act 1988: assured tenancies
Rule 6. (1) In this rule “the 1988 Act” means the Housing Act 1988(321); “dwelling-house” has the same meaning as in Part I of the 1988 Act; a Ground referred to by number means the Ground so numbered in Schedule 2 to the 1988 Act; “the requisite notice” means such a notice as is mentioned in any of those Grounds and “the relevant date” means the beginning of the tenancy.
(2) This rule applies to proceedings brought by a landlord to recover possession of a dwelling- house which has been let on an assured tenancy in a case where all the conditions mentioned in paragraph (3) below are satisfied.
(3) The conditions referred to in paragraph (2) are these. (a) The tenancy and any agreement for the tenancy were entered into on or after 15th January
1989. (b) The proceedings are brought
(319)1988 c. 48. (320)1973 c. 41. (321)1988 c. 50.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
432
(i) on Ground 1 (landlord occupation), (ii) on Ground 3 (former holiday occupation),
(iii) on Ground 4 (former student letting) or (iv) on Ground 5 (occupation by a minister of religion).
(c) The only purpose of the proceedings is to recover possession of the dwelling-house and no other claim is made in the proceedings (such as for arrears of rent).
(d) The tenancy is an assured tenancy within the meaning of the 1988 Act (and consequently is not a protected, statutory or housing association tenancy under the Rent Act 1977), and
(i) is the subject of a written agreement, or (ii) is on the same terms (though not necessarily as to rent) as a tenancy which was the
subject of a written agreement and arises by virtue of section 5 of the 1988 Act, or (iii) relates to the same or substantially the same premises which were let to the same
tenant and is on the same terms (though not necessarily as to rent or duration) as a tenancy which was the subject of a written agreement.
Where the tenancy in relation to which the proceedings are brought arises by virtue of section 5 of the 1988 Act but follows a tenancy which was the subject of an oral agreement, the condition mentioned in sub-paragraph (d)(ii) or (iii) above is not satisfied.
(e) The proceedings are brought against the tenant to whom the requisite notice was given. (f) The tenant was given the requisite notice, not later than the relevant date. (g) The tenant was given notice in accordance with section 8 of the 1988 Act that proceedings
for possession would be brought. (4) Where the conditions mentioned in paragraph (3) of this rule are satisfied, the landlord may
bring possession proceedings under this rule instead of making a claim in accordance with Order 6, rule 3 (claim for recovery of land by claim form).
(5) The application must be made in the prescribed form, and a copy of the application, with a copy for each defendant, must be filed in the court for the district in which the dwelling-house is situated.
(6) The application shall include the following information and statements. (a) a statement identifying the dwelling-house which is the subject matter of the proceedings; (b) a statement identifying the nature of the tenancy, namely—
(i) whether it is the subject of a written agreement; or (ii) whether the tenancy arises by virtue of section 5 of the 1988 Act, or
(iii) where it is the subject of an oral agreement whether the tenancy is periodic or for a fixed term and, if for a fixed term, the length of the term and the date of termination;
(c) a statement that the dwelling-house (or another dwelling-house) was not let to the tenant by the landlord (or any of his predecessors) before 15th January 1989;
(d) the date on which and the method by which the requisite notice was given to the tenant; (e) a statement identifying the Ground on which possession is claimed giving sufficient
particulars to substantiate the claimant’s claim to be entitled to possession on that Ground; (f) a statement that a notice was served on the tenant in accordance with section 8 of the 1988
Act, (i) specifying the date on which and the method by which the notice was served; and
(ii) confirming that the period of notice required by section 8 of the 1988 Act has been given; and
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
433
(g) the amount of rent which is currently payable. (7) Copies of the following documents shall be attached to the application— (i) the current (or most recent) written tenancy agreement,
(ii) the requisite notice (referred to in paragraph (6)(d) above), and (iii) the notice served in accordance with section 8 of the 1988 Act, together with any other
documents necessary to prove the claim. (8) The statements made in the application and any documents attached to the application shall
be verified by the claimant on oath. (9) Service of the application and of the attachments shall be effected by an officer of the
court sending them by first-class post to the defendant at the address stated in the application and paragraphs (c) and (d) of Order 3, rule 6 (mode of service) and Order 7, rule 15 (service of claim form for recovery of land) shall apply as they apply where service is effected under those rules.
(10) A defendant who wishes to oppose the claimant’s application must, within 14 days after the service of the application on him, complete and deliver at the court office the form of reply which was attached to the application.
(11) On receipt of the defendant’s reply the court shall— (a) send a copy of it to the claimant; (b) refer the reply and the claimant’s application to the judge, and where a reply is received
after the period mentioned in paragraph (10) but before a request is filed in accordance with paragraph (12) the reply shall be referred without delay to the judge.
(12) Where the period mentioned in paragraph (10) has expired without the defendant filing a reply, the claimant may file a written request for an order for possession and the court shall without delay refer the claimant’s application to the judge.
(13) After considering the application and the defendant’s reply (if any), the judge shall either— (a) make an order for possession under paragraph (15) or (b) fix a day for a hearing under paragraph (14) and give directions regarding the steps to be
taken before and at the hearing. (14) The court shall fix a day for the hearing of the application where the judge is not satisfied
as to any of the following— (a) that the requisite notice was given before the relevant date, (b) that a notice was served in accordance with section 8 of the 1988 Act and that the time
limits specified in the 1988 Act have been complied with, (c) that service of the application was duly effected, or (d) that the claimant has established that he is entitled to recover possession under the Ground
relied on against the defendant. (15) Except where paragraph (14) applies, the judge shall without delay make an order for
possession without requiring the attendance of the parties. (16) Where a hearing is fixed under paragraph (14)—
(a) the court shall give to all parties not less than 14 days' notice of the day fixed; (b) the judge may give such directions regarding the steps to be taken before and at the hearing
as may appear to him to be necessary or desirable. (17) The court may, on application made on notice in accordance with CPR Part 23 within 14
days of service of the order or of its own initiative, set aside, vary or confirm any order made under paragraph (15).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
434
(18) A district judge shall have power to hear and determine an application to which this rule applies and references in this rule to the judge shall include references to the district judge.
Housing Act 1988: assured shorthold tenancies
Rule 6A. (1) In this rule, “the 1988 Act” means the Housing Act 1988 and “dwelling-house” has the same meaning as in Part I of the 1988 Act.
(2) This rule applies to proceedings brought by a landlord under section 21 of the 1988 Act(322) to recover possession of a dwelling-house let on an assured shorthold tenancy on the expiry or termination of that tenancy in a case where all the conditions mentioned in paragraph (3) below (or, as the case may be, paragraph (9)) are satisfied.
(3) The conditions referred to in paragraph (2) are these— (a) The tenancy and any agreement for the tenancy were entered into on or after 15th January
1989. (b) The only purpose of the proceedings is to recover possession of the dwelling-house and
no other claim is made in the proceedings (such as for arrears of rent). (c) The tenancy—
(i) was an assured shorthold tenancy and not a protected, statutory or housing association tenancy under the Rent Act 1977(323);
(ii) did not immediately follow an assured tenancy which was not an assured shorthold tenancy;
(iii) fulfilled the conditions provided by section 19A or section 20(1)(a) to (c) of the 1988 Act(324), and
(iv) was the subject of a written agreement. (d) Where the tenancy and any agreement for the tenancy were entered into before 28th
February 1997, a notice in writing was served on the tenant in accordance with section 20 (2) of the 1988 Act and the proceedings are brought against the tenant on whom that notice was served.
(e) A notice in accordance with section 21 (1)(b) of the 1988 Act was given to the tenant in writing.
(4) Where the conditions mentioned in paragraph (3) or paragraph (9) of this rule are satisfied, the landlord may bring possession proceedings under this rule instead of making a claim in accordance with Order 6, rule 3 (claim for recovery of land by claim form).
(5) The application must be made in the prescribed form and a copy of the application, with a copy for each defendant, shall be filed in the court for the district in which the dwelling-house is situated.
(6) The application shall include the following information and statements— (a) A statement identifying the dwelling-house which is the subject matter of the proceedings. (b) A statement that the dwelling-house (or another dwelling-house) was not let to the tenant
by the landlord (or any of his predecessors) before 15th January 1989. (c) A statement that possession is claimed on the expiry of an assured shorthold tenancy under
section 21 of the 1988 Act giving sufficient particulars to substantiate the claimant’s claim to be entitled to possession.
(322)1988 c. 50; section 21 was amended by the Local Government and Housing Act 1989 (c. 42), section 194(1), schedule 11, paragraph 103; and by the Housing Act 1996 (c. 52), sections 98, 99.
(323)1977 c. 42. (324)Section 19A was amended by the Housing Act 1996 (c. 52), section 96(1), and section 20 by that Act, section 104, 227,
schedule 8, paragraph 2; schedule 19, Part IV.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
435
(d) Where the tenancy and any agreement for the tenancy were entered into before 28th February 1997, a statement that a written notice was served on the tenant in accordance with section 20 (2) of the 1988 Act.
(e) A statement that a notice in writing was given to the tenant in accordance with section 21 (1) of the 1988 Act specifying the date on which, and the method by which, the notice was given.
(f) In a case where the original fixed term tenancy has expired, a statement that no other assured tenancy is in existence other than an assured shorthold periodic tenancy (whether statutory or not).
(g) A statement confirming that there is no power under the tenancy agreement for the landlord to determine the tenancy (within the meaning given for the purposes of Part I of the 1988 Act by section 45 (4) of the 1988 Act) at a time earlier than six months from the beginning of the tenancy.
(h) A statement that no notice under section 20 (5) of the 1988 Act has been served. (7) Copies of the following documents shall be attached to the application (i) the written tenancy agreement (or, in a case to which paragraph (9) applies, the current (or
most recent) written tenancy agreement), (ii) where the tenancy and any agreement for the tenancy were entered into before 28th February
1997 the written notice served in accordance with section 20 (2) of the 1988 Act, and (iii) the notice in writing given in accordance with section 21 of the 1988 Act,
together with any other documents necessary to prove the claim. (8) The statements made in the application and any documents attached to the application shall
be verified by the claimant on oath. (9) Where on the coming to an end of an assured shorthold tenancy (including a tenancy
which was an assured shorthold but ceased to be assured before it came to an end) a new assured shorthold tenancy of the same or substantially the same premises (in this paragraph referred to as “the premises”) comes into being under which the landlord and the tenant are the same as at the coming to an end of the earlier tenancy, then the provisions of this rule apply to that tenancy but with the following conditions instead of those in paragraph (3)—
(a) The tenancy and any agreement for the tenancy were entered into on or after 15th January 1989.
(b) The only purpose of the proceedings is to recover possession of the dwelling-house and no other claim is made in the proceedings (such as for arrears of rent).
(c) The tenancy in relation to which the proceedings are brought— (i) is an assured shorthold tenancy within the meaning of section 20 of the 1988 Act
and consequently is not a protected, statutory or housing association tenancy under the Rent Act 1977;
(ii) did not immediately follow an assured tenancy which was not an assured shorthold tenancy, and
(aa) is the subject of a written agreement, or (ab) is on the same terms (though not necessarily as to rent) as a tenancy which
was the subject of a written agreement and arises by virtue of section 5 of the 1988 Act, or
(ac) relates to the same or substantially the same premises which were let to the same tenant and is on the same terms (though not necessarily as to rent or duration) as a tenancy which was the subject of a written agreement.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
436
Where the tenancy in relation to which the proceedings are brought arises by virtue of section 5 of the 1988 Act but follows a tenancy which was the subject of an oral agreement, the conditions mentioned in sub-paragraph (c)(ii)(ab) or (ac) above is not satisfied.
(d) Where the agreement and any agreement for the tenancy were entered into before 28th February 1997, a written notice was served in accordance with section 20 (2) of the 1988 Act on the tenant in relation to the first assured shorthold tenancy of the premises and the proceedings are brought against the tenant on whom that notice was served.
(e) A notice in writing was given to the tenant in accordance with section 21 (4) of the 1988 Act.
(10) In a case to which paragraph (9) applies, the application shall include the following information and statements.
(a) A statement identifying the dwelling-house which is the subject matter of the proceedings. (b) A statement identifying the nature of the tenancy, namely—
(i) whether it is the subject of a written agreement; (ii) whether the tenancy arises by virtue of section 5 of the 1988 Act, or
(iii) where it is the subject of an oral agreement, that the tenancy is periodic or for a fixed term, and if for a fixed term, the length of the term and the date of termination.
(c) A statement that the dwelling-house (or another dwelling-house) was not let to the tenant by the landlord (or any of his predecessors) before 15th January 1989.
(d) A statement that possession is claimed under section 21 of the 1988 Act giving sufficient particulars to substantiate the claimant’s claim to be entitled to possession.
(e) Where the tenancy and any agreement for the tenancy were entered into before 28th February 1997, a statement that a written notice was served in accordance with section 20 (2) of the 1988 Act in relation to the first assured shorthold tenancy of the premises on the tenant against whom the proceedings are brought.
(f) A statement that a notice in writing was given to the tenant in accordance with section 21 (4) of the 1988 Act specifying the date on which, and the method by which, the notice was given.
(g) In a case where the tenancy is a fixed term tenancy which has expired, a statement that no other assured tenancy is in existence other than an assured shorthold periodic tenancy (whether statutory or not).
(h) A statement confirming that there was no power under the tenancy agreement for the landlord to determine (within the meaning given for the purposes of Part I of the 1988 Act by section 45 (4) of the 1988 Act) the first assured shorthold tenancy of the premises to the tenant against whom the proceedings are brought at a time earlier than six months from the beginning of the tenancy.
(i) A statement that no notice under section 20 (5) of the 1988 Act has been served. (j) The amount of rent which is currently payable.
(11) Service of the application and of the attachments shall be effected by an officer of the court sending them by first-class post to the defendant at the address stated in the application and paragraphs (c) and (d) of Order 3, rule 6 (mode of service) and Order 7, rule 15 (service of claim form for recovery of land) shall apply as they apply where service is effected under those rules.
(12) A defendant who wishes to oppose the claimant’s application must, within 14 days after the service of the application on him, complete and deliver at the court office the form of reply which was attached to the application.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
437
(13) On receipt of the defendant’s reply the court shall— (a) send a copy of it to the claimant; (b) refer the reply and the claimant’s application to the judge and where a reply is received
after the period mentioned in paragraph (12) but before a request is filed in accordance with paragraph (14) the reply shall be referred without delay to the judge.
(14) Where the period mentioned in paragraph (12) has expired without the defendant filing a reply, the claimant may file a written request for an order for possession and the court shall without delay refer any such request to the judge.
(15) After considering the application and the defendant’s reply (if any), the judge shall either— (a) make an order for possession under paragraph (17); or (b) fix a day for a hearing under paragraph (16) and give directions regarding the steps to be
taken before and at the hearing. (16) The court shall fix a day for the hearing of the application where the judge is not satisfied
as to any of the following— (a) where the tenancy and any agreement for the tenancy were entered into before 28th
February 1997 that a written notice was served in accordance with section 20 of the 1988 Act,
(b) that a written notice was given in accordance with section 21 of the 1988 Act, (c) that service of the application was duly effected, or (d) that the claimant has established that he is entitled to recover possession under section 21
of the 1988 Act against the defendant. (17) Except where paragraph (16) applies, the judge shall without delay make an order for
possession without requiring the attendance of the parties. (18) Where a hearing is fixed under paragraph (16)—
(a) the court shall give to all parties not less than 14 days' notice of the day so fixed; (b) the judge may give such directions regarding the steps to be taken before and at the hearing
as may appear to him to be necessary or desirable. (19) The court may, on application made on notice in accordance with CPR Part 23 within 14
days of service of the order or of its own initiative, set aside, vary or confirm any order made under paragraph (17).
(20) A district judge shall have power to hear and determine an application to which this rule applies and references in this rule to the judge shall include references to the district judge.
Housing Act 1996: injunctions and powers of arrest
Rule 6B. (1) An application for an injunction under section 152 of the Housing Act 1996(325) may be made by a claim in the appropriate prescribed form and shall be commenced in the court for the district in which the respondent resides or the conduct complained of occurred.
(2) Every application shall— (a) state the terms of the injunction applied for; and (b) be supported by a witness statement or affidavit in which the grounds on which the
application is made are set out.
(325)1996 c. 52.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
438
(3) Every application made on notice must be served, together with a copy of the witness statement or affidavit, by the applicant on the respondent personally not less than 2 days before the date on which the application will be heard.
(4) Where an application is made without giving notice, the affidavit in support shall explain why notice was not given and the application and witness statement or affidavit shall be served (with a copy of any order made by the court), on the respondent personally without delay.
(5) Unless otherwise directed, every application made on notice shall be heard in public. (6) Where in exercise of the powers conferred by section 152 (6) or 153 (1) of the Housing Act
1996, a power of arrest is attached to any provision of an injunction (“a relevant provision”)— (a) each relevant provision shall be set out in a separate clause of the injunction and no such
clause shall refer to any form of conduct which would not entitle a constable to arrest the respondent under paragraph (a), (b) or (c) of section 152(1) or under paragraph (a), (b) or (c) of section 153 (5) of the Housing Act 1996; and
(b) the applicant shall deliver a copy of the relevant provisions to the police officer for the time being in charge of any police station for the area where the conduct occurred.
(7) Where an order is made varying or discharging any relevant provision of an injunction to which a power of arrest has been attached, the court shall—
(a) immediately inform the police officer for the time being in charge of the police station to which a copy of the relevant provisions was delivered under paragraph (6); and
(b) deliver a copy of the order to any police officer so informed. (8) The judge before whom a person is brought following his arrest may adjourn the proceedings
and, where such an order is made, the arrested person shall be released and— (a) be dealt with (whether by the same or another judge) within 14 days of the day on which
he was arrested; and (b) be given not less than 2 days' notice of the adjourned hearing;
Nothing in this paragraph shall prevent the issue of a notice under Order 29 rule 1 (4) if the arrested person is not dealt with within the period mentioned in sub-paragraph (a).
(9) In relation to a person who is in custody under such an order and warrant of a county court, Order 29, rule 3, shall have effect as if the order and warrant were issued at the instance of the person who made the application.
(10) Order 29, rule 1 shall apply where an application is made to commit a person— (a) for breach of an injunction granted, or (b) arrested under a power of arrest attached to an injunction under Chapter III of Part V of
the Housing Act 1996, as if references in that rule to the judge included references to a district judge.
(11) In paragraph (8) “arrest” means the arrest of a person pursuant to a power of arrest which, in exercise of the powers conferred by section 152 (6) or 153 (1) of the Housing Act 1996, has been attached to an injunction.
(12) The jurisdiction of the court under sections 152 to 157 of the Housing Act 1996 may be exercised by a district judge
Injunctions to prevent environmental harm: Town and Country Planning Act 1990 etc.
Rule 7. (1) An injunction under—
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
439
(a) section 187B or 214A of the Town and Country Planning Act 1990(326), (b) section 44A of the Planning (Listed Buildings and Conservation Areas) Act 1990(327), or (c) section 26AA of the Planning (Hazardous Substances) Act 1990(328),
may be granted against a person whose identity is unknown to the applicant; and in the following provisions of this rule such an injunction against such a person is referred to as “an injunction under paragraph (1)”, and the person against whom it is sought is referred to as “the respondent”.
(2) An applicant for an injunction under paragraph (1) shall, describe the respondent by reference to—
(a) a photograph, (b) a thing belonging to or in the possession of the respondent, or (c) any other evidence,
with sufficient particularity to enable service to be effected, and the form of the claim form used shall be modified accordingly.
(3) An applicant for an injunction under paragraph (1) shall file evidence by witness statement or affidavit—
(a) verifying that he was unable to ascertain, within the time reasonably available to him, the respondent’s identity.
(b) setting out the action taken to ascertain the respondent’s identity and (c) verifying the means by which the respondent has been described in the claim form and
that the description is the best that the applicant is able to provide. (4) Paragraph (2) is without prejudice to the power of the court to make an order in accordance
with CPR Part 6 for service by an alternative method or dispensing with service.
Leasehold Reform Act 1967(329)
Rule 8. (1) In this rule a section referred to by number means the section so numbered in the Leasehold Reform Act 1967 and “Schedule 2” means Schedule 2 to that Act.
(2) Where a tenant of a house and premises desires to pay money into court pursuant to section 11 (4) or section 13 (1) or (3)—
(a) he shall file in the office of the appropriate court a witness statement or affidavit stating— (i) the reasons for the payment into court,
(ii) the house and premises to which the payment relates and the name and address of the landlord, and
(iii) so far as they are known to the tenant, the name and address of every person who is or may be interested in or entitled to the money;
(b) on the filing of the witness statement or affidavit the tenant shall pay the money into court and the court officer shall enter the matter in the records of the court and send notice of
(326)1990 c. 8; section 187B was amended by the Planning and Compensation Act 1991 (c. 34), section 3; and section 214A was amended by the section 23(7) of that Act.
(327)1990 c. 9; section 44A was amended by the Planning and Compensation Act 1991 (c. 34), section 25, schedule 3, Part 1, paragraph 7.
(328)1990 c. 10; section 26AA was inserted by the Planning and Compensation Act 1991 (c. 34), section 25, schedule 3, Part I, paragraph 15.
(329)1967 c. 88; section 11 was amended by the Rentcharges Act 1977 (c. ), section 17(2), schedule 2. Section 21 was amended by the Housing Act 1980 (c. 51), sections 142, 152, schedule 22, Part II, paragarph 8, schedule 26; by the County Courts Act 1984 (c. 28), section 148(1), schedule 2, Part V, paragraph 31; by the Leasehold Reform, Housing and Urban Development Act 1993 (c. 28), section 187(1), schedule 21, paragraph 4; and by the Housing Act 1996 (c. 52), sections 115. 116, schedule 11, paragraph 1(2).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
440
the payment to the landlord and to every person whose name and address are given in the witness statement or affidavit pursuant to sub-paragraph (a)(iii);
(c) any subsequent payment into court by the landlord pursuant to section 11 (4) shall be made to the credit of the same account as the payment into court by the tenant and sub- paragraphs (a) and (b) shall apply as if for the references to the tenant and the landlord there were substituted references to the landlord and the tenant respectively.
(d) the appropriate court for the purposes of sub-paragraph (a) shall be the court for the district in which the property is situated or, if the payment into court is made by reason of a notice under section 13 (3), any other county court specified in the notice.
(3) Where the proceedings on an application are ordered to be transferred to a leasehold valuation tribunal under section 21 (3), the court shall—
(a) send notice of the transfer to all parties to the application; and (b) send to the leasehold valuation tribunal copies certified by the district judge of all entries
in the records of the court relating to the application, together with the order of transfer and all documents filed in the proceedings.
(4) Where an application is made under section 17 or 18 for an order for possession of a house and premises the respondent shall—
(a) forthwith after being served with the application, serve on every person in occupation of the property or part of it under an immediate or derivative sub-tenancy, a notice informing him of the proceedings and of his right under paragraph 3 (4) of Schedule 2 to appear and be heard in the proceedings with the permission of the court, and
(b) within 14 days after being served with the application, file an answer stating the grounds, if any, on which he intends to oppose the application and giving particulars of every such sub-tenancy.
Leasehold Reform, Housing and Urban Development Act 1993(330)
Rule 9. (1) In this rule— (a) “the 1993 Act” means the Leasehold Reform, Housing and Urban Development Act 1993; (b) a section or Schedule referred to by number means the section or Schedule so numbered
in the 1993 Act; and (c) expressions used in this rule have the same meaning as they have in the 1993 Act.
(2) Where an application is made under section 23 (1) by a person other than the reversioner— (a) on the issue of the application, the applicant shall send a copy of the application to the
reversioner; (b) the applicant shall promptly inform the reversioner either—
(i) of the court’s decision; or (ii) that the application has been withdrawn.
(3) Where an application is made under section 26 (1) or (2) or section 50 (1) or (2) it shall be made by the issue of a claim form which must not be served on any other person to the district judge, who may grant or refuse it or give directions for its future conduct, including the addition as respondents of such persons as appear to have an interest in it.
(4) Where an application is made under section 26 (3), it shall be made by the issue of a claim form and—
(330)1993 c. 28; section 26 was amended by the Housing Act 1996 (c. 52).
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
441
(a) the applicants shall serve notice of the application on any person who they know or have reason to believe is a relevant landlord, giving particulars of the application and the return date and informing that person of his right to be joined as a party to the proceedings;
(b) the landlord whom it is sought to appoint as the reversioner shall be a respondent to the application, and shall file an answer;
(c) a person on whom notice is served under sub-paragraph (a) shall be added as a respondent to the proceedings when he gives notice in writing to the court of his wish to be added as party, and the court shall notify all other parties of the addition.
(5) Where a person wishes to pay money into court under section 27 (3), section 51 (3) or paragraph 4 of Schedule 8, rule 8 (2) shall apply as it applies to payments into court made under the Leasehold Reform Act 1967, subject to the following modifications—
(a) references in rule 8 to the payment of money into court by a tenant shall be construed as references to the person or persons making a payment into court under the 1993 Act;
(b) the reference in rule 8 (2)(a)(ii) to “house and premises” shall be construed as a reference to the interest or interests in the premises to which the payment into court relates, or, where the payment into court is made under section 51 (3), to the flat to which it relates;
(c) the witness statement or affidavit filed by the tenant under rule 8(2)(a) shall include details of any vesting order; and
(d) the appropriate court for the purposes of that sub-paragraph shall be— (i) where a vesting order has been made, the court which made the vesting order; or
(ii) where no such order has been made, the court in whose district the premises are situated.
(6) Where an order is made under section 91 (4), rule 8 (3) (transfer to leasehold valuation tribunal) shall apply as it applies on the making of an order under section 21 (3) of the Leasehold Reform Act 1967.
(7) Where a relevant landlord acts independently under Schedule 1, paragraph 7, he shall be entitled to require any party to proceedings under the 1993 Act (as described in paragraph 7 (1)(b) of Schedule 1) to supply him, on payment of the reasonable costs of copying, with copies of all documents which that party has served on the other parties to the proceedings.
Local Government Finance Act 1982(331)
Rule 10. (1) In this rule a section referred to by number means the section so numbered in the Local Government Finance Act 1982.
(2) Proceedings in a county court under section 19 or section 20 shall be commenced in the court for the district in which the principal office of the body to whose accounts the application relates (in this rule referred to as “the body concerned”) is situated.
(3) A claim form for a declaration under section 19 (1) shall state the facts on which the applicant intends to rely at the hearing of the application and the respondents to the application shall be the body concerned and any person against whom an order is sought under section 19 (2).
(4) An appeal under section 19 (4) or section 20 (3) against a decision of an auditor shall be brought within 28 days of the receipt by the appellant of the auditor’s statement of the reasons for his decision.
(331)1982 c. 32; sections 19 and 20 were amended by the National Health Service and Community Care Act 1990 (c. 19), section 20, schedule 4, paragraphs 9 and 10; by the Education Reform Act 1988 (c. 40), section 237(2), schedule 13, Part I; by the Police and Magistrates' Courts Act 1994 (c. 29), section 43, schedule 4, Part I, paragraphs 26 and 27; by the Police Act 1996 (c. 16), section 103(1), schedule 7, Part 1, paragraph 1, and by the Police Act 1997 (c. 50), section 88, schedule 6, paragraphs 19 and 21; and by S.I. 1991/724 and 1996/3141.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
442
(5) The notice of appeal to which paragraph (4) relates shall state— (a) the reasons stated by the auditor for his decision; (b) the date on which the appellant received the auditor’s statement; (c) the facts on which the appellant intends to rely at the hearing of the appeal; and (d) in the case of a decision not to apply for a declaration, such facts within the appellant’s
knowledge as will enable the court to consider whether to exercise the powers conferred on it by section 19 (2).
(6) The respondents to the appeal shall be:— (i) the auditor who for the time being has responsibility for the audit of the accounts of the body
concerned; (ii) the body concerned; and
(iii) in the case of an appeal against a decision not to certify under section 20 (1) that a sum or amount is due from any person, that person.
(7) The court may at any stage of an application or appeal under section 19 or section 20 direct that any officer or member of the body concerned be added to the proceedings as a respondent.
Local Government (Miscellaneous Provisions) Act 1976(332)
Rule 11. A person who appeals against a notice under section 21, 23 or 35 of the Local Government (Miscellaneous Provisions) Act 1976 shall state in his notice of appeal the grounds of the appeal and where one of those grounds is that it would have been fairer to serve the notice on another person or, as the case may be, that it would be reasonable for the whole or part of the expenses to which the notice relates to be paid by some other person, that person shall be made a respondent to the appeal, less the court on the application of the appellant made without notice, otherwise directs.
Mental Health Act 1983(333)
Rule 12. (1) In this rule— a section referred to by number means the section so numbered in the Mental Health Act 1983 and “Part II” means Part II of that Act;
“place of residence” means, in relation to a patient who is receiving treatment as an in-patient in a hospital or other institution, that hospital or institution; “hospital authority” means the managers of a hospital as defined in section 145 (1).
(2) An application to a county court under Part II shall be made by a claim form filed in the court for the district in which the patients' place of residence is situated or, in the case of an application made under section 30 for the discharge or variation of an order made under section 29, in that court or in the court which made the order.
(3) Where an application is made under section 29 for an order that the functions of the nearest relative of the patient shall be exercisable by some other person—
(a) the nearest relative shall be made a respondent to the application unless the application is made on the grounds set out in subsection (3)(a) of the said section or the court otherwise orders, and
(b) the court may order that any other person, not being the patient, shall be made a respondent.
(332)1976 c. 57; section 23 was amended by S.I. 1996/3071. Section 35 was amended by the Local Government Act 1985 (c. 51), section 102(2), schedule 17 and by S.I. 1996/3071.
(333)1983 c. 20; section 145(1) was amended by the Health Authorities Act 1995 (c. 17), section 2(1), schedule 1, Part III, paragraph 107; by the National Health Service and Community Care Act 1990 (c. 19), section 66(1), schedule 9, paragraph 24(9); and by the Mental Health (Amendment) Act 1994 (c. 6), section 1.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
443
(4) On the hearing of the application the court may accept as evidence of the facts stated therein any report made by a medical practitioner and any report made in the course of his official duties by—
(a) a probation officer, or (b) an officer of a local authority or of a voluntary organisation exercising statutory functions
on behalf of a local authority, or (c) an officer of a hospital authority:
Provided that the respondent shall be told the substance of any part of the report bearing on his fitness or conduct which the judge considers to be material for the fair determination of the application.
(5) Unless otherwise ordered, an application under Part II shall be heard and determined by the court sitting in private.
(6) For the purpose of determining the application the judge may interview the patient either in the presence of or separately from the parties and either at the court or elsewhere, or may direct the district judge to interview the patient and report to the judge in writing.
Mobile Homes Act 1983(334)
Rule 13. (1) An application— (a) under section 1 or 2 of the Mobile Homes Act 1983; or (b) pursuant to paragraph 4, 5 or 6 of Part I of Schedule 1 to that Act; or (c) with respect to any question arising under paragraph 8 (1) or 9 of the same Part of that
Schedule, shall be made by a claim form and the respondent shall file an answer.
(2) Any application to which paragraph 1 (b) applies may include an application for an order enforcing the rights mentioned in section 3 (1)(b) of the Caravan Sites Act 1968(335).
(3) Any application to which this rule applies may be heard and determined by the district judge and may, if the court thinks fit, be dealt with in private.
Post Office Act 1969(336)
Rule 15. (1) An application under section 30 (5) of the Post Office Act 1969 for permission to bring proceedings in the name of the sender or addressee of a postal packet or his personal representatives shall be made by a claim form.
(2) The respondents to the application shall be the Post Office and the person in whose name the applicant seeks to bring proceedings.
Rentcharges Act 1977(337)
Rule 16. Where for the purposes of section 9 of the Rentcharges Act 1977 the sum required to redeem a rentcharge is to be paid into the county court, it shall be paid into the court for the district in which the land affected by the rentcharge or any part thereof is situated.
Sex Discrimination Act 1975 and Race Relations Act 1976
Rule 17. (1) In this rule—
(334)1983 c. 34. (335)1968 c. 52; section was amended by the Criminal Justice Act 1982 (c. 48), sections 38, 46. (336)1969 c. 48. (337)1977 c. 30.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
444
(a) “the Act of 1975” and “the Act of 1976” mean respectively the Sex Discrimination Act 1975(338) and the Race Relations Act 1976(339);
(b) in relation to proceedings under either of those Acts expressions which are used in the Act concerned have the same meanings in this rule as they have in that Act;
(c) in relation to proceedings under the Act of 1976 “court” means a designated county court and “district” means the district assigned to such a court for the purposes of that Act.
(2) A claimant who brings a claim under section 66 of the Act of 1975 or section 57 of the Act of 1976 shall forthwith give notice to the Commission of the commencement of the proceedings and file a copy of the notice.
(3) CPR Rule 35.15 shall have effect in relation to an assessor who is to be appointed in proceedings under section 66 (1) of the Act of 1975.
(4) Proceedings under section 66, 71 or 72 of the Act of 1975 or section 57, 62 or 63 of the Act of 1976 may be commenced—
(a) in the court for the district in which the defendant resides or carries on business; or (b) in the court for the district in which the act or any of the acts in respect of which the
proceedings are brought took place. (5) An appeal under section 68 of the Act of 1975 or section 59 of the Act of 1976 against a
requirement of a non-discrimination notice shall be brought in the court for the district in which the acts to which the requirement relates were done.
(6) Where the claimant in any claim alleging discrimination has questioned the defendant under section 74 of the Act of 1975 or section 66 of the Act of 1976—
(a) either party may make an application to the court in accordance with CPR Part 23 to determine whether the question or any reply is admissible under that section; and
(b) CPR Rule 3.4, shall apply to the question and any answer as it applies to any statement of case.
(7) Where in any claim the Commission claim a charge for expenses incurred by them in providing the claimant with assistance under section 75 of the Act of 1975 or section 66 of the Act of 1976—
(a) the Commission shall, within 14 days after the determination of the claim, give notice of the claim to the court and the claimant and thereafter no money paid into court for the benefit of the claimant, so far as it relates to any costs or expenses, shall be paid out except in pursuance of an order of the court, and
(b) the court may order the expenses incurred by the Commission to be assessed whether by the summary or detailed procedure as if they were costs payable by the claimant to his own solicitor for work done in connection with the proceedings.
(8) Where an application is made for the removal or modification of any term of a contract to which section 77 (2) of the Act of 1975 or section 72 (2) of the Act of 1976 applies, all persons affected shall be made respondents to the application, unless in any particular case the court otherwise directs, and the proceedings may be commenced—
(a) in the court for the district in which the respondent or any of the respondents resides or carries on business; or
(b) in the court for the district in which the contract was made.
(338)1975 c. 65; section 66 was amended by the Race Relations Act 1976 (c. 74), section 79(4), schedule 4, paragraph 5; by the County Courts Act 1984 (c. 28), section 148(1), schedule 2, Part V, paragraph 55; and by S.I. 1996/438.
(339)1976 c. 74.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
445
Solicitors Act 1974(340)
Rule 18. Any application under Part III of the Solicitors Act 1974 may be heard and determined by the district judge and may, if the court thinks fit, be dealt with in private.
Telecommunications Act 1984(341)
Rule 18A. (1) CPR Rule 35.15 applies to proceedings under paragraph 5 of Schedule 2 to the Telecommunications Act 1984.
Applications under section 19 of the Trade Marks Act 1994(342)
Rule 18B. The CPR Patents Court Practice direction shall apply with the necessary modifications to proceedings brought under section 19 of the Trade Marks Act 1994 in a county court.
Trade Union and Labour Relations Consolidation Act 1992(343)
Rule 19. (1) Where a complainant desires to have an order of the Certification Officer under section 82 of the Trade Union and Labour Relations Consolidation Act 1992 recorded in the county court, he shall produce the order and a copy thereof to the court for the district in which he resides or the head or main office of the trade union is situate.
(2) The order shall be recorded by filing it, and the copy shall be sealed and dated and returned to the complainant.
(3) The sealed copy shall be treated as if it were the notice of issue in a claim begun by the complainant.
(4) The costs, if any, allowed for recording the order shall be recoverable as if they were payable under the order.
(5) The order shall not be enforced until proof is given to the satisfaction of the court that the order has not been obeyed and, if the order is for payment of money, of the amount remaining unpaid.
Trustee Act 1925, s.63(344)
Rule 20. (1) Any person wishing to make a payment into court under section 63 of the Trustee Act 1925 shall make and file in the office of the appropriate court a witness statement or an affidavit setting out—
(a) a brief description of the trust and of the instrument creating it or, as the case may be, of the circumstances in which the trust arose;
(b) so far as known to him, the names and addresses of the persons interested in or entitled to the money or securities to be paid into court;
(c) his submission to answer all such inquiries relating to the application of such money or securities as the court may make or direct;
(d) his place of residence, and (e) an address where he may be served with any notice or application relating to such money
or securities. (2) The appropriate court for the purposes of paragraph (1) shall be the court for the district in
which the person or any of the persons making the payment into court resides.
(340)1974 c. 47. (341)1984 c. 12. (342)1994 c. 26. (343)1992 c. 52. (344)1925 c. 19; section 63 was amended by the Administration of Justice Act 1965 (c. 2), section 36(4), schedule 3.
Document Generated: 2014-03-12 Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format.
446
(3) The costs incurred in the payment into court shall be assessed by the detailed procedure and the amount of the assessed costs may be retained by the person making the payment into court.
(4) The district judge may require, in addition to the witness statement or affidavit, such evidence as he thinks proper with regard to the matter in respect of which the payment into court is made.
(5) On the making of the payment into court the court shall send notice thereof to each person mentioned in the witness statement or affidavit pursuant to paragraph (1)(b).
(6) An application for the investment or payment out of court of any money or securities paid into court under paragraph (1) may be made without notice but on the hearing of the application the court may require notice to be served on such person as it thinks fit and fix a day for the further hearing.
(7) No witness statement or affidavit in support of the application shall be necessary in the first instance but the court may direct evidence to be adduced in such manner as it thinks fit.
(8) The application may be heard and determined by the district judge. (9) Paragraphs (6) to (8) are without prejudice to any provision of the County Court Funds Rules
enabling or requiring the court to transfer money from a deposit to an investment account of its own motion.
EXPLANATORY NOTE
(This note is not part of the Rules)
These Rules provide a new code of civil procedure for the civil courts. They replace the Rules of the Supreme Court 1965 and the County Court Rules 1981. As well as the main body of the new rules (Parts 1—48), they also provide for certain specialist proceedings (Part 49) and transitional provisions (Part 51); the details of these are contained in practice directions. Part 50 introduces schedules to the Rules containing those provisions of the former rules of court which for the time being are re-enacted as part of the Civil Procedure Rules but without substantial changes.