Form of writ (O.6, r.1). 6/1 1. Every writ must be in Form 1 in Appendix A.
Indorsement of claim (O.5, r.2). 6/2 2. - (1) Before a writ is issued it must be indorsed - (a) with a statement of claim or, if the statement of claim is not indorsed on the writ, with a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby; (b) where the claim made by the plaintiff is for a debt or liquidated demand only, with a statement of the amount claimed in respect of the debt or demand and for costs and also with a statement that further proceedings will be stayed if, within the time limited for acknowledging service, the defendant pays the amount so claimed to the plaintiff, his solicitor or agent; (c) where the claim made by the plaintiff is for possession of land, with a statement showing - (i) whether the claim relates to a dwelling-house; and (ii) if it does, whether the rateable value of the premises on every day specified by section 4 (2) of the Rent Act 1977 in relation to the premises exceeds the sum so specified; (d) where the action is brought to enforce a right to recover possession of goods, with a statement showing the value of the goods.
Indorsement as to capacity (O.6, r.3). 6/3 3. - (1) Before a writ is issued it must be indorsed - (a) where the plaintiff sues in a representative capacity, with a statement of the capacity in which he sues; (b) where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued.
Indorsement as to place where cause of action arose (O.6, r.4). 4. Where a writ is to be issued out of a District Registry and any cause of action in respect of which relief is claimed by the writ wholly or in part arose in a place in the district of that Registry, the writ may be indorsed with a statement to that effect before it is issued. In relation to a writ in the Chancery Division which is to be issued out of one of the Chancery district registries, this rule shall have effect as if for the reference to the district of that registry there were substituted a reference to the area of the circuit within which that registry is situate, and the Northern and North Eastern Circuits shall be treated for this purpose as one circuit.
Indorsement as to solicitor and address (O.6, r.5). 5. - (1) Before a writ is issued, it must be indorsed - (a) where the plaintiff sues by a solicitor, with the plaintiff's address and the solicitor's name or firm and a business address of his within the jurisdiction and also (if the solicitor is the agent of another) the name or firm and business address of his principal; (b) where the plaintiff sues in person, with the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent. (2) The address for service of a plaintiff shall be - (a) where he sues by a solicitor, the business address of the solicitor indorsed on the writ or where there are two such addresses so indorsed, the business address of the solicitor who is acting as agent for the other; (b) where he sues in person, the address within the jurisdiction indorsed on the writ. (3) Where a solicitor's name is indorsed on a writ, he must, if any defendant who has been served with or who has acknowledged service of the writ requests him in writing so to do, declare in writing whether the writ was issued by him or with his authority or privity. (4) If a solicitor whose name is indorsed on a writ declares in writing that the writ was not issued by him or with his authority or privity, the Court may on the application of any defendant who has been served with or who has acknowledged service of the writ, stay all proceedings in the action begun by the writ.
Concurrent writ (O.6, r.6). 6. - (1) One or more concurrent writs may, at the request of the plaintiff, be issued at the time when the original writ is issued or at any time thereafter before the original writ ceases to be valid. (2) Without prejudice to the generality of paragraph (1) a writ for service within the jurisdiction may be issued as a concurrent writ with one which is to be served out of the jurisdiction and a writ which is to be served out of the jurisdiction may be issued as a concurrent writ with one for service within the jurisdiction. (3) A concurrent writ is a true copy of the original writ with such differences only (if any) as are necessary having regard to the purpose for which the writ is issued.
Issue of writ (O.6, r.7). 6/7 7. - (1) No writ which is to be served out of the jurisdiction shall be issued without the leave of the court unless it complies with the following conditions, that is to say - (a) each claim made by the writ is either - (i) on which by virtue of the Civil Jurisdiction and Judgments Act 1982 the Court has power to hear and determine, or (ii) one which by virtue of any other enactment the 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; and (b) where a claim made by the writ in one which the Court has power to hear and determine by virtue of the Civil Jurisdiction and Judgments Act 1982, the writ is indorsed before it is issued with a statement that the Court has power under that Act to hear and determine the claim, and that no proceedings involving the same cause of action are pending between the parties in Scotland, Northern Ireland or another Convention territory. (2) Except where otherwise expressly provided by these Rules, a writ may be issued out of: (a) the Central Office if it relates to proceedings intended to be conducted in the Queen's Bench Division; or (b) Chancery Chambers if it relates to proceedings intended to be conducted in the Chancery Division; or (c) a district registry. (3) Issue of writ takes place upon its being sealed by an officer of the office out of which it is issued. (4) The officer by whom a concurrent writ is sealed must mark it as a concurrent writ with an official stamp. (5) No writ shall be sealed unless at the time of tender thereof for sealing the person tendering it leaves at the office at which it is tendered a copy thereof signed, where the plaintiff sues in person, by him or, where he does not so sue, by or on behalf of his solicitor. (6) For the purpose of this rule, "Convention territory" means the territory or territories of any Contracting State, as defined by section 1 (3) of that Act, to which the Conventions defined in section 1 (1) of that Act apply.
Duration and renewal of writ (O.6, r.8). 8. - (1) For the purpose of service, a writ (other than a concurrent writ) invalid in the first instance for twelve months beginning with the date of issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ. (2) Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding twelve months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application for extension is made to the Court before that day or such later day (if any) as the Court may allow. (3) Before a writ, the validity of which has been extended under this rule, is served, it must be marked with an official stamp showing the period for which the validity of the writ has been so extended. (4) Where the validity of a writ is extended by order made under this Rule, the order shall operate in relation to any other writ (whether original or concurrent) issued in the same action which has not been served so as to extend the validity of that other writ until the expiration of the period specified in the order.
Mode of acknowledgning service (O.12, r.1). 12/1 1.- (Subject to paragraph (2) and to Order 80, rule 2, a defendant to an action begun by writ may (whether or not he is sued as a trustee or personal representative or in any other representative capacity) acknowledge service of the writ and defend the action by a solicitor or in person. (2) The defendant to such an action who is a body corporate may acknowledge service of the writ and give notice of intention for defend the action either by a solicitor or by a person duly authorised to act on the defendant's behalf but, except as aforesaid or as expressly provided by any enactment, such a denfendant may not take steps in the acion otherwise than by a solicitor. (3) Service of a writ may be acknowledged by properly completing an acknowledgement of service, as defined by rule 3, and handling it in at, or sending it by post to, the appropriate office, that is to say, if the writ was issued out of an office of the Supreme Court at the Royal Courts of Justice, that office, or if the writ was issued out of a district registry that registry. (4) If two or more defendants to an action acknowledge service by the same solicitor and at the same time, only one acknowledgement of service need be completed and delivered for those defendants. (5) The date on which service is acknowledged is the date on which the acknowledgment of service is received at the appropriate office.
Acknowledgement of service (O.12, r.3). 3. -(1) An acknowledgment of service must be in Form No. 14 or 15 in Appendix A, whichever is appropriate, and, except as provided in rule 1(2) must be signed by the solicitor acting for the defendant specified in the acknowledgment or, if the defendant is acting in person, by that defendant. (2) An acknowledgment of service must specify - (a) in the case of a defendant acknowledging service in person, the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent, and (b) in the case of defendant acknowledging service by a solicitor, a business address of his solicitor's within the jurisdiction; and where the defendant acknowledges service in person, the address within the jurisdiction specified under sub-paragraph (a) shall be his address for service, but otherwise his solicitor's business address shall be his address for service. In relation to a body corporate the references in sub-paragraph (a) to the defendant's place of residence shall be construed as references to the defendant's registered or principal office. (3) Where the defendant acknowledges service by a solicitor who is acting as agent for another solicitor who is acting as agent for annother solicitor having a place of business within the jurisdiction, the acknowledgment of service must state that the first-named solicitor so acts and must also state the name and address of that other solicitor. (4) If an acknowledgment of service does not specify the defendant's address for service or the Court is satisfied that any address specified in the acknowledgment if service is not genuine, the Court may on application by the plaintiff set aside the acknowledgment or order the defendant to give an address or, as the case may be, a genuine address for service and may in any case direct that the acknowledgment shall nevertheless have effect for the purposes of Order 10, rule 1(5) and Order 65, rule 9.
Procedure on receipt of acknowledgment of service (O.12, r.4). 4. On receiving an acknowledgment of service an officer of the appropriate office must - (a) affix to the acknowledgment an official stamp showing the date on which he received it; (b) enter the acknowledgment in the cause book with a note showing, if it be the case, that the defendant has indicated in the acknowledgment an intention to contest to proceedings or to apply for a stay of execution in respect of any judgment obtained against him in the proceedings; (c) make a copy of the acknowledgment, having affixed to it an official stamp showing the date on which he received the acknowledgment, and send it by post to the plaintiff or, as the case may be, his solicitor at the plaintiff's address for service.
Time limited for acknowledging service (O.12, r. 5). 12/5 5. References in these Rules to the time limited for acknowledging service are references - (a) in the case of a writ served within the jurisdiction, to fourteen days after service of the writ (including the day of service) or, where that time has been extended by or by virtue of these Rules, to that time as so extended; and (b) in the case of a writ, served out of the jurisdiction, to the time limited under Order 10, Rule 2(2) Order 11, Rule 1(3) or Order 11, Rule 4(4) or, where that time has been extended as aforesaid, to that time as so extended.
Late acknowledgment of service (O.12, r.6). 12/6 6. - (1) Except with the leave of the Court, a defendant may not give notice of intention to defend in an action after judgment has been obtained therein. (2) Except as provided by paragraph (1) nothing in these rules or any writ order thereunder shall be construed as precluding a defendant from acknowledging service in an action after the time limited for so doing, but if a defendant acknowledges service after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other act later than if he had acknowledged service within that time.
Acknowledgment not to constitute waiver (O.12, r.7). 7. The acknowledgment by a defendant of service of a writ shall not be treated as a waiver by him of any irregularity in the writ or service thereof or in any order giving leave to serve the writ out of the jurisdiction or extending the validity of the writ for the purpose of service.
Dispute as to jurisdiction (O.12, r.8). 8. - (1) A defendant who wishes to dispute the jurisdiction of the court in the proceedings by reason of any such irregularity as is mentioned in rule 7 or on any other ground shall give notice of intention to defend the proceedings and shall, within the time limited for service of a defence, apply to the Court for - (a) an order setting aside the writ or service of the writ on him, or (b) an order declaring that the writ has not been duly served on him, or (c) the discharge of any order giving leave to serve the writ on him out of the jurisdiction, or (d) the discharge of any order extending the validity of the writ for the purpose of service, or (e) the protection or release of any property of the defendant seized or threatened with seizure in the proceedings, or (f) the discharge of any order made to prevent any dealing with any property of defendant, or (g) a declaration that in the circumstances of the case the court has no jurisdiction over the defendant in respect of the subject matter of the claim or the relief or remedy sought in the action, or (h) such other relief as may be appropiate. (2) [Revoked by R.S.C. (Amendment No.2) 1983 (S.I. 1983 No.1811)]. (3) An application under paragraph (1) must be made - (a) in an Admiralty action in rem, by motion; (b) in any other action in the Queen's Bench Division, by summons; (c) in any other action, by summons or motion, and notice of motion or summons must state the grounds of the application. (4) An application under paragraph (1) must be supported by an affidavit verifying the facts on which the application is based and a copy of the affidavit must be served with the notice of motion or summons by which the application is made. (5) Upon hearing an application under paragraph (1) the Court, if it does not dispose of the matter in dispute, may give such directions for its disposal as may be appropriate, including directions for the trial thereof as a preliminary issue. (6) A defendant who makes an application under paragraph (1) shall not be treated as having submitted to the jurisdiction of the court by reason of his having notice of intention to defend the action; and if the Court makes no order on the application or dismisses it, the notice shall cease to have effect, but the defendant may, subject to rule 6(1) lodge a further acknowledgment of service and in that case paragraph (7) shall apply as if the defendant had not made any such application. (7) Except where the defendant makes an application in accordance with paragraph (1) the acknowledgment by a defendant of service of a writ shall, unless the acknowledgment is withdrawn by leave of the Court under Order 21, rule 1, be treated as a submission by the defendant to the jurisdiction of the Court in the proceedings.
Acknowlegment of service of originating summons (O. 12, r.9). 9. - (1) Each defendant named in and served with an originating summons (other than an ex parte originating summons or an originating summons Order 113) must acknowledge service of the summons as if it were a writ. (2) Where an originating summons is issued out of principal registry of the Family Division, the appropriate office for acknowledgning service is that registry. (3) The foregoing rules of this Order shall apply in relation to an originating summons (other than an ex parte originating summons or an originating summons under Order 113) as they apply to a writ except that after the word "extended," wherever it occurs in rule 5(a) there shall be inserted the words "or abridged" and for the reference in rule 5(b) to Order 11, rules 1(3) and 4(4) there shall be substituted a reference to Order 11, rule 9(6).
Acknowledgment of service to be treated as entry of appearance (O.12, r.10). 10. For the purpose of any enactment referring expressly or impliedly to the entry of appearance as a procedure provided by rules of court for responding to a writ or other process issuing out of the High Court, or of any rule of law, the acknowledgment of service of the writ or other process in accordance with these rules shall be treated as the entry of an appearance to it, and related expressions shall be construed accordingly.
Prescribed time (O.13, r.6A). 6A. In the foregoing rules of this Order "the prescribed time" in relation to a writ issued against a defendant means the time limited for the defendant to acknowledge service of the writ or, if within that time the defendant has returned to the appropriate office an acknowledgment of service containing a statement to the effect that he does not intend to contest the the proceedings, the date on which the acknowledgment was received at the appropriate office.
Proof of service of writ (O.13, r.7). 7. - (1) Judgment shall not be entered against a defendant under this Order unless - (a) The defendant has acknowledged service on him of the writ; or (b) an affidavit is filed by or on behalf of the plaintiff proving due service of the writ on the defendant; or (c) the plaintiff produces the writ indorsed by the defendant's solicitor with a statement that he accepts service of the writ on the defendant's behalf. (2) Where, in an action begun by writ, an application is made to the Court for an order affecting a party who has failed to acknowledge service, the Court hearing the application may require to be satisfied in such manner as it thinks fit that the party is in default of acknowledgment of service. (3) Where, after judgment has been entered under this Order against a defendant purporting to have been served by post under Order 10, rule 1 (2) (a) the copy of the writ sent to the defendant is returned to the plaintiff through the post, undelivered to the addressee, the plaintiff, shall, before taking any step or further step in the action or the enforcement of the judgment either - (a) make a request for the judgment to be set aside on the ground that the writ has not been duly served, or (b) apply to the Court for directions. (4) A request under paragraph (3) (a) shall be made by producing to an officer of the office in which the judgment was entered, and leaving with him for filing, an affidavit stating the relevant facts, and thereupon the judgment shall be set aside and the entry of the judgment and of any proceedings for its enforcement made in the book kept in the office for that purpose shall be marked accordingly. (5) An application under paragraph (3) (b) shall be made ex parte by affidavit stating the facts on which the application is founded and any order or direction sought, and on the application the Court may - (a) set aside the judgment; or (b) direct that, notwithstanding the return of the copy of the writ, it shall be treated as having been duly served, or (c) make such other order and give such other direction as the circumstances may require.
Application by plaintiff for summary judgment (O.14, r.1). 1. - (1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant. (2) Subject to paragraph (3) this rule applies to every action begun by writ in the Queen's Bench Division (including the Admiralty Court) or the Chancery Division other than - (a) an action which includes a claim by the plaintiff for libel, slander, malicious prosecution or false imprisonment, (b) an action which includes a claim by the plaintiff based on an allegation of fraud, or (c) an Admiralty action in rem. (3) This Order shall not apply to an action to which Order 86 applies.
Manner in which application under Rule 1 must be made (O.14, r.2). 2. - (1) An application under rule 1 must be made by summons supported by an affidavit verifying the facts on which the claim, or the part of a claim, to which the application relates is based and stating that in the deponent's belief there is no defence to that claim or part, as the case may be, or no defence except as to the amount of any damages claimed. (2) Unless the Court otherwise directs, an affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof. (3) The summons, a copy of the affidavit in support and of any exhibits referred to therein must be served on the defendant not less than 10 clear days before the return day.
Judgment for plaintiff (O.14, r.3). 3. - (1) Unless on the hearing of an application under Rule 1 either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed. (2) The Court may by order, and subject to such conditions, if any, as may be just, stay execution of any judgment given against a defendant under this rule until after the trial of any counterclaim made or raised by the defendant in the action.
Leave to defend (O.14, r.4). 4. - (1) A defendant may show cause against an application under Rule 1 by affidavit or otherwise to the satisfaction of the Court. (2) Rule 2 (2) applies for the purposes of this Rule as it applies for the purposes of that rule. (3) The Court may give a defendant against whom such an application is made leave to defend the action with respect to the claim, or the part of a claim, to which the application relates either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit. (4) On the hearing of such an application the Court may order a defendant showing cause or, where that defendant is a body corporate, any director, manager, secretary or other similar officer thereof, or any person purporting to act in any such capacity - (a) to produce any document; (b) if it appears to the Court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath.
Set-off and counterclaim - If the defence of set-off be raised, the defendant is entitled to unconditional leave to defend up to the amount of the set-off claimed. As to the defence of set-off, see O.18, r.17. The defence of set-off may be raised in respect of debt or damages, whether the amount is ascertained or not and whether it is also added as a counterclaim, see O.18, r.17. The principle is that the plaintiff should give credit for the amount of the set-off in his action against the defendant and ought not to insist upon his claim without taking the set-off into account. A set-off may consist of a set-off of mutual debts, or the setting up of matters of complaint which, if established, reduce or even extinguish the claim, or the setting up of an equitable set-off. If therefore the defendant raises a bona fide defence alleging breaches of the agreement sued on, whether in respect of work done or goods supplied or otherwise, he is entitled to to leave to defend. Moreover, where the defendant sets up a bona fide counterclaim arising out of the same subject-matter of the action, and connected with the grounds of defence, the order should not be for judgment on the claim subject to a stay of execution pending the trial of the counterclaim, but should be for unconditional leave to defend, even if the defendant admits the whole or part of the claim. On the other hand, the mere fact that the defendant has a counterclaim does not necessarily entitle him to leave to defend. Where there is clearly no defence to the plaintiff's claim, so that the plaintiff should not be put to the trouble and expense of proving it, but the defendant sets up a plausible counterclaim for an amount not less than the plaintiff's claim, the order should not be for leave to defend but should be for judgment for the plaintiff on the claim with costs, with a stay of execution until the trial of the counterclaim or pending further order. Under r.3 (2) the court has express power to stay execution on any judgment against a defendant pending the trial of any counterclaim made or raised by him in the action. Where judgment is given for plaintiff on the claim with stay pending disposal of the counterclaim the onus of bringing the counterclaim to a hearing rests with the counterclaiming defendant and not with the plaintiff. If the amount of set-off or counterclaim exceeds the plaintiff's claim, the defendant is entitled to leave to defend or a stay of execution, as the case may be, in respect of the whole claim, while if it is less, the plaintiff is entitled to judgment for the difference. It therefore behoves the defendant to particularise the amount of his set-off or counterclaim or to specify or indicate how it is made up or calculated, so that the Court should have material on which to make the proper order.
Application for summary judgment on counterclaim (O.14, r.15). 5. - (1) Where a defendant to an action in the Queen's Bench Division (including the Admiralty Court) or Chancery Division begun by writ has served a counterclaim on the plaintiff, then, subject to paragraph (3) the defendant may, on the ground that the plaintiff has no defence to a claim made in the counterclaim, or to a particular part of such a claim, apply to the Court for judgment against the plaintiff on that claim or part. (2) Rules 2, 3 and 4 shall apply in relation to an application under this Rule as they apply in relation to an application under Rule 1 but with the following modifications, that is to say - (a) references to the plaintiff and defendant shall be construed as references to the defendant and plaintiff respectively; (b) the words in Rule 3 (2) "any counterclaim made or raised by the defendant in" shall be omitted; and (c) the reference in Rule 4 (3) to the action shall be construed as a reference to the counterclaim to which the application under this Rule relates. (3) This Rule shall not apply to a counterclaim which includes any such claim as is referred to in Rule 1 (2).
Directions (O.14, r.6). 6. - (1) Where the Court - (a) orders that a defendant or a plaintiff have leave (whether conditional or unconditional) to defend an action or counterclaim, as the case may be, with respect to a claim or a part of a claim, or (b) gives judgment for a plaintiff or a defendant on a claim or part of a claim but also orders that execution of the judgment be stayed pending the trial of a counterclaim or of the action, as the case may be, the Court shall give directions as to the further conduct of the action, and Order 25, Rules 2 to 7, shall, with the omission of so much of Rule 7(1) as requires parties to serve a notice specifying the orders and directions which they require and with any other necessary modifications, apply as if the application under Rule 1 of this Order or Rule 5 thereof, as the case may be, on which the order was made were a summons for directions. (2) In particular, and if the parties consent, the Court may direct that the claim in question and any other claim in the action be tried by a Master under the provisions of these Rules relating to the trial of causes or matters or questions or issues by Masters.
Costs (O.14, r.7). 7. - (1) If the plaintiff makes an application under Rule 1 where the case is not within this Order or if it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, then, without prejudice to Order 62, and, in particular, to Rule 4 (1) thereof, the Court may dismiss the application with costs and may, if the plaintiff is not an assisted person, require the costs to be paid by him forthwith. (2) The Court shall have the same power to dismiss an application under Rule 5 as it has under paragraph (1) to dismiss an application under Rule 1, and that paragraph shall apply accordingly with the necessary modifications.
Right to proceed with residue of action or counterclaim (O.14, r.8). 8. - (1) Where on an application under Rule 1 the plaintiff obtains judgment on a claim or a part of a claim against any defendant, he may proceed with the action as respects any other claim or as respects the remainder of the claim or against any other defendant. (2) Where on an application under Rule 5 a defendant obtains judgment on a claim or part of a claim made in a counterclaim against the plaintiff, he may proceed with the counterclaim as respects any other claim or as respects the remainder of the claim or against any other defendant to the counterclaim.
Setting aside judgment (O.14, r.11). 11. Any judgment given against a party who does not appear at the hearing of an application under rule 1 or rule 5 may be set aside or varied by the Court on such terms as it thinks just.
Order 15 Causes of Action, Counterclaims and Parties. Joinder of causes of action. 1. - (1) Subject to rule 5 (1), a plaintiff may in one action claim relief against the same defendant in respect of more than one cause of action - (a) if the plaintiff claims, and the defendant is alleged to be liable, in the same capacity in respect of all the causes of action, or (b) if the plaintiff claims or the defendant is alleged to be liable in the capacity of executor or administrator of an estate in respect of one or more of the causes of action and in his personal capacity but with reference to the same estate in respect of all the others, or (c) with the leave of the court. (2) An application for leave under this rule must be made ex parte by affidavit before the issue of the writ or originating summons, as the case may be, and the affidavit must state the grounds of the application.
Counterclaim against plaintiff. 2. - (1) Subject to rule 5 (2) , a defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action, make a counterclaim in respect of that matter; and where he does so he must add the counterclaim to his defence. (2) Rule 1 shall apply in relation to a counterclaim as if the counterclaim were a separate action and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant. (3) A counterclaim may be proceeded with notwithstanding that judgment is given for the plaintiff in the action or that the action is stayed, discontinued or dismissed. (4) Where a defendant establishes a counterclaim against the claim of the plaintiff and there is a balance in favour of one of the parties, the court may give judgment for the balance, so, however, that this provision shall not be taken as affecting the court's discretion with respect to costs.
Counterclaim agaisnt additional parties (O.15, r.13). 15/3 3. - (1) Where a defendant to an action who makes a counterclaim against the plaintiff alleges that any other person (whether or not a party to the action) is liable to him along with the plaintiff in respect of the subject-matter of the counterclaim, or claims against such other person any relief relating to or connected with the original subject-matter of the action, then, subject to rule 5 (2) he may join that other person as a party against whom the counterclaim is made. (2) Where a defendant joins a person as a party against whom he makes a counterclaim, he must add that person's name to the title of the action and serve on him a copy of the counterclaim, and, in the case of a person who is not already a party to the action, a form of acknowledgment of service in Form No.14 in Appendix A with such modification as the circumstances may require; and a person on whom a copy of a counterclaim is served under this paragraph shall, if he is not already a party to the action, become a party to it as from the time of service with the same rights in respect of his defence to the counterclaim and otherwise as if he had been duly sued in the ordinary way by the party making the counterclaim. (3) A defendant sho is required by paragraph (2) to serve a copy of the counterclaim made by him on any person who before service is already a party to the action must do so within the period within which, by virtue of Order 18, rule 2, he must serve on the plaintiff the defence to which the counterclaim is added. (4) The appropriate office for acknowledging service of a counterclaim by a person who is not already a party to the action is the central office, except that, where the action is proceeding in the Chancery Division or a district registry, or is an Admiralty action which is not proceeding in a district registry, the appropriate office is Chancery Chambers, the district registry in question or the Admiralty Registry, as the case may be. (5) Where by virtue of paragraph (2) a copy of a counterclaim is required to be served on a person who is not already a party to the action, the following provisions of these rules, namely, Order 10, Order 11, Orders 12 and 13 and Order 75, rule 4, shall, subject to the last foregoing paragraph, apply in relation to the counterclaim and the proceedings arising from it as if - (a) the counterclaim were a writ and the proceedings arising from it an action; and (b) the party making the counterclaim were a plaintiff and the party against whom it is made a defendant in that action. (6) A copy of a counterclaim required to be served on a person who is not already a party to the action must be indorsed with a notice, in Form No.17 in Appendix A, addressed to that person.
Joinder of parties. 4. - (1) Subject to rule 5 (1), two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the court or where - (a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions, and (b) all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions. (2) Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any Act and unless the court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the court on an application for leave under this paragraph, be made a defendant. This paragraph shall not apply to a probate action.
Court may order separate trials, etc. 5. - (1) If claims in respect of two or more causes of action are included by a plaintiff in the same action or by a defendant in a counterclaim, or if two or more plaintiffs or defendants are parties to the same action, and it appears to the court that the joinder of causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the court may order separate trials or make such other order as may be expedient. (2) If it appears on the application of any party against whom a counterclaim is made that the subject-matter of the counterclaim ought for any reason to be disposed of by a separate action, the court may order the counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient.
Third Party and Similar Proceedings. Third party notice. 1. - (1) Where in any action a defendant who has given notice of intention to defend (a) claims against a person not already a party to the action any contribution or indemnity; or (b) claims against such a person any relief or remedy relating to or connected with the original subject-matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or (c) requires that any question or issue relating to or connected with the original subject-matter of the action should be determined not only as between the plaintiff and the defendant but also as between either or both or them and a person not already a party to the action; then, subject to paragraph (2), the defendant may issue a notice in Form No. 20 or 21 in Appendix A, whichever is appropriate (in this Order referred to as a third party notice), containing a statement of the nature of the claim made against him and, as the case may be, either of the nature and grounds of the claim made by him or of the question or issue required to be determined. (2) A defendant to an action may not issue a third party notice without the leave of the court unless the action was begun by writ and he issues the notice before serving his defence on the plaintiff. (3) Where a third party notice is served on the person against whom it is issued, he shall as from the time of service be a party to the action (in this Order referred to as a third party) with the same rights in respect of his defence against any claim made against him in the notice and otherwise as if he had been duly sued in the ordinary way by the defendant by whom the notice is issued.
Application for leave to issue third party notice. 2. - (1) Application for leave to issue a third party notice may be made ex parte but the court may direct a summons for leave to be issued. (2) An application for leave to issue a third party notice must be supported by an affidavit stating - (a) the nature of the claim made by the plaintiff in the action; (b) the stage which proceedings in the action have reached; (c) the nature of the claim made by the applicant or particulars of the question or issue required to be determined, as the case may be, and the facts on which the proposed third party notice is based; and (d) the name and address of the person against whom the third party notice is to be issued.
Service of statement of claim (O.18, r.1). 1. Unless the Court gives leave to the contrary or a statement of claim is indorsed on the writ, the plaintiff must serve a statement of claim on the defendant or, if there are two or more defendants, on each defendant, and must do so either when the writ is served on that defendant or at any time after service of the writ but before the expiration of 14 days after that defendant gives notice of intention to defend.
Service of defence (O.18, r.2). 2. - (1) Subject to paragraph (2) a defendant who gives notice of intention to defend an action must, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 14 days after the time limited for acknowledging service of the writ or after the statement of claim is served on him, whichever is the later. (2) If a summons under Order 14, rule 1, or under Order 86, rule 1, is served on a defendant before he serves his defence, paragraph (1) shall not have effect in relation to him unless by the order made on the summons he is given leave to defend the action and, in that case, shall have effect as if it required him to serve his defence within 14 days after the making of the order or within such other period as may be specified therein.
Severing defences - If there are several defendants and their interests are not identical, if, for instance, one has a special defence peculiar to himself, they should sever (i.e. they should serve separate defences). If they do not serve separate defences, they cannot be represented by different counsel at the trial; though if they serve different defences, they may nevertheless appear by the same counsel at the trial. Only that defendant who serves a separate defence is liable for any special or extra costs occasioned thereby unless the other adopts his defence with its consequences.
Service of reply and defence to counterclaim (O.18, r.3). 3. - (1) A plaintiff on whom a defendant aserves a defence must serve a reply on that defendant if it is needed for compliance with Rule 8; and if no reply is served, Rule 14 (1) will apply. (2) A plaintiff on whom a defendant serves a counterclaim must, if he intends to defend it, serve on that defendant a defence to counterclaim. (3) Where a plaintiff serves both a reply and a defence to counterclaim on any defendant, he must include them in the same document. (4) A reply to any defence must be served by the plaintiff before the expiration of 14 days after the service on him of that defence, and a defence to counterclaim must be served by the plaintiff before the expiration of 14 days after the service on him of the counterclaim to which it relates.
Unlike the former rules, this rule distinguishes sharply between a "reply" and a "defence to counterclaim," and at the same time it defines the circumstances in which a reply is necessary. Both are pleadings which it is for the plaintiff to serve, the reply in answer to the defence, and the defence to counterclaim in answer to the counterclaim. If, as is more often the case, the plaintiff desires to answer both the defence and the counterclaim, he must serve only one document incorporating both the reply and the defence to the counterclaim (para. (3)). The practice is to entitle the whole pleading, "reply and defence to counterclaim," but to divide it into two sections, the first headed "reply" and the second headed "defence to counterclaim," but with a continuous numbering of the paragraphs in both sections.
Pleadings subsequent to reply (O.18, r.4). 4. No pleading subsequent to a reply or a defence to counterclaim shall be served except with the leave of the Court.
Pleadings: formal requirements (O.18, r.6). 6. - (1) Every pleading in an action must bear on its face - (a) the year in which the writ in the action was issued and the letter and number of the action, (b) the title of the action, (c) the division of the High Court to which the action is assigned and the name of the judge (if any) to whom it is assigned, (d) the description of the pleading, and (e) the date on which it was served. (2) Every pleading must, if necessary, be divided into paragraphs numbered consecutively, each allegation being so far as convenient contained in a separate paragraph. (3) Dates, sums and other numbers must be expressed in a pleading in figures and not in words. (4) Every pleading of a party must be indorsed - (a) where the party sues or defends in person, with his name and address; (b) in any other case, with the name or firm and business address of the solicitor by whom it was served and also (if the solicitor is the agent of another) the name or firm and business address of his principal. (5) Every pleading of a party must be signed by counsel, if settled by him, and, if not, by the party's solicitor or by the party, if he sues or defends in person.
Facts, not evidence, to be pleaded (O.18, r.7). 7. - (1) Subject to the provisions of this rule, and rules 7A, 10, 11 and 12, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits. (2) Without prejudice to paragraph (1) the effect of any document or the purport of any conversation referred to in the pleading must, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material. (3) A party need not plead may fact if it is presumed by law to be true or the burden of disproving it lies on the other party, unless the other party has specifically denied it in his pleading. (4) A statement that a thing has been done or that an event has occurred, being a thing or event the doing or occurrence of which, as the case may be, constitutes a condition precedent necessary for the case of a party is to be implied in his pleading.
Conviction, etc. to be adduced in evidence: matters to be pleaded (O.18, r.7A). 7A. - (1) If any action which is to be tried with pleadings any party intends, in reliance on section 11 of the Civil Evidence Act 1968 (convictions as evidence in civil proceedings) to adduce evidence that a person was convicted of an offence by or before a court in the United Kingdom or by a court-martial there or elsewhere, he must include in his pleading a statement of his intention with particulars of - (a) the conviction and the date thereof, (b) the court or court-martial which made the conviction, and (c) the issue in the proceedings to which the conviction is relevant. (2) If in any action which is to be tried with pleadings any party intends, in reliance on section 12 of the said Act of 1968 (findings of adultery and paternity as evidence in civil proceedings) to adduce evidence that a person was found guilty of adultery in matrimonial proceedings or was adjudged to be the father of a child in affiliation proceedings before a court in the United Kingdom, he must include in his pleading a statement of his intention with particulars of - (a) the finding or adjudication and the date thereof, (b) the court which made the finding or adjudication and the proceedings in which it was made, and (c) the issue in the proceedings to which the finding or adjudication is relevant. (3) Where a party's pleading includes such a statement as is mentioned in paragraph (1) or (2) then if the opposite party - (a) denies the conviction, finding of adultery or adjudication of parternity to which the statement relates, or (b) alleges that the conviction, finding or adjudication was erroneous, or (c) denies that the conviction, finding or adjudication is relevant to any issue in the proceedings, he must make the denial or allegation in his pleading.
Matters which must be specifically pleaded (O.18, r.8). 8. - (1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality - (a) which he alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the preceding pleading. (2) Without prejudice to paragraph (1) a defendant to an action for the recovery of land must plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant is not sufficient. (3) A claim for exemplary damages must be specifically pleaded together with the facts on which the party pleading relies. (4) A party must plead specifically any claim for interest under section 35A of the Act or otherwise.
Departure (O.18, r.10). 10. - (1) A party shall not in any pleading make an allegation of fact, or raise any new ground or claim, inconsistent with a previous pleading of his. (2) Paragraph (1) shall not be taken as prejudicing the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative.
Particulars of pleading (O.18, r.12). 12. - (1) Subject to paragraph (2) every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words - (a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and (b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies. (2) Where it is necessary to give particulars of debt, expenses or damages and those particulars exceed 3 folios, they must be set out in a separate document referred to in the pleading and the pleading must state whether the document has already been served and, if so, when, or is to be served with the pleading. (3) The Court may order a party to serve on any other party particulars of any claim, defence of other matter stated in his pleading, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just. (4) Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of paragraph (3) the Court may, on such terms as it thinks just, order that party to serve on any other party - (a) where he alleges knowledge, particulars of the facts on which he relies, and (b) where he alleges notice, particulars of the notice. (5) An order under this rule shall not be made before service of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason. (6) Where the applicant for an order under this rule did not apply by letter for the particulars he requires, the Court may refuse to make the order unless of opinion that there were sufficient reasons for an application by letter not having been made. (7) Where particulars are given pursuant to a request, or order of the Court, the request or order shall be incorporated with the particulars, each item of the particulars following immediately after the corresponding item of the request or order.
Admissions and denials (O.18, r.13). 13. - (1) Subject to paragraph (4) any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under Rule 14 operates as a denial of it. (2) A traverse may be made either by a denial or by a statement of non-admission and either expressly or by necessary implication. (3) Subject to paragraph (4) every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to counterclaim, as the case may be; and a general denial of such allegations, or a general statement of non-admission of them, is not a sufficient traverse of them. (4) Any allegation that a party has suffered damage and any allegation as to the amount of damages is deemed to be traversed unless specifically admitted.
Denial by joinder of issue (O.18, r.14). 14. - (1) If there is no reply to a defence, there is an implied joinder of issue on that defence. (2) Subject to paragraph (3) - (a) there is at the close of pleadings an implied joinder of issue on the pleading last served, and (b) a party may in his pleading expressly join issue on the next preceding pleading. (3) There can be no joinder of issue, implied or express, on a statement of claim or counterclaim. (4) A joinder of issue operates as a denial of every material allegation of fact made in the pleading on which there is an implied or express joinder of issue unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation.
Statement of claim (O.18, r.15). 15. - (1) A statement of claim must state specifically the relief or remedy whcih the plaintiff claims; but costs need not be specifically claimed. (2) A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned; but, subject to that, a plaintiff may in his statement of claim alter, modify or extend any claim made by him in the indorsement of the writ without amending the indorsement. (3) Every statement of claim must bear on its face a statement of the date on which the writ in the action was issued.
Defence of set-off (O.18, r.17). 17. Where a claim by a defendant to a sum of money (whether of an ascertained amount or not) is relied on as a defence to the whole or part of a claim made by the plaintiff, it may be included in the defence and set-off against the plaintiff's claim, whether or not it is also added as a counterclaim.
Counterclaim and defence to counterclaim (O.18, r.18). 18. Without prejudice to the general application of this Order to a counterclaim and a defence to counterclaim, or to any provision thereof which applies to either of those pleadings specifically - (a) Rule 15 (1) shall apply to a counterclaim as if the counterclaim were a statement of claim and the defendant making it a plaintiff;. (b) Rules 8 (2), 16 and 17 shall, with the necessary modifications apply to a defence to counterclaim as they apply to a defence.
Striking out pleadings and indorsements (O.18, r.19). 19. - (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that - (a) it discloses no reasonable cause of action or defence, as the case may be; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the court; and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (2) No evidence shall be admissible on an application under paragraph (1) (a). (3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading.
Close of pleadings (O.18, r.20). 20. - (1) The pleadings in an action are deemed to be closed - (a) at the expiration of 14 days after service of the reply or, if there is no reply but only a defence to counterclaim, after service of the defence to counterclaim, or (b) if neither a reply nor a defence to counterclaim is served, at the expiration of 14 days after service of the defence. (2) The pleadings in an action are deemed to be closed at the time provided by paragraph (1) notwithstanding that any request or order for particulars has been made but has not been complied with at that time.
Trial without pleadings (O.18, r.21). 21. - (1) Where in an action to which this Rule applies any defendant has given notice of intention to defend in the action, the plaintiff or that defendant may apply to the Court by summons for an order that the action shall be tried without pleadings or further pleadings, as the case may be. (2) If, on the hearing of an application under this Rule, the Court is satisfied that the issues in dispute between the parties can be defined without pleadings or further pleadings, or that for any other reason the action can properly be tried without pleadings or further pleadings, as the case may be, the Court shall order the action to be so tried, and may direct the parties to prepare a statement of the issues in dispute or, if the parties are unable to agree such a statement, may settle the statement itself. (3) Where the Court makes an order under paragraph (2) it shall, and where it dismisses an application for such an order, it may, give such directions as to the further conduct of the action as may be appropriate, and Order 25, rules 2 to 7, shall, with the omission of so much of rule 7 (1) as requires parties to serve a notice specifying the orders and directions which they desire and with any other necessary modifications, apply as if the application under this Rule were a summons for directions. (4) This Rule applies to every action begun by writ other than one which includes - (a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or (b) a claim by the plaintiff based on an allegation of fraud.
Amendment of judgment and orders (O.20, r.11). 11. Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion or summons without an appeal.
Payment into court (O.22, r.1). 1. - (1) In any action for a debt or damages any defendant may at any time pay into Court a sum of money in satisfaction of the cause of action in respect of which the plaintiff claims or, where two or more causes of action are joined in the action, a sum of sums of money in satisfaction of any or all of those causes of action. (2) On making any payment into Court under this Rule, and on increasing any such payment already made, the defendant must give notice thereof in Form No.23 in Appendix A to the plaintiff and every other defendant (if any); and within three days after receiving the notice the plaintiff must send the defendant a written acknowledgment of its receipt. (3) A defendant may, without leave, give notice of an increase in a payment made under this Rule but, subject to that and without prejudice to paragraph (5) a notice of payment may not be withdrawn or amended without the leave of the Court which may be granted on such terms as may be just. (4) Where two or more causes of action are joined in the action and money is paid into Court under this Rule in respect of all, or some only of, those causes of action, the notice of payment - (a) must state that the money is paid in respect of all those causes of action or, as the case may be, must specify the cause or causes of action in respect of which the payment is made, and (b) where the defendant makes separate payments in respect of each, or any two or more, of those causes of action, must specify the sum paid in respect of that cause or, as the case may be, those causes of action. (5) Where a single sum of money is paid into Court under this Rule in respect of two or more causes of action, then, if it appears to the Court that the plaintiff is embarrassed by the payment, the Court may, subject to paragraph (6) order the defendant to amend the notice of payment so as to specify the sum paid in respect of each cause of action. (6) Where a cause of action under the Fatal Accidents Act 1976 and a cause of action under the Law Reform (Miscellaneous Provisions) Act, 1934 are joined in an action, with or without any other cause of action, the causes of action under the said Acts shall, for the purpose of paragraph (5) be treated as one cause of action. (7) Where - (a) an action proceeding in a district registry is being tried at a town within the district of another district registry or at the Royal Courts of Justice, or (b) an action proceeding in the Royal Courts of Justice is being tried at a town within the district of a district registry, any payment into court under this rule made after the trial or hearing has begun may, if the defendant so desires, be made at the district registry within the district of which the town is situated or, if the action is being tried at the Royal Courts of Justice, in the same manner as if the action were proceeding there. (8) For the purposes of this rule, the plaintiff's cause of action in respect of a debt or damages shall be construed as a cause of action in respect, also, of such interest as might be included in the judgment, whether under section 35A of the Act or otherwise, if judgment were given at the date of the payment into Court.
Acceptance of money paid into Court (O.22, r.3). 3. - (1) Where money is paid into Court under Rule 1, then subject to paragraph (2) within 21 days after receipt of the notice of payment or, where more than one payment has been made or the notice of the last payment or the amended notice but, in any case, before the trial or hearing of the action begins, the plaintiff may - (a) where the money was paid in respect of the cause of action or all the causes of action in respect of which he claims, accept the money in satisfaction of that cause of action or those causes of action, as the case may be, or (b) where the money was paid in respect of some only of the causes of action in respect of which he claims, accept in satisfaction of any such cause or causes of action the sum specified in respect of that cause or those causes of action in the notice of payment, by giving notice in Form No.24 in Appendix A to every defendant to the action. (2) Where after the trial or hearing of an action has begun - (a) money is paid into court under rule 1, or (b) money in court is increased by a further payment into court under that rule, the plaintiff may accept the money in accordance with paragraph (1) within 2 days after receipt of the notice of payment or notice of the further payment, as the case may be, but, in any case, before the judge begins to deliver judgment or, if the trial is with a jury, before the judge begins his summing up. (3) Rule 1(5) shall not apply in relation to money paid into court in an action after the trial or hearing of the action has begun. (4) On the plaintiff accepting any money paid into court all further proceedings in the action or in respect of the specified cause or causes of action, as the case may be, to which the acceptance relates, both against the defendant making the payment and against any other defendant sued jointly with or in the alternative to him shall be stayed. (5) Where money is paid into court by a defendant who made a counterclaim and the notice of payment stated, in relation to any sum so paid, that in making the payment the defendant had taken into account and satisfied the cause or causes of action, or the specified cause or causes of action in respect of which he claimed, then, on the plaintiff accepting that sum, all further proceedings on the counterclaim or in respect of the specified cause or causes of action, as the case may be, against the plaintiff shall be stayed. (6) A plaintiff who has accepted any sum paid into court shall, subject to rules 4 and 10 and Order 80, rule 12, be entitled to receive payment of that sum in satisfaction of the cause or causes of action to which the acceptance relates.
Order for payment out of money accepted required in certain cases (O.22, r.4). 4. - (1) Where a plaintiff accepts any sum paid into Court and that sum was paid into Court - (a) by some but not all of the defendants sued jointly or in the alternative by him, or (b) with a defence of tender before action, or (c) in an action to which Order 80, Rule 13, applies , or (d) in satisfaction either of causes of action arising under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934, or of a cause of action arising under the first mentioned Act where more than one person is entitled to the money, the money in Court shall not be paid out except under paragraph (2) or in pursuance of an order of the Court, and the order shall deal with the whole costs of the action or of the cause of action to which the payment relates, as the case may be. (2) Where an order of the Court is required under pragraph (1) by reason only or paragraph (1)(a) then if, either before of after accepting the money paid into Court by some only of the defendants sued jointly or in the alternative by him, the plaintiff discontinues the action against all other defendants and those defendants consent in writing to the payment out of that sum, it may be paid out without an order of the Court. (3) Where after the trial or hearing of an action has begun a plaintiff accepts any money paid into court and all further proceedings in the action or in respect of the specified cause or causes of action, as the case may be, to which the acceptance relates are stayed by virtue of rule 3(4) then, notwithstanding anything in paragraph (2) the money shall not be paid out except in pursuance of an order of the Court, and the order shall deal with the whole costs of the action.
Money remaining in court (O.22, r.5). 5. If any money paid into court in an action is not accepted in accordance with Rule 3, the money remaining in court shall not be paid out except in pursuance of an order of the Court which may be made at any time before, at or after the trial or hearing of the action; and where such an order is made before the trial or hearing the money shall not be paid out except in satisfaction of the cause or causes of action in respect of which it was paid in.
Non-disclosure of payment into court (O.22, r.7). 7. Except in an action to which a defence of tender before action is pleaded, and except in an action all further proceedings in which are stayed by virtue of rule 3(4) after the trial or hearing has begun, the fact that money has been paid into court under the foregoing provisions of this Order shall not be pleaded and no communication of that fact shall be made to the Court at the trial or hearing of the action or counterclaim or of any question or issue as to the debt or damages until all questions of liability and of the amount of debt or damages have been decided.
Money paid into court under order (O.22, r.8). 8. - (1) Subject to paragraph (2), money paid into court under an order of the Court or a certificate of a master or associate shall not be paid out except in pursuance of an order of the Court. (2) Unless the Court otherwise orders, a party who has paid money into court in pursuance of an order made under Order 14 - (a) may by notice to the other party appropriate the whole or any part of the money and any additional payment, if necessary, to any particular claim made in the writ or counterclaim, as the case may be, and specified in the notice, or (b) if he pleads a tender, may by his pleading appropriate the whole or any part of the money as payment into court of the money alleged to have been tendered; and money appropriated in accordance with this rule shall be deemed to be money paid into court in accordance with rule 1 or money paid into court with a plea of tender, as the case may be, and this Order shall apply accordingly.
Discovery and Inspection of Documents. Mutual discovery of documents. 1. - (1) After the close of pleadings in an action begun by writ there shall, subject to and in accordance with the provisions of this Order be discovery by the parties to the action of the documents which are or have been in their possession, custody or power relating to matters in question in the action. (2) Nothing in this Order shall be taken as preventing the parties to an action agreeing to dispense with or limit the discovery of documents which they would otherwise be required to make to each other.
Discovery by parties without order. 2.- (1) Subject to the provisions of this rule and of rule 4, the parties to an action between whom pleadings are closed must make discovery by exchanging lists of documents and, accordingly, each party must, within 14 days after the pleadings in the action are deemed to be closed as between him and any other party, make and serve on that other party a list of the documents which are or have been in his possession, custody or power relating to any matter in question between them in the action. Without prejudice to any directions given by the court under Order 16, rule 4, this paragraph shall not apply in third party proceedings, including proceedings under that Order involving fourth or subsequent parties. (2) Unless the court otherwise orders, a defendant to an action arising out of an accident on land due to a collision or apprehended collision involving a vehicle shall not make discovery of any documents to the plaintiff under paragraph (1). (3) Paragraph (1) shall not be taken as requiring a defendant to an action for the recovery of any penalty recoverable by virtue of any enactment to make discovery of any documents. (4) Paragraphs (2) and (3) shall apply in relation to a counterclaim as they apply in relation to an action but with the substitution, for the reference in paragraph (2) to the plaintiff, of a reference to the party making the counterclaim. (5) On the application of any party required by this rule to make discovery of documents, the court may - (a) order that the parties to the action or any of them shall make discovery under paragraph (1) of such documents or classes of documents only, or as to such only of the matters in question, as may be specified in the order, or (b) if satisfied that discovery by all or any of the parties is not necessary, or not necessary at that stage of the action, order that there shall be no discovery of documents by any or all of the parties either at all or at that stage; and the court shall make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the action or for saving costs. (6) An application for an order under paragraph (5) must be by summons, and the summons must be taken out before the expiration of the period within which by virtue of this rule discovery of documents in the action is required to be made. (7) Any party to whom discovery of documents is required to be made under this rule may, at any time before the summons for directions in the action is taken out, serve on the party required to make such discovery a notice requiring him to make an affidavit verifying the list he is required to make under paragraph (1), and the party on whom such a notice is served must, within 14 days after service of the notice, make and file an affidavit in compliance with the notice and serve a copy of the affidavit on the party by whom the notice was served.
Order for discovery. 3. - (1) Subject to the provisions of this rule and of rules 4 and 8, the court may order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to make and serve on any other party a list of the documents which are or have been in his possession, custody or power relating to any matter in question in the cause or matter, and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party. (2) Where a party who is required by rule 2 to make discovery of documents fails to comply with any provision of that rule, the court, on the application of any party to whom the discovery was required to be made, may make an order against the first-mentioned party under paragraph (1) of this rule or, as the case may be, may order him to make and file an affidavit verifying the list of documents he is required to make under rule 2 and to serve a copy thereof on the applicant. (3) An order under this rule may be limited to such documents or classes of document only, or to such only of the matters in question in the cause or matter, as may be specified in the order.
Summons for Directions. 1. - (1) With a view to providing in every action to which this rule applies, an occasion for the consideration by the court of the preparations for the trial of the action, so that - (a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with, and (b) such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thererof, the plaintiff must, within one month after the pleadings in the action are deemed to be closed, take out a summons (in these rules referred to as a summons for directions) returnable in not less than 14 days. (2) This rule applies to all actions begun by writ except - (a) actions in which the plaintiff or defendant has applied for judgment under Order 14, or in which the plaintiff has applied for judgment under Order 86, and directions have been given under the relevant Order; (b) actions in which the plaintiff or defendant has applied under Order 18, rule 21, for trial without pleadings or further pleadings and directions have been given under that rule; (c) actions in which an order has been made under Order 24, rule 4, for the trial of an issue or question before discovery; (d) actions in which directions have been given under Order 29 rule 7; (e) actions in which an order for the taking of an account has been made under Order 43, rule 1; (f) actions in which an application for transfer to the commercial list is pending; (g) actions which have been referred for trial to an official referee; (h) actions for the infringement of a patent; (i) actions ordered to be tried as Admiralty short causes; and (j) actions for personal injuries for which automatic directions are provided by rule 8. (3) Where, in the case of any action in which discovery of documents is required to be made by any party under Order 24, rule 2, the period of 14 days referred to in paragraph (1) of that rule is extended, whether by consent or by order of the Court or both by consent and by order, paragraph (1) of this rule shall have effect in relation to that action as if for the reference therein to one month after the pleadings in the action are deemed to be closed there were substituted a reference to 14 days after the expiration of the period referred to in paragraph (1) of the said rule 2 as so extended. (4) If the plaintiff does not take out a summons for direction in accordance with the foregoing provisions of this rule, the defendant or any defendant may do so or apply for an order to dismiss the action. (5) On an application by a defendant to dismiss the action under paragraph (4) the court may either dismiss the action on such terms as may be just or deal with the application as if it were a summons for directions. (6) In the case of an action which is proceeding only as respects a counterclaim, references in this rule to the plaintiff and defendant shall be construed respectively as references to the party making the counterclaim and the defendant to the counterclaim.
Admissions and agreements to be made. 4. At the hearing of the summons for directions, the court shall endeavour to secure that the parties make all admissions and all agreements as to the conduct of the proceedings which ought reasonably to be made by them and may cause the order on the summons to record any admissions or agreements so made, and (with a view to such special order, if any, as to costs as may be just being made at the trial) any refusal to make any admission or agreement.
Admission of case of other party (O.27, r.1). 1. Without prejudice to Order 18, rule 13, a party to a cause or matter may give notice, by his pleading or orherwise in writing, that he admits the truth of the whole or any part of the case of any other party.
Notice to admit (O.27, r.2). 2. - (1) A party to a cause or matter may not later than 21 days after the cause or matter is set down for trial serve on any other party a notice requiring him to admit, for the purpose of that cause or matter only, such facts or such part of his case as may be specified in the notice. (2) An admission made in compliance with a notice under this rule shall not be used against the party by whom it was made in any cause or matter other than the cause or matter for the purpose of which it was made or in favour of any person other than the person by whom the notice was given, and the Court may at any time allow a party to amend or withdraw an admission so made by him on such terms as may be just.
Judgment on admissions (O.27, r.3). 3. Where admissions of fact or of part of a case are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties and the Court may give such judgment or make such order, on the application as it thinks just. An application for an order under this rule may be made by motions or summons.
Application for injunction (O.29, r.1). 1. - (1) An application for the grant of an injunction may be made by any party to a cause or matter before or after the trial of the cause or matter, whether or not a claim for the injunction was included in that party's writ, originating summons, counterclaim or third party notice, as the case may be. (2) Where the applicant is the plaintiff and the case is one of urgency such application may be made ex parte on affidavit but, except as aforesaid, such application must be made by motion or summons. (3) The plaintiff may not make such an application before the issue of the writ or originating summons by which the cause or matter is to be begun except where the case is one of urgency, and in that case the injunction applied for may be granted on terms providing for the issue of the writ or summons and such other terms, if any, as the Court thinks fit.
Detention, preservation, etc., of subject-matter of cause or matter (O.29, r.2). 2. - (1) On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject-matter of the cause or matter, or as to which any question may arise therein, or for the inspection of any such property in the possession of a party to the cause or matter. (2) For the purpose of enabling any order under paragraph (1) to be carried out the Court may by the order authorise any person to enter upon any land or building in the possession of any party to the cause or matter. (3) Where the right of any party to a specific fund is in dispute in a cause or matter, the Court may, on the application of a party to the cause or matter, order the fund to be paid into court or otherwise secured. (4) An order under this rule may be made on such terms, if any, as the Court thinks just. (5) An application for an order under this rule must be made by summons or by notice under Order 25, rule 7. (6) Unless the Court otherwise directs, an application by a defendant for such an order may not be made before he acknowledges service of the writ or originating summons by which the cause or matter was begun.
Setting Down for Trial Action Begun by Writ. Time for setting down action. 2.- (1) Every order made in an action which provides for trial before a judge shall, whether the trial is to be with or without a jury and wherever the trial is to take place, fix a period within which the plaintiff is to set down the action for trial. (2) Where the plaintiff does not, within the period fixed under paragraph (1), set the action down for trial, the defendant may set the action down for trial or may apply to the court to dismiss the action for want of prosecution and, on the hearing of any such application, the court may order the action to be dismissed accordingly or may make such order as it thinks just. (3) Every order made in an action in the Queen's Bench Division which provides for trial before a judge (ohterwise than in the commercial list or the special paper or any corresponding list which may be specified for the purposes of this paragraph by directions under rule 4) shall contain an estimate of the length of the trial and, if the action is to be tried at the Royal Courts of Justice, shall, subject to any such directions, specify the list in which the action is to be put.
Failure to appear by both parties or one of them (O.35, r.1). 1. - (1) If, when the trial of an action is called on, neither party appears, the action may be struck out of the list, without prejudice, however, to the restoration thereof, on the direction of a judge. (2) If, when the trial of an action is called on, one party does not appear, the judge may proceed with the trial of the action or any counterclaim in the absence of that party.
Judgment, etc. given in absence of party may be set aside (O.35, r.2). 2. - (1) Any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the Court, on the application of that party, on such terms as it thinks just. (2) An application under this rule must be made within 7 days after the trial.
Order of speeches (O.35, r.7). 7. - (1) The judge before whom an action is tried (whether with or without a jury) may give directions as to the party to begin and the order of speeches at the trial, and, subject to any such directions, the party to begin and the order of speeches shall be that provided by this rule. (2) Subject to paragraph (6) the plaintiff shall begin by opening his case. (3) If the defendant elects not to adduce evidence, then, whether or not the defendant has in the course of cross-examination of a witness for the plaintiff or otherwise put in a document, the plaintiff may, after the evidence on his behalf has been given, make a second speech closing his case and the defendant shall then state his case. (4) If the defendant elects to adduce evidence, he may, after any evidence on behalf of the plaintiff has been given, open his case and, after the evidence on his behalf has been given, make a second speech closing his case, and at the close of the defendant's case the plaintiff may make a speech in reply. (5) Where there are two or more defendants who appear separately or are separately represented, then - (a) if none of them elects to adduce evidence, each of them shall state his case in the order in which his name appears on the record; (b) if each of them elects to adduce evidence, each of them may open his case and the evidence on behalf of each of them shall be given in the order aforesaid and the speech of each of them closing his case shall be made in that order after the evidence on behalf of all the defendants has been given; (c) if some of them elect to adduce evidence and some do not, those who do not shall state their cases in the order aforesaid after the speech of the plaintiff in reply to the other defendants. (6) Where the burden of proof of all the issues in the action lies on the defendant or, where there are two or more defendants and they appear separately or are separately represented, on one of the defendants, the defendant or that defendant, as the case may be, shall be entitled to begin, and in that case paragraphs (2) (3) and (4) shall have effect in relation to, and as between, him and the plaintiff as if for references to the plaintiff and the defendant there were substituted references to the defendant and the plaintiff respectively. (7) Where, as between the plaintiff and any defendant, the party who would, but for this paragraph, be entitled to make the final speech raises any fresh point of law in that speech or cites in that speech any authority not previously cited, the opposite party may make a further speech in reply, but only in relation to that point of law or that authority, as the case may be.
General rule: witnesses to be examined orally (O.38, r.1). 1. Subject to the provisions of these rules and of the Civil Evidence Act 1968 and the Civil Evidence Act 1972, and any other enactment relating to evidence, any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open court.
Evidence by affidavit (O.38, r.2). 2. - (1) The Court may, at or before the trial of an action begun by writ, order that the affidavit of any witness may be read at the trial if in the circumstances of the case it thinks it reasonable so to order. (2) An order under paragraph (1) may be made on such terms as to the filing and giving of copies of the affidavits and as to the production of the deponents for cross-examination as the Court thinks fit but, subject to any such terms and to any subsequent order of the Court, the deponents shall not be subject to cross-examination and need not attend the trial for the purpose. (3) In any cause or matter begun by originating summons, originating motion or petition, and on any application made by summons or motion, evidence may be given by affidavit unless in the case of any such cause, matter or application any provision of these rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.
Limitation of expert evidence (O.38, r.4). 4. The Court may, at or before the trial of any action, order that the number of medical or other expert witnesses who may be called at the trial shall be limited as specified by the order.
Evidence of finding on foreign law (O.38, r.7). 7. - (1) A party to any cause or matter who intends to adduce in evidence a finding or decision on a question of foreign law by virtue of section 4 (2) of the Civil Evidence Act 1972 shall - (a) in the case of action to which Order 25, rule 1, applies, within 14 days after the pleadings in the action are deemed to be closed, and (b) in the case of any other cause or matter, within 21 days after the date on which an appointment for the first hearing of the cause or matter is obtained, or in either case, within such other period as the Court may specify, serve notice of his intention on every other party to the proceedings. (2) The notice shall specify the question on which the finding or decision was given or made and specify the document in which it is reported or recorded in citable form. (3) In any cause or matter in which evidence may be given by affidavit, an affidavit specifying the matters contained in paragraph (2) shall constitute notice under paragraph (1) if served within the period mentioned in that paragraph.
Depositions: when receivable in evidence at trial (O.38, r.9). 9. - (1) No deposition taken in any cause or matter shall be received in evidence at the trial of the cause or matter unless - (a) the deposition was taken in pursuance of an order under Order 39, rule 1, and (b) either the party against whom the evidence is offered consents or it is proved to the satisfaction of the Court that the deponent is dead, or beyond the jurisdiction of the Court or unable from sickness or other infirmity to attend the trial. (2) A party intending to use any deposition in evidence at the trial of a cause or matter must, a reasonable time before the trial, give notice of his intention to do so to the other party. (3) A deposition purporting to be signed by the person before whom it was taken shall be receivable in evidence without proof of the signature being the signature of that person.
Court documents admissible or receivable in evidence (O.38, r.10). 10. - (1) Office copies of writs, records, pleadings and documents filed in the High Court shall be admissible in evidence in any cause or matter and between all parties to the same extent as the original would be admissible. (2) Without prejudice to the provisions of any enactment, every document purporting to be sealed with the seal of any office or department of the Supreme Court shall be received in evidence without further proof, and any document purporting to be so sealed and to be a copy of a document filed in, or issued out of, that office or department shall be deemed to be an office copy of that document without further proof unless the contrary is shown.
Form and issue of writ of subpoena (O.38, r.14). 14. - (1) A writ of subpoena must be in Form No.28, 29, or 30 in Appendix A, whichever is appropriate. (2) Issue of a writ of subpoena takes place upon its being sealed by an officer of the office out of which it is issued. (3) Where a writ of subpoena is to be issued in a cause or matter which is not proceeding in a district registry, the appropriate office for the issue of the writ is the Central Office or, if the cause or matter has been set down for trial outside the Royal Courts of Justice, either the Central Office or the registry for the district comprising the city or town at which the cause or matter has been set down for trial. (4) Where a writ of subpoena is to be issued in a cause or matter which is proceeding in a district registry, the appropriate office for the issue of the writ is - (a) that registry, or (b) if the cause or matter has been set down for trial at a city or town not comprised in the district of that registry, either that registry or the registry for the district comprising that city or town, or (c) if the cause or matter has been set down for trial at the Royal Courts of Justice, either the Central Office or the registry in which the cause or matter is proceeding. (5) Before a writ of subpoena is issued a praecipe for the issue of the writ must be filed in the office out of which the writ is to issue; and the praecipe must contain the name and address of the party issuing the writ, if he is acting in person, or the name or firm and business address of that party's solicitor and also (if the solicitor is the agent of another) the name or firm and business address of his principal.
Interpretation and application (O.38, r.20). 20. - (1) In this Part of this Order "the Act" means the Civil Evidence Act 1968 and any expressions used in this Part of this Order and in Part I of the Act have the same meanings in this Part of this Order as they have in the said Part I. (2) This Part of this Order shall apply in relation to the trial or hearing of an issue or question arising in a cause or matter, and to a reference, inquiry and assesment of damages, as it applies in relation to the trial or hearing of a cause or matter.
Costs (O.38, r.32). 32. If - (a) a party to a cause or matter serves a counter-notice under rule 26 in respect of any person who is called as a witness at the trial of the cause or matter in compliance with a requirement of the counter-notice, and (b) it appears to the Court that it was unreasonable to require that person to be called as a witness, then, without prejudice to Order 62 and, in particular, to rule 7 (1) thereof, the Court may direct that any costs to that party in respect of the preparation and service of the counter-notice shall not be allowed to him and that any costs occasioned by the counter-notice to any other party shall be paid by him to that other party.
Form of judgment, etc. (O.42, r.1). 1. - (1) If, in the case of any judgment, a form thereof is prescribed by Appendix A the judgment must be in that form. (2) The party entering any judgment shall be entitled to have recited therein a statement of the manner in which, and the place at which, the writ or other originating process by which the cause or matter in question was begun was served. (3) Any order than a consent order to which rule 5A applies must be marked with the name of judge, referee or master by whom it was made and must be sealed.
Judgment, etc., requiring act to be done: time for doing it (O.42, r.2). 2. - (1) Subject to paragraph (2) a judgment or order which requires a person to do an act must specify the time after service of the judgment or order, or some other time, within which the act is to be done. (2) Where the act which any person is required by any judgment or order to do is to pay money to some other person, give possession of any land or deliver any goods, at time within which the act is to be done need not be specified in the judgment or order by virtue of paragraph (1) but the foregoing provision shall not affect the power of the Court to specify such a time and to adjudge or order accordingly.
Date from which judgment or order takes effect (O.42, r.3). 3. - (1) Subject to the provision of Rule 3A, a judgment or order of the Court or of an official or special referee takes effect form the day of its date. (2) Such a judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court or referee, as the case may be, orders it to be dated as of some other earlier or later day, in which case it shall be dated as of that other day.
Orders required to be drawn up (O.42, r. 4). 4. - (1) Subject to paragraph (2) every order of the Court shall be drawn up unless the Court otherwise directs. (2) And order - (a) which- (i) extends the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act, or (ii) grants leave for the doing of any of the acts mentioned in paragraph (3) and (b) which neither imposes any special terms nor includes any special directions other than a direction as to costs, need not be drawn up unless the Court otherwise directs. (3) The acts referred to in paragraph (2) (a) (ii) are - (a) the issue of any writ, other than a writ of summons for service out of the jurisdiction; (b) the amendment of a writ of summons or other originating process or a pleading; (c) the filing of any document; (d) any act to be done by an officer of the Court other than a solicitor.
Drawing up and entry of Queen's Bench judgments and orders (O.42, r. 5). 5. - (1) Where a judgment given in a cause or matter in the Queen's Bench Division is presented for entry in accordance with this rule at the appropriate office, it shall be entered by an officer of that office in the book kept for the purpose. (2) The party seeking to have such a judgment entered must draw up the judgment and present it to the proper officer of the appropriate office for entry. (3) A party presenting a judgment for entry must - (a) if he is the plaintiff, produce the original of the writ or other originating process by which the cause or matter in question was begun; (b) produce any certificate, order or other document to satisfy the proper officer that he is entitled to have the judgment entered and lodge the pleadings (if any) with that officer. (4) On entering any such judgment the proper officer shall file the judgment and return a duplicate thereof to the party who presented it for entry. (5) Every order made in the Queen's Bench Division and required to be drawn up must be drawn up by the party having the custody of the summons notice or other document on which the order is indorsed and if that party fails to draw up the order within 7 days after it is made any other party affected by the order may draw it up. (6) The order referred to in paragraph (5) must, when drawn up, be produced at the appropriate office, together with a copy thereof, and when passed by the proper officer the order, sealed with the seal of that office, shall be returned to the party producing it and the copy shall be lodged in that office. (7) The appropriate office for the purpose of this rule is the Central Office, except where the cause or matter is proceeding in a district registry in which case it is that registry unless the Court otherwise orders: Provided that in the case of an order made on a summons or other application transferred under Order 4, rule 6 (4) to a district registry or to the Royal Courts of Justice, the appropriate office shall be that registry or the Central Office, as the case may be, unless the Court otherwise orders. (8) Where by virtue of paragraph (7) a judgment or order in a cause or matter proceeding in a district registry is entered in the Central Office, or an order in a cause or matter proceeding in the Royal Courts of Justice is entered in a district registry, the proper officer shall send an office copy of the judgment or order to the registry in which the cause or matter is proceeding or to the Central Office, as the case may be.
Drawing up and filing of Chancery judgment and orders (O.42, r. 6). 6. - Every judgment given in a cause or matter in the Chancery Division and, subject to paragraph (3), every order made in such a cause or matter and required to be drawn up shall be drawn up in the appropriate office of the Court and filed in that office. (2) The appropriate office for the purpose of this rule is Chancery Chambers, except where the cause or matter is proceeding in a district registry in which case it is that registry unless the Court otherwise directs. (3) Whenever a Chancery Master or district registrar makes an interlocutory order he shall, having first given the parties an opportunity to be heard in the matter, direct whether or not such order is to be drawn up, and, if so, whether it is to be drawn up in court or by such of the parties as he may dircet: Provided that, where an order is directed to be drawn up by a party and is not presented for entry by that party at the appropriate office within seven days after the order was made, any party may apply to a master for the order to be drawn up in court and the master may make such order as he thinks fit as to the costs of such application and of the hearing which gave rise to the order.
APPEALS FROM MASTERS, REGISTRARS, REFEREES AND JUDGES Appeals from certain decisions of masters, ect. to judge in chambers (O.58, r. 1). 1. - (1) Except as provided by rule 2, an appeal shall lie to a judge in chambers from any judgment, order or decision of a master, the Admiralty Registrar or a registrar 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 to attend before the judge on a day specified in the notice or on such other day as may be directed. (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 an appeal to which this rule applies shall not be heard sooner than 2 clear days after service of the notice by which the appeal is brought. (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. $$N TEKST
Appeals from certain decisions of masters, etc. to Court of Appeal (O.58, r. 2). 2. - An appeal shall lie to the Court of Appeal from any judgment, order or decision of a master given or made - (a) on the hearing or determination of any cause, matter or issue tried before or referred to him under Order 36, rule 11; or (b) on an assessment of damages under Order 37 or otherwise. Amended by R.S.C. (Amendment No. 4) 1971 (S.I. 1971 No. 1269); R.S.C. (Amendment No. 2) 1978 S.I. No. 359 and R.S.C. (Amendment No. 2) 1982 (S.I. 1982 No. 1111). Effect of rule. - Appeals from all judgments, orders or decisions of a Master in all causes, matters, questions or issues tried before or referred to him under O. 36, r. 11, (i.e. trial by a Master with the consent of the parties) and appeals against an assessment of damages by a Master lie direct to the Court of Appeal; but in all other matters including interpleaders and garnishee and charging order proceedings, the appeal will lie in the ordinary way to the Judge in Chambers. Until 1982 this rule applied only to orders or decisions of a Q.B. Master; as a result of the 1982 amendment it applies equally to orders or decisions of Chancery Masters. Thus, appeal against an assessment of damages made by a Chancery Master now lies to the Court of Appeal. The words "hearing or determination" refer to a proceeding which results in a final, as opposed to an interlocutory, judgment, order or decision. On the other hand, if an order which is interlocutory in character is made after the trial or hearing of an action or assessment of damages has begun before a Master and during the course of such trial or hearing, e.g. grant or refusal of leave to amend, it is submitted that the appeal against such order will lie to the Court of Appeal as part of an appeal against the final order or judgment, for otherwise it would be anomalous that the appeal in such circumstances against the interlocutory order should lie to the Judge in Chambers and the appeal against the final order to the Court of Appeal. As a result of amendments to this rule appeal from the making of a charging order or the summary disposal of interpleader proceedings by a Master or district registrar lies to the Judge in Chambers, thus negativing the cases of (Rainbok v. Moorgate Properties Ltd. [1975] 1 W.L.R. 788; [1975] 2 All E.R. 821, C.A. and Teltscher Bros. Ltd. v. R.A.O. Catering Co. Ltd. (1976) 120 S.J. 354, C.A.
Appeals from district registrars (O.58, r. 3). 3. - (1) An appeal shall lie from any judgment, order or decision of a district registrar in any cause or matter 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 that cause or matter 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 registrar, rule 1 shall have effect subject to the modification that for the references therein to 5 days and 2 clear days there shall be substituted references to 7 days and 3 clear days respectively.
Appeals from official referees (O.58, r. 4). 4. - (1) Subject to paragraph (2) an appeal shall lie to the Court of Appeal - (a) from a decision of an offical referee on a point of law or as to costs only; and (b) from a decision of an official referee on a question of fact relevant to a charge of fraud or breach of professional duty. (2) In relation to any decision of an offical referee referred to in paragraph (1) section 31 of the Act shall apply as if the official referee were a judge of the High Court. (3) Except as provided by paragraph (1) and section 13 of the Administration of Justice Act, 1960 (which provides for an appeal in cases of contempt of court) no judgment, order or decision of an offical referee in relation to any cause, matter, question or issue ordered to be tried before him shall be called in question by appeal or otherwise.
Appeals from special referees (O.58, r. 5). 5. An appeal shall lie to the Court of Appeal from any judgment, order or decision of a special referee given or made on the hearing or determination of any cause, matter, question or issue ordered to be tried before him under Order 36, rule 10.
Appeal from judge in chambers (O.58, r. 6). 6. - (1) Subject to section 18 of the Act and section 15(2) of the Administration of Justice Act, 1960 (which restrict appeals) and to Order 53, rule 13, and without prejudice to section 13 of the said Act of 1960 (which provides for an appeal in cases of contempt of court) in the Queen's Bench Division (including the Admiralty Court) an appeal shall lie to the Court of Appel from any judgment, order or decision of a judge in chambers. (2) Subject to the said sections 18 and 15 (2) and without prejudice to the said section 13, in the Chancery Division and in the Family Division an appeal shall lie to the Court of Appeal from any judgment, order or decision of a judge in Chambers either - (a) with the leave of the judge or the Court of Appeal, or (b) after an application to set aside or discharge the judgment, order or decision has been made to the judge sitting in court and has been refused, and not otherwise.
Appeal from judgment, etc. of judge in interpleader proceedings (O.58, r. 7). 7. - (1) Any judgment, order or decision of a judge given or made in summarily determining under Order 17, rule 5 (2) (b) or (c) any question at issue between claimants in interpleader proceedings shall be final and conclusive against the claimants and all persons claiming under them unless leave to appeal to the Court of Appeal is given by the judge or the Court of Appeal. (2) Where an interpleader issue is tried by a judge (with or without a jury) an appeal shall lie to the Court of Appeal, without the leave of the judge or that Court, from any judgment, order or decision given or made by the judge on the trial. (3) The time within which notice of appeal under this rule must be served shall be the same as in the case of an appeal from an interlocutory order.
Application of Order to appeals (O.59, r. 1). 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 an offical referee, 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. Appeals - An appeal is an application to set aside or vary the decision of another tribunal on the ground that it was wrongly made (not, for example, an application for the amendment of an assessment of profits to income tax on the ground that subsequent events have given rise to a statutory right to relief. Furtado v. City of London Brewery Co. [1974] 1 K.B. 152; affd. ibid. p. 709). So where an order has been made giving the custody of an infant "until further order", an application to vary the order by reason of subsequent circumstances should be made to the Court of first instance, not by way of appeal (Re Holt (1880) 16 Ch.D. 115). Where an order has been made ex parte in the court below the appropriate procedure, if the other party wishes to contest it, is to apply to the court below to set it aside. Although the Court of Appeal has jurisdiction to hear an appeal against an ex parte order, it will not normally do so (WEA Records v. Visions Channel 4 Ltd. [1983] 1 W.L.R. 721; [1983] 2 All E.R. 589). The creation of a right of appeal is an act which requires legislative authority. Neither the inferior nor the superior tribunal nor both combined can create such a right (Att-.Gen. v. Sillem (1864) 10 H.L. Cas. 704; and see R. v. Hanson (1821) 4 B. Ald. 519: R. v. Cashiobury, JJ. (1823) 3 D. R. 35; National Telephone Co. v. Postmaster-General [1913] 2 K.B. 614; [1913] A.C. 546). But "when a question is stated to be referred to an established Court without more, it imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from the decision likewise attaches" (per Viscount Haldane L.C., National Telephone Co. v. Postmaster-General [1913] A.C. 546, p. 552). Where the statute provides no procedure for the appeal it is the duty of the appeal Court to do so, so that the appeal may be heard (Smith v. Williams [1922] 1 K.B. 158, p. 165. Cf. Hoser v. Ministry of Housing [1963] Ch. 428). Appeals are against orders, not reasoned judgments - Appeal lies against the order made by the Judge, not against the reasons he gave for his decision (Lake v. Lake [1955] P. 336; [1955] 2 All E.R. 538, C.A.). Thus a party who has succeeded in obtaining, or, as the case may be, resisting, all relief sought cannot appeal even though he disagrees with the reasons which the Judge has given for deciding all points in his favour. On the other hand, if a party has succeeded in obtaining, or resisting, only part of the relief sought, he can, of course, appeal against the order to the extent that he was unsuccessful. Restrictions on appealing - There are numerous provisions which restrict the right to appeal. Restrictions may be absolute (e.g. there is no appeal at all against the grant by the court below of an extension of time), or appeal may only be allowed with the leave of the court below (e.g. an appeal on costs only), or appeal may be allowed only with the leave of the court below or the leave of the Court of Appeal (e.g. most interlocutory orders); see paras. 59/1/8 et seq. Stages in the progress of an appeal - 1. Service of notice of appeal. - See r. 3. This is the process whereby the other parties are notified that an appeal is being made. Where leave to appeal is required, it must be obtained before service of a notice of appeal. Where leave to appeal is required a valid notice of appeal can only be served after leave has been granted (Cumbes v. Robinson [1951] 2 K.B. 83; [1951] 1 All E.R. 661, C.A.). The time limit for appealing is (subject to a few exceptions) four weeks (see r. 4). Thus, in order to avoid having to apply for an extension of time, it is necessary, where leave to appeal is required, to obtain leave soon enough to allow time for service of the notice of appeal before the four-week period expires. It follows from the decision in Cumbes v. Robinson that it is not possible to stop time running by serving a purported notice of appeal which includes an application for leave to appeal. 2. Setting down of the appeal - This is the process whereby the appeal is entered in the books of the Court of Appeal. The time limit for setting down is seven days from the date on which the notice of appeal was served (see r. 5). 3. Requisitioning of documents - The requisite number of bundles of documents for the use of the Lords Justices who will hear the appeal must be lodged within 14 days of the date on which the appeal first appears in the List of Forthcoming Appeals; see r. 9. It is the normal practice for an appeal to be added to the List of Forthcoming Appeals well before the anticipated hearing date. This is to ensure that the bundles are lodged well in advance of the hearing and that there is sufficient time for them to be checked. 4. Listing - Except in the case of appeals which are dealt with as a matter of urgency, appeals are entered in the Warned List and arrangements for hearing are then made. Listing is dealt with by the Civil Appeals Office, Listing Office (Room 249). Applications for an expedited hearing should be made to the Registrar. 5. Hearing - All appeals are heard by the Court of Appeal sitting in the Royal Courts of Justice in London. Appeals are heard in open Court before a full Court consisting either of two or three Lords Justices; (for the provisions dealing with the jurisdiction of two and three Judge Courts see Vol. 2, para 5245 and para 59/3/9). The full Court (unlike a single Lord Justice and the Registrar) has no power to sit in chambers. The Court of Appeal does have jurisdiction to sit in camera, but only in very limited circumstances (see para. 59/10/1). Where a party wishes to apply for an appeal to be heard in camera, the Registrar should be notified. 6. Order - Court of Appeal Orders are drawn by the Court Associate, and not by the parties. 7. Applications - There may be incidental applications in connection with an appeal. These are now generally heard either by a single Lord Justice or the Registrar (see r. 14 (nn.)).
Application of Order to applications for new trial (O.59, r. 2). 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.
Notice of appeal (O.59, r. 3). 3 - (1) An appeal to the Court of Appeal shall be by way of rehearing and must be brought by motion, and the notice of the motion is referred to in this Order as "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 leave 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 in which the appellant proposes that the appeal shall be set down. (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 (O.59, r. 4). 4 - (1) Except as otherwise provided by this Order, every notice of appeal must be served under r. 3 (5) within 4 weeks from the date on which the judgment or order of the court below was signed, entered 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 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.
Setting down appeal (O.59, r. 5). 5 - (1) The appellant must, within 7 days after service of the notice of appeal or within such further time as may be allowed by the registrar, produce to the registrar the judgment or order of the court below, or an office copy thereof, and leave with him - (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, and (c) an office copy of any list of exhibits made under Order 35, rule 11. (2) Upon the said documents being left, the registrar shall file one copy of the notice of appeal and cause the appeal to be set down in the proper list of appeals; and the appeal shall come on to be heard according to its order in that list unless the Court of Appeal or a single judge or the registrar otherwise orders. (3) The proper 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 2 days after an appeal has been set down, the appellant must give notice to that effect to all parties on whom the notice of appeal was served, specifying the list in which the appeal is set down and any extension of time allowed under paragraph (1).
Respondent's notice (O.59, r. 6). 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, or (c) to contend by way of cross-appeal that the decision of the court below was wrong in whole or in part, must give notice to that effect, specifying the grounds of his contention and, in a case to which paragraph (a) or (c) relates, the precise form of the order which he proposes to ask the Court to make. (2) Except with the leave 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 relief 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 two days after service of the notice, furnish two copies of the notice to the registrar.
Amendment of notice of appeal and respondent's notice (O.59, r. 7). 7 - (1) A notice of appeal or respondent's notice may be amended - (a) by or with the leave of the Court of Appeal, a single judge or the registrar, at any time; (b) without such leave, by supplementary notice served, before the date on which the appeal first appears in the List of Forthcoming Appeals 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, furnish two copies of the notice to the registar.
Directions of the Court as to service (O.59, r. 8). 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 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 lodged by appellant (O.59, r. 9). 9 - (1) Not more than 14 days after the appeal first appears in a list to be called "the List of Forthcoming Appeals" the appellant must cause to be lodged with the registrar the number of copies for which paragraph (2) provides of each of the following documents, namely - (a) the notice of appeal; (b) the respondent's notice: (c) any supplementary notice served under rule 7; (d) the judgment or order of the court below; (e) the originating process by which the proceedings in the court below were begun, any interlocutory or other related process which is the subject of the appeal, the pleadings (including particulars) if any, and, in the case of an appeal in an Admiralty cause or matter, the preliminary acts, if any; (f) the transcript of the official shorthand note or record, if any, of the judge's reasons for giving the judgment or making the order of the court below or, in the absence of such a note or record, the judge's note of his reasons or, if the judge's note is not available, counsel's note of the judge's reasons approved whereever possible by the judge; (g) such parts of the transcript of the official shorthand note or record, if any, of the evidence given in the court below as are relevant to any question at issue on the appeal or, in the absence of such a note or record, such parts of the judge's note of the evidence as are relevant to any such question; (h) any list of exhibits made under order 35, rule 11, or the schedule of evidence, as the case may be; (i) such affidavits, exhibits, or parts of exhibits, as were in evidence in the court below and as are relevant to any question at issue on the appeal. (2) Unless otherwise directed, the number of copies to be lodged in accordance with paragraph (1) is three copies except - (a) where the appeal is to be heard by two judges in which case it is two copies; or (b) in the case of an appeal in an Admiralty cause or matter, in which case it is four copies or, if the Court of Appeal is to hear the appeal with assessors, six. (2A) When the transcripts, if any, referred to in items (f) and (g) of paragraph (1) have been bespoken by the appellant and paid for, the number of such transcripts required in accordance with paragraph (2) shall be sent by the official shorthand writer or transcriber direct to the registrar. (3) At any time after an appeal has been set down in accordance with r. 5 the registrar may give such directions in relation to the documents to be produced at the appeal, and the manner in which they are to be presented, and as to other matters incidental to the conduct of the appeal, as appear best adapted to secure the just, expeditious and economical disposal of the appeal. (4) The directions referred to in paragraph (3) may be given without a hearing provided always that the registrar may at any time issue a summons requiring the parties to an appeal to attend before him and any party to an appeal may apply at any time for an appointment before the registrar.
General powers of the Court (O.59, r. 10). 10. - (1) In relation to an appeal the Court of Appeal shall have all the powers and duties as to amendment and otherwise of the High Court including, without prejudice to the generality of the foregoing words, the powers of the Court under Order 36 to refer any question or issue of fact for trial before, or inquiry and report by, an official referee. In relation to a reference made to an official referee, any thing required or authorised under Order 36, rule 9, to be done by, to or before the Court shall be done by, to or before the Court of Appeal. (2) The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter 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 interferences 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 may be exercised by a single judge or the registrar. Provided that the said powers of the Court of Appeal shall be exercisable only by that Court or a single judge 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 of lifting of a stay of execution or proceedings.
Powers of the Court as to new trial (O.59, r. 11). 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 party 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, in lieu of ordering a new trial - (a) with the consent of all parties concerned, substitute for the sum awarded by the jury such sum as appears to the Court to be proper; (b) with the consent of the party entitled to receive or liable to pay the damages, as the case may be, reduce or increase the sum awarded by the jury by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included in or excluded from the sum so awarded; but except as aforesaid the Court of Appeal shall not have power to reduce or increase the damages awarded by a jury. (5) A new trial shall not be ordered by reason of the ruling of any judge that a document is sufficiently stamped or does not require to be stamped.
Stay of execution, etc. (O.59, r. 13). 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 otherwise orders.
Application to Court of Appeal (O.59, r. 14). 14 - (1) Unless otherwise directed, every application to the Court of Appeal, a single judge or the registrar which is not made ex parte must be made by summons and such summons must be served on the party or parties affected at least 2 clear days before the day on which it is heard or, in the case of an application which is made after the expiration of the time for appealing, at least 7 days before the day on which the summons is heard. (2) Unless otherwise directed, any application to the Court of Appeal for leave to appeal (other than an application made after the expiration of the time for appealing) must be made ex parte in the first instance but unless the application is then dismissed or it appears to that Court that undue hardship would be caused by an adjournment, the Court shall adjourn the application and give directions for the sevice of notice thereof on the party or parties affected. (3) Where an ex parte application has been refused by the Court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal. (4) Whereever 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. (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 Order 73, rule 5, shall apply as if, for the words "the Court", whereever they appear in that rule, there were substituted the words "Court of Appeal" and as if, for the words "arbitrator" and "umpire", there were substituted the words "judge-arbitrator" and "judge-umpire" respectively. (6) Where an application is made to the Court of Appeal under section 1 (5) of the Arbitrator Act 1979 (including any application for leave) 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 leave to appeal, which may be heard by a single judge shall unless otherwise directed be heard in chambers. (8) An application which may under the provisions of this Order be heard by the registrar shall be heard in chambers. (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 leave 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 leave of that Court in respect of a determination of the registrar which has been reviewed by a single judge.
Interpretation (O.62, r.1). 1. - (1) In this Order - "certificate" includes allocatur; "contentious business" and "non-contentious business" have the same meanings respectively as in the Solicitors Act 1974; "costs" includes fees, charges, disbursements, expenses and remuneration; "the Court" means the Supreme Court or any one or more judges thereof, whether sitting in court or in chambers, or any master, registrar or registrar of a district registry. "proceedings in the Family Division" includes proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in that Division or on an appeal from a judgment, direction, decision or order of a county court given or made in probate proceedings (as defined by the County Courts Act 1959, or a matrimonial cause or matter; "registrar" (except where the context otherwise requires) means the Admiralty Registrar or a registrar of the Family Division. "taxed costs" means costs taxed in accordance with this Order; "taxing master" means a master of the Supreme Court (Taxing Office); "taxing officer" (except where otherwise expressly provided) includes any person who by virtue of this Order has power to tax costs. (2) In this Order references to a fund, being a fund out of which costs are to be paid or which is held by a trustee or personal representative include references to any estate or property, whether real or personal, held for the benefit of any personal or class of persons; and references to a fund held by a trustee or personal representative include references to any fund to which he is entitled (whether alone or together with any other person) in that capacity, whether the fund is for the time being in his possession or not.
Application (O.62, r.2). 2. - (1) This Order shall have effect in relation to all criminal proceedings in the Queen's Bench Division or Court of Appeal. (2) Where by virtue of any Act the costs of or incidental to any proceedings before an arbitrator or umpire or before a tribunal or other body constituted by or under any Act, not being proceedings in the Supreme Court, are taxable in the High Court, the following provisions of this Order, that is to say, rule 7 (4) and (5) rule 8 (6) rules 14 to 16, rule 17 (1) rule 18, rule 21 (except paragraph (3)) rule 22 to 26 and rules 33 to 35, shall have effect in relation to proceedings for taxation of those costs as they have effect in relation to proceedings for taxation of the costs of or arising out of proceedings in the Family Division. (3) This Order shall have effect subject to sections 47 and 60 of the County Courts Act, 1959 (which limit the costs recoverable in relation to certain proceedings which could have been commenced in a county court) and to any other Act of Parliament. (4) The powers and discretion of the Court as to costs under section 51 of the Act (which provides that the costs of and incidental to proceedings in the Supreme Court shall be in the discretion of the Court and that the Court shall have full power to determine by whom and to what extent the costs are to be paid) and under the enactments relating to the costs of criminal proceedings to which this Order applies shall be exercised subject to and in accordance with this Order.
When costs to follow the event (O.62, r.3). 3. - (1) Subject to the following provisions of this Order, no party shall be entitled to recover any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the Court. (2) If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings, the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs. (3) The costs of and occasioned by any amendment made without leave in the writ of summons or any pleading shall be borne by the party making the amendment, unless the Court otherwise orders. (4) The costs of and occasioned by any application to extend the time fixed by these rules, or any direction or order thereunder, for serving or filing any document or doing any other act (including the costs of any order made on the application) shall be borne by the party making the application, unless the Court otherwise orders. (5) If a party on whom a notice to admit facts is served under Order 27, rule 2, refuses or neglects to admit the facts within 7 days after the service on him of the notice or such longer time as may be allowed by the Court, the costs of proving the facts shall be paid by him, unless the Court otherwise orders. (6) If a party - (a) on whom a list of documents is served in pursuance of any provision of Order 24, or (b) on whom a notice to admit documents is served under Order 27, rule 5, gives notice of non-admission of any of the documents in accordance with Order 27, rule 4 (2) or 5 (2) as the case may be, the costs of proving that document shall be paid by him, unless the Court otherwise orders. (7) Where a defendant by notice in writing and without leave discontinues his counterclaim against any party or withdraws any particular claim made by him therein against any party, that party shall, unless the Court otherwise directs, be entitled to his costs of the counterclaim or his costs occasioned by the claim withdrawn, as the case may be, incurred to the time of receipt of the notice of discontinuance or withdrawal. (8) Where a plaintiff accepts money paid into Court by a defendant who counterclaimed against him, then, if the notice of payment given by that defendant stated that he had taken into account and satisfied the cause of action or, as the case may be, all the causes of action in respect of which he counterclaimed, that defendant shall, unless the Court otherwise directs, be entitled to his costs of the counterclaim incurred to the time of receipt of the notice of acceptance by the plaintiff of the money paid into court. (9) Where any person claiming to be a creditor - (a) seeks to establish his claim to a debt under any judgment or order in accordance with Order 44, or (b) comes in to prove his title, debt or claim in relation to a company in pursuance of any such notice as is mentioned in Order 102 rule 13 he shall, if his claim succeeds, be entitled to his costs incurred in establishing it, unless the Court otherwise directs, and, if his claim or any part of it fails, may be ordered to pay the costs of any person incurred in opposing it. (10) Where a claimant is entitled to costs under paragraph (9) the amount of the costs shall be fixed by the Court unless it thinks fit to direct taxation and the amount fixed or allowed shall be added to the claimant's debt. (11) Where a claimant (other than a person claiming to be a creditor) having established a claim to be entitled under a judgment or order in accordance with Order 44 has been served with notice of the judgment or order pursuant to rule 3 or 15 of that Order, he shall, if he acknowledges service of the notice be entitled as part of his costs of action (if allowed) to costs incurred in establishing his claim, unless the Court otherwise directs; and where such a claimant fails to establish his claim or any part of it he may be ordered to pay the costs of any person incurred in opposing it. (12) Where an application is made in accordance with Order 24, rule 7A, or Order 29, rule 7A, for an order under section 33 or 34 of the Act, the person against whom the order is sought shall be entitled, unless the Court otherwise directs, to his costs of and incidental to the application and of complying with any order made thereon and he may, after giving the applicant 7 days' notice of his intention to do so, tax such costs and, if they are not paid within 4 days after taxation, sign judgment for them.
Stage of proceedings at which costs to be dealt with (O.62, r.4). 4. - (1) Costs may be dealt with by the Court at any stage of the proceedings or after the conclusion of the proceedings; and any order of the Court for the payment of any costs may, if the Court thinks fit, and the person against whom the order is made is not an assisted person require the costs to be paid forthwith notwithstanding that the proceedings have not been concluded. (2) In the case of an appeal the costs of the proceedings giving rise to the appeal, as well as the costs of the appeal and of the proceedings connected with it, may be dealt with by the Court hearing the appeal; and in the case of any proceedings transferred or removed to the High Court from any other court, the costs of the whole proceedings, both before and after the transfer or removal, may (subject to any order of the court ordering the transfer or removal) be dealt with by the Court to which the proceedings are transferred or removed. (3) Where under paragraph (2) the Court makes an order as to the costs of any proceedings before another court, rules 28, 31 and 32 shall not apply in relation to those costs, but, except in relation to costs of proceedings transferred or removed from a county court, the order - (a) shall specify the amount of the costs to be allowed, or (b) shall direct that the costs shall be assessed by the court before which the proceedings took place or taxed by an officer of that court, or (c) if the order is made on appeal from a county court in relation to proceedings in that court, may direct that the costs shall be taxed by a taxing officer.
1.-(1) Any document which by the virtue of these rules is required to be served on any person need not be served personally unless the document is one which by an express provision of these rules or by order of the Court is required to be so served. (2) Paragraph (1) shall not affect the power of the Court under any provision of these rules to dispense with the requirement for personal sevice.
2. Personal service of a document is effected by leaving a copy of the document with the person to be served.
4.-(1) If, in the case of any document which by virtue of any provision of these rules is required to be served personally or a document to which Order 10, rule 1, applies, it appears to the Court that it is impracticable for any reason to serve the document in the manner prescribed on that person, the Court may take an order for substituted service of that document. (2) An application for an order for substituted service may be made by an affidavit stating the facts on which the application is founded. (3) Substituted service of a document, in relation to which an order is made under this rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served.
5.-(1) Service of any document, not being a document which by virtue of any provision of these rules is required to be served personally or a document to which Order 10, rule 1, applies may be effected - (a) by leaving the document at the proper address of the person to be served, or (b) by post, or (c) in such other manner as the Court may direct. (2) For the purposes of this rule, and of section 7 of the Interpretation Act 1978, in its application to this rule, the proper address of any person on whom a document is to be served in accordance with this rule shall be the address for service of that person, but if at the time when service is effected that person has no address for service his proper address for the purposes aforesaid shall be - (a) in any case, the business address of the solicitor (if any) who is acting for him in the proceedings in connection with which service of the document in question is to be effected, or (b) in the case of an individual, his usual or last known address, or (c) in the case of individuals who are suing or being sued in the name of a firm, the principal or last known place of business of the firm within the jurisdiction, or (d) in the case of a body corporate, the registered or principal office of the body. (3) Nothing of this rule shall be taken as prohibiting the personal service of any document or as affecting any enactment which provides for the manner in which documents may be served on bodies corporate.
7. Any document (other than a writ of summons or other originating process) service of which is effected under rule 2 or under rule 5 (1) (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.
8. Except as provided in Order 10, rule 1 (3) (b) and Order 81, rule 3 (2) (b) an affidavit of service of any document must state by whom the document was served, the day of the week and date on which it was served, where it was served and how.
9. Where by virtue of these rules any document is required to be served on any person but is not required to be served personally or in accordance with Order 10, rule 1 (2) and at the time when service is to be effected that person is in default as to acknowledgement 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.
10.-(1) No process shall be served or executed within the jurisdiction on a Sunday except, in case of urgency, with the leave of the Court. (2) For the purposes of this rule " process " includes a writ, judgment, notice, order, petition, originating or other summons or warrant.
Interpretation (O.80, r. 1). 1. In this Order - "the Act" means the Mental Health Act; "patient" means a person who, by reason of mental disorder within the meaning of the Act, is incapable of managing and administering his property and affairs; "person under disability" means a person who is an infant or a patient.
Person under disability must sue, ect., by next friend or guardian ad litem (O.80, r. 2). 2 - (1) A person under disability may not bring, or make a claim, in any proceedings except by his next friend and may not acknowledge service, defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his guardian ad litem. (2) Subject to the provisions of these rules, anything which in the ordinary conduct of any proceedings is required or authorised by a provision of these rules to be done by a party to the proceedings shall or may, if the party is a person under disability, be done by his next friend or guardian ad litem. (3) A next friend or guardian ad litem of a person under disability must act by a solicitor.
Appointment of next friend or guardian ad litem (O.80, r. 3). 3 - (1) [Revoked by R.S.C. (Amendment No. 4.) 1971 (S.I. 1971 No. 1269).]. (2) Except as provided by paragraph (4) or (5) or by rule 6, an order appointing a person next friend or guardian ad litem of a person under disability is not necessary. (3) Where a person is authorised under Part VII of the Act to conduct legal proceedings in the name of a patient or on his behalf, that person shall be entitled to be next friend or guardian ad litem, as the case may be, of the patient in any proceedings to which his authority extends unless, in a case to which paragraph (4) or (5) or rule 6 applies, some other person is appointed by the Court under that paragraph or rule to be next friend or guardian ad litem, as the case may be, of the patient in those proceedings. (4) Where a person has been or is next friend or guardian ad litem of a person under disability in any proceedings, no other person shall be entitled to act as such friend or guardian, as the case may be, of the person under disability in those proceedings unless the Court makes an order appointing him such friend or guardian in substitution for the person previously acting in that capacity. (5) Where, after any proceedings have been begun, a party to the proceedings becomes a patient, an application must be made to the Court for the appointment of a person to be next friend or guardian ad litem, as the case may be, of that party. (6) Except where the next friend or guardian ad litem, as the case may be, of a person under disability has been appointed by the Court - (a) the name of any person shall not be used in a cause or matter as next friend of a person under disability, (b) service shall not be acknowledged in a cause or matter for a person under disability, and (c) a person under disability shall not be entitled to appear by his guardian ad litem on the hearing of a petition, summons or motion which, or notice of which, has been served on him, unless and until the documents listed in paragraph (8) have been filed in the appropriate office. (7) The appropriate office for the purpose of paragraph (6) is the office of the Supreme Court which has the conduct of the business of the division or court in which the cause or matter is proceeding or, if it is proceeding in a district registry, that registry. (8) The documents referred to in paragraph (6) are the following - (a) a written consent to be next friend or guardian ad litem, as the case may be, of the person under disability in the cause or matter in question given by the person proposing to be such friend or guardian; (b) where the person proposing to be such friend or guardian of the person under disability, being a patient, is authorised under Part VII of the Act to conduct the proceedings in the cause or matter in question in the name of the patient or on his behalf, an office copy, sealed with the official seal of the Court of Protection, of the order or other authorisation made or given under the said part VII by virtue of which he is so authorised; and (c) except where the person proposing to be such friend or guardian of the person under disability, being a patient, is authorised as mentioned in sub-paragraph (b) a certificate made by the solicitor for the person under disability certifying - (i) that he knows or believes, as the case may be, that the person to whom the certificate relates is an infant or a patient, giving (in the case of a patient) the grounds of his knowledge or belief; and (ii) where the person under disability is a patient, that there is no person authorised as aforesaid; and (iii) except where the person named in the certificate as next friend or guardian ad litem, as the case may be, is the official solicitor, that the person so named has no interest in the cause or matter in question adverse to that of the person under disability.
Appointment of guardian where person under disability does not acknowledge service (O.80, r. 6). 6 - (1) Where - (a) in an action against a person under disability begun by writ, or by originating summons no acknowledgment of service is given in the action for that person, or (b) the defendant to an action serves a defence and counterclaim on a person under disability who is not already a party to the action, and no acknowledgment of service is given for that person, an application for the appointment by the Court of a guardian ad litem of that person must be made by the plaintiff or defendant, as the case may be, after the time limited (as respects that person) for acknowledging service and before proceeding further with the action or counterclaim. (2) Where a party to an action has served on a person under disability who is not already a party to the action a third party notice within the meaning of Order 16 and no acknowledgment of service is given for that person to the notice, an application for the appointment by the Court of a guardian ad litem of that person must be made by that party after the time limited (as respects that person) for acknowledging service and before proceeding further with the third party proceedings. (3) Where in any proceedings against a person under disability begun by petition or motion, that person does not appear by a guardian ad litem at the hearing of the petition of motion, as the case may be, the Court hearing it may appoint a guardian ad litem of that person in the proceedings or direct that an application be made by the petitioner or applicant, as the case may be, for the appointment of such a guardian. (4) At any stage in the proceedings in the Chancery Division under any judgment or order, notice of which has been served on a person under disability, the Court may, if no acknowledgment of service is given for that person, appoint a guardian ad litem of that person in the proceedings or direct that an application be made for the appointment of such a guardian. (5) An application under paragraph (1) or (2) must be supported by evidence proving - (a) that the person to whom the application relates is a person under disability, (b) that the person proposed as guardian ad litem is willing and a proper person to act as such and has no interest in the proceedings adverse to that of the person under disability, (c) that the writ, originating summons, defence and counterclaim or third party notice, as the case may be, was duly served on the person under disability, and (d) subject to paragraph (6) that notice of the application was, after the expiration of the time limited for acknowledging service and at least 7 days before the day named in the notice for hearing of the application, so served on him. (6) If the Court so directs, notice of an application under paragraph (1) or (2) need not be served on a person under disability. (7) An application for the appointment of a guardian ad litem made in compliance with a direction of the Court given under paragraph (3) or (4) must be supported by evidence proving the matters referred to in paragraph (5) (b).
Application to discharge or vary certain orders (O.80, r. 7). 7 - An application to the Court on behalf of a person under disability served with an order made ex parte under Order 15, rule 7, for the discharge or variation of the order must be made - (a) if a next friend or guardian ad litem is acting for that person in the cause or matter in which the order is made, within 14 days after the service of the order on that person; (b) if there is not next friend or guardian ad litem acting for that person in that cause or matter, within 14 days after the appointment of such a friend or guardian to act for him.
Admission not to be implied from pleading of person under disability (O.80, r. 8). 8. Notwithstanding anything in Order 18, rule 13 (1) a person under disability shall not be taken to admit the truth of any allegation of fact made in the pleading of the opposite party by reason only that he has not traversed it in his pleadings.
Discovery and interrogatories (O.80, r. 9)# 9. Orders 24 and 26 shall apply to a person under disability and to his next friend or guardian ad litem.
Compromise, etc., by person under disability (O.80, r. 10). 10. Where in any proceedings money is claimed by or on behalf of a person under disability, no settlement, compromise or payment and no acceptance of money paid into court, whenever entered into or made, shall so far as it relates to that person's claim be valid without the approval of the court.
Approval of settlement (O.80, r. 11). 11 - (1) Where, before proceedings in which a claim for money is made by or on behalf of a person under disability (whether alone or in conjunction with any other person) are begun, an agreement is reached for the settlement of the claim, and it is desired to obtain the Court's approval to the settlement, then, notwithstanding anything in Order 5, rule 2, the claim may be made in proceedings begun by originating summons and in the summons an application may also be made for - (a) the approval of the Court to the settlement and such orders or directions as may be necessary to give effect to it or as may be necessary or expedient under section 174 of the County Courts Act, 1959, or rule 12, or (b) alternatively, directions as to the further prosecution of the claim. (2) Where in proceedings under this rule a claim is made under the Fatal Accidents Act 1976 the originating summons must include the particulars mentioned in section 2 (4) of that Act. (3) Without prejudice to Order 7, rule 5, and Order 75, rule 36 (1) an originating summons under this rule may be issued out of any district registry notwithstanding that the proceedings are assigned to the Chancery Division. (4) An originating summons under this Rule shall be in Form No. 10 in Appendix A. (5) In this rule "settlement" includes a compromise.
Control of money recovered by person under disability (O.80, r. 12). 12 - (1) Where in any proceedings - (a) money is recovered by or on behalf of, or adjudged or ordered or agreed to be paid to, or for the benefit of, a person under disability, or (b) money paid into court is accepted by or on behalf of a plaintiff who is a person under disability, the money shall be dealt with in accordance with directions given by the Court, whether under section 174 of the County Courts Act, 1959, or this rule, or under both that section and this rule and not otherwise. (2) Directions given under this rule may provide that the money shall, as to the whole or any part thereof, be paid into the High Court and invested or otherwise dealt with there. (3) Without prejudice to the foregoing provisions of this rule, directions given under this rule may include any general or special directions that the Court thinks fit to give and, in particular, directions as to how the money is to be applied or dealt with and as to any payment to be made, either directly or out of the amount paid into court and whether before or after the money is transferred to or paid into a county court, to the plaintiff, or to the next friend in respect of moneys paid or expenses incurred for or on behalf or for the benefit of the person under disability or for his maintenance or otherwise for his benefit or to the plaintiff's solicitor in respect of costs. (4) Where in pursuance of directions given under this rule money is paid into the High Court to be invested or otherwise dealt with there, the money (including any interest thereon) shall not be paid out, nor shall any securities in which the money is invested, or the dividends thereon, be sold, transferred or paid out of court, except in accordance with an order of the Court. (5) The foregoing provisions of this rule shall apply in relation to a counterclaim by or on behalf of a person under disability, and a claim made by or on behalf of such a person in an action by any other person for relief under section 504 of the Merchant Shipping Act, 1894, as if for references to a plaintiff and a next friend there were substituted references to a defendant and to a guardian ad litem respectively.
Provisions supplementary to r. 12 (O.80, r. 13). 13 - (1) Where under section 174 the County Courts Act, 1959, money to which a person under disability is entitled is ordered to be transferred from the High Court to a county court or to be paid into a county court, the following provisions of this rule shall apply. (2) Where the money is ordered to be transferred to a county court, the proper officer of the High Court shall send a sealed copy of the order and the payment schedule to the Accountant General, who shall proceed in accordance with rule 50 of the Supreme Court Funds Rules 1975. (3) Where the money is ordered to be paid into a county court, the proper officer of the High Court shall send a sealed copy of the judgment or order to the registrar of the county court.
Proceedings under Fatal Accidents Act: apportionment by Court (O.80, r. 15). 15 - (1) Where a single sum of money is paid into court under Order 22, rule 1, in satisfaction of causes of action, arising under the Fatal Accidents Act 1976, and the Law Reform (Miscellaneous Provisions) Act 1934, and that sum is accepted, the money shall be apportioned between the different causes of action by the Court either when giving directions for dealing with it under rule 12 (if that rule applies) or when authorising its payment out of court. (2) 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 sum in respect of damages is adjudged or ordered or agreed to be paid in satisfaction of the claim, or a sum of money paid into court under Order 22, rule 1, is accepted in satisfaction of the cause of action under the said Act; then, unless the sum has been apportioned between the persons entitled thereto by a jury, it shall be apportioned between those persons by the Court. The reference in this paragraph to a sum of money paid into court shall be construed as including a reference to part of a sum so paid, being the part apportioned by the Court under paragraph (1) to the cause of action under the said Act.
Service of certain documents on person under disability (O.80, r. 16). 16 - (1) Where in any proceedings a document is required to be served personally or in accordance with Order 10, rule 1 (2) on any person and that person is a person under disability this rule shall apply. (2) Subject to the following provisions of this rule and to Order 24, rule 16 (3) and Order 26, rule 6 (3) the documents must be served - (a) in the case of an infant who is not also a patient, on his father or guardian or, if he has no father or guardian, on the person with whom he resides or in whose care he is; (b) in the case of a patient, on the person (if any) who is authorised under part VII of the Act to conduct in the name of the patient or on his behalf the proceedings in connection with which the document is to be served or, if there is no person so authorised, on the person with whom he resides or in whose care he is; and must be served in the manner required by these rules with respect to the document in question. (3) Notwithstanding anything in paragraph (2) the Court may order that a document which has been, or is to be, served on the person under disability or on a person other than a person mentioned in that paragraph shall be deemed to be duly served on the person under disability. (4) A judgment or order requiring a person to do, or refrain from doing, any act, a notice of motion or summons for the committal for any person, and a writ of subpoena against any person, must, if that person is a person under disability, be served personally on him unless the Court otherwise orders. This paragraph shall not apply to an order for interrogatories or for discovery or inspection of documents.
Appeals from High Court. 16.-(1) Subjects as otherwise provided by this or any other Act (and in particular to the provision in section 13(2)(a) of the Administration of Justice Act 1969 excluding appeals to the Court of Appeal in cases where leave to appeal from the High Court directly to the House of Lords is granted under Part II of that Act) the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court. (2) An appeal from a judgment or order of the High Court when acting as a prize court shall not be to the Court of Appeal, but shall be to Her Majesty in Council in accordance with the Prize Acts 1864 to 1944. Appeals directly from the High Court to the House of Lords - " leap-frog appeals ". - See A.J.A.1969, s.13 (para.5431) and House of Lords (Civil Appeals) Standing Order X (para.4993).
Applications for new trial. 17.-(1) Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise. (2) As regards cases where the trial was by a judge alone and no error of the court at the trial is alleged, or any prescribed class of such cases, rules of court may provide that any such application as is mentioned in subsection (1) shall be heard and determined by the High Court. (3) Nothing in this section shall alter the practice in bankruptcy. Effect of the section - See Vol.1,para.59/2/1.
Restrictions on appeals to Court of Appeal. 18.-(1) No appeal shall lie to the Court of Appeal - (a) except as provided by the Administration of Justice Act 1960, from any judgment of the High Court in any criminal cause or matter; (b) from any order of the High Court or any other court or tribunal allowing an extension of time for appealing from a judgment or order; (c) from any order, judgment or decision of the High Court or any other court or tribunal which, by virtue of any provision (however expressed) of this or any other Act, is final; (d) from a decree absolute of divorce or nullity of marriage, by a party who, having had time and opportunity to appeal from the decree nisi on which that decree was founded, has not appealed from the decree nisi; (e) without the leave of the divisional court in question or of the Court of Appeal, from the determination by a divisional court of any appeal to the High Court; (f) without the leave of the court or tribunal in question, from any order of the High Court or any other court or tribunal made with the consent of the parties or relating only to costs which are by law left to the discretion of the court or tribunal; (g) except as provided by the Arbitration Act 1979, from any decision of the High Court - (i) on an appeal under section 1 of that Act on a question of law arising out of an arbitration award; or (ii) under section 2 of that Act on a question of law arising in the course of a reference; (h) without the leave of the court or tribunal in question or of the Court of Appeal, from any interlocutory order or interlocutory judgment made or given by the High Court or any other court or tribunal, except in the following cases, namely - (i) where the liberty of the subject or the custody, education or welfare of a minor is concerned; (ii) where an applicant for access to a minor is refused all access to the minor; (iii) where an injunction or the appointment of a receiver is granted or refused; (iv) in the case of a decision determining the claim of any creditor, or the liability of any contributory or of any director or other officer, under the law relating to companies; (v) in the case of a decree nisi in a matrimonial cause, or a judgment or order in an admiralty action determining liability; (vi) in such other cases as may be prescribed. (2) For the purposes of the subsection (1)(h) - (a) an order refusing unconditional leave to defend an action shall not be treated as an interlocutory order; and (b) "education" includes training and religious instruction. The effect of the various restrictions on appeals contained in this section is discussed in detail in Vol. 1, paras.59/1/8 et seq. For commentary on the meaning of " Criminal cause or matter " see Vol. 1, para59/1/8. For an account of the distinction between interlocutory and final orders and judgments, see Vol. 1,para.59/1/15.
General mode of service. 1.-(1) Where by virtue of these rules any document is required to be served on any person and no other mode of service is prescribed by any Act or rule, the document may be served - (a) if the person to be served is acting in person, 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 - (i) by delivering the document 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 the document at his place of business or sending it by first-class post to his last known place of business; (b) if the person to be served is acting by a solicitor, by delivering the document at, or sending it by first-class post to, the solicitor's address for service. (2) In this Order ' first-class post ' means first-class post which has been pre-paid or in respect of which prepayment is not required.
Personal service. 2. Where any document is required by an Act or rule to be served personally - (a) service shall be effected by leaving the document with the person to be served; (b) the document may be served by - (i) a bailiff of the court or, if the person to be served attends at the office of the court, any officer of the court; or (ii) a party to the proceedings or some person acting as his agent; or (iii) the solicitor of a party or a solicitor acting as an agent for such solicitor or some person employed by either solicitor to serve the document; but service shall not be effected by any person under the age of 16 years.
Days on which no service permitted. 3. Witout prejudice to Order 40, rule 5 (5), no process shall be served or executed within England or Wales on Sunday, Good Friday, or Christmas Day except, in the case of urgency, with the leave of the court.
Proof of service or non-service. 6.-(1) The person effecting the service of any document shall - (a) if he is an officer of the court, make, sign and file a certificate showing the date, place and mode of service and any conduct money paid or tendered to the person served; and (b) if he is not an officer of the court, file an affidavit of service. (2) A bailiff who has failed to effect service of any document to be served by bailiff shall make, sign and file a certificate of non-service showing the reason why service has not been effected, and the proper officer of the bailiff's court shall send notice of non-service to the person at whose insistance the document was issued.
Substituted service. 8 - (1) If it appears to the court that it is impracticable for any reason to serve a document in any manner prescribed by these rules for the service of that document, the court may, upon an affidavit showing grounds, make an order (in this rule called 'an order for substituted service') giving leave for such steps to be taken as the court directs to bring the document to the notice of the person to be served. (2) Where a document is to be served by bailiff, the proper officer of the bailiff's court shall, if so requested, take such steps as may be necessary to provide evidence on which an order for substituted service may be made.
Part II. Default and Fixed Date Summonses. Application of Part II. 9. Except as otherwise provided, this Part of this Order shall apply to both default and fixed date summonses and 'summons' shall be construed accordingly.
Mode of service. 10 - (1) Subject to the provisions of any Act or rule (including the following paragraphs of this rule), service of a summons shall be effected- (a) by the plaintiff delivering the summons to the defendant personally, or (b) by an officer of the court sending it by first-class post to the defendant at the address stated in the request for the summons [1983]. (2) Unless the plaintiff or his solicitor otherwise requests, service shall be effected in accordance with paragraph (1) (b) [1983]. (3) Where a summons is served in accordance with paragraph (1) (b), the date of service shall, unless the contrary is shown, be deemed to be the seventh day after the date on which the summons was sent to the defendant [1983]. (4) Where a summons has been sent by post in accordance with paragraph (1) (b) to the address stated in the request for the summons and has been returned to the court office undelivered, notice of non-service shall be sent pursuant to rule 6 (2) together with a notice informing the plaintiff that he may request bailiff service at that address and, if such service is requested, it shall be effected by a bailiff of the court - (a) inserting the summons, enclosed in an envelope addressed to the defendant, through the letter box at the address stated in the request for the summons, or (b) delivering the summons to some person, apparently not less than 16 years old, at the address stated in the request for the summons, or (c) delivering the summons to the defendant personally [1983]. (5) Service of a fixed date summons shall be effected not less than 21 days before the return day; but, without prejudice to the power to abridge that period under Order 13, rule 4, service may be effected at any time before the return day on the plaintiff satisfying the registrar by affidavit that the defendant is about to remove from the address stated in the request for the summons [1983].
Solicitor accepting service. 11. Where a defendant's solicitor gives a cerfificate that he accepts service of the summons on behalf of that defendant and stating an address for service, the summons shall be deemed to have been duly served on that defendant on the date on which the certificate was made.
Presumed service of summons. 12. Where a summons has not been served in accordance with rule 10 but the defendant delivers to the court office a defence, admission or counterclaim, the summons shall be deemed, unless the contrary is shown, to have been duly served on him on the date on which the defence, admission or counterclaim was so delivered.
Notice of service of default summons. 21. Where a default summons has been served by a bailiff or other officer of a county court, the proper officer to that court shall send notice of service to the plaintiff.
General provisions. 1.-(1) Except as otherwise provided, the following paragraphs of this rule shall have effect in relation to any application authorised by or under any Act or rule to be made in the course of an action or matter before or after judgment. (2) Unless allowed or authorised to be made ex parte, the application shall be filed and served on the opposite party not less than two days before the hearing of the application. (3) Where the application is made ex parte, notice of the application shall be filed a reasonable time before the application is heard, unless the court otherwise directs. (4) Unless allowed or authorised to be made otherwise, every application shall be heard in chambers. (5) Where any party to the application fails to attend on the hearing the court may proceed in his absence if, having regard to the nature of the application, the court thinks it expedient to do so. (6) The jurisdiction of the court to hear and determine the application may be exercised by the registrar and the applicant shall, unless the judge otherwise directs, make the application to the registrar in the first instance. (7) Where the application is made to the registrar, he may refer to the judge any matter which he thinks should properly be decided by the judge, and the judge may either dispose of the matter or refer it back to the registrar with such directions as he thinks fit. (8) The court may, as a condition of granting any application, impose such terms and conditions as it thinks fit, including a term or condition requiring any party to - (a) give security, (b) give an undertaking, (c) pay money into court, (d) pay all or any part of the costs of the proceedings, or (e) give a power of re-entry. (9) Unless the court otherwise directs, the costs of the application shall not be taxed until the general taxation of the costs of the action or matter and, where an earlier taxation is directed, Order 38 shall apply as if the word ' claimed ' were substituted for the word ' recovered ' wherever it appears. (10) An appeal shall lie to the judge from any order made by the registrar on the application and the appeal shall be disposed of in chambers 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.
Matters to be considered on pre-trial review. 1. On any day fixed for the pre-trial review of an action or matter the registrar shall, subject to the following provisions of this Order, consider the course of the proceedings and give all such directions as appear to be necessary or desirable for securing the just, expeditious and economical disposal of the action or matter.
Securing admissions and agreements. 2. On the pre-trial review the registrar shall endeavour to secure that the parties make all such admissions and agreements as ought reasonably to be made by them in relation to the proceedings and may record in the order made on the review any admission or agreement so made or any refusal to make any admission or agreement.
Application for particular direction. 3. Every party shall, so far as practicable, apply on the pre-trial review for any particular direction he may desire and shall file and give to every other party notice of his intention to do so, and if an application which might have been made on review is made subsequently, the applicant shall pay the costs of and occasioned by the application, unless the court otherwise directs.
Rules as to interlocutory applications to apply. 4. The provisions of these rules relating to interlocutory applications shall have effect as if the pre-trial review were the hearing of an interlocutory application and accordingly the registrar may, on the review, exercise any of the powers exercisable by him on an interlocutory application and may do so of his own motion if no application is made for the exercise of the power.
Non-appearance by plaintiff. 5.-(1) If the plaintiff does not appear on the pre-trial review, the registrar may, without prejudice to any other power, proceed with the review in his absence or order the action or matter to be struck out. (2) Order 21, rules 1 (2) and (3) 2 (2), shall apply, with the necessary modifications in relation to the striking out of an action or matter under paragraph (1) as they apply in relation to the striking out of proceedings under Order 21, rule 1 (1).
Admission by defendant of plaintiff's claim. 6. If, on or before the pre-trial review, the defendant admits the plaintiff's claim or such a part thereof as the plaintiff accepts in satisfaction of his claim, the registrar may give such judgment or make such order as he thinks just.
Non appearance by defendant who has not delivered admission or defence. 7.-(1) If the defendant does not appear on the pre-trial review of an action and has not delivered an admission or defence, the registrar may, if he thinks fit, enter judgment for the plaintiff. (2) If the plaintiff's claim is for unliquidated damages, any judgment entered under paragraph (1) shall be an interlocutory judgment for damages to be assessed, unless at the time of the entry of judgment the plaintiff adduces evidence as to the amount of his damages.
Non-appearance by defendant who had delivered defence. 8. If the defendant has delivered a defence but does not appear on the pre-trial review of an action, the registrar may, at the request of the plaintiff and upon proof of facts entitling him to relief, give such judgment or make such order as the registrar thinks fit.
Fixing date of hearing. 9. On or as soon as practicable after the completion by the registrar of his consideration of the matters referred to in rule 1 the proper officer shall, if the action or matter remains to be heard and determined, fix a day for the hearing and give notice thereof to every party.
Non-appearance by plaintiff. 1.-(1) If the plaintiff does not appear on the day fixed for the hearing of an action or matter, the court may, without prejudice to any other power, strike out the proceedings or, if the defendant appears, proceed with the hearing in the plaintiff's absence. (2) Where the court has received from the plaintiff an affidavit which is admissible in evidence by virtue of any Act or rule, he shall be deemed for the purpose of paragraph (1) to have appeared on the day aforesaid and to have tendered the evidence in the affidavit. (3) Where any proceedings have been struck out under paragraph (1), the court may restore them to the list on application or of its own motion.
Failure by plaintiff to prove claim. 2.-(1) If the plaintiff appears at the hearing of an action or matter but fails to prove his claim to the satisfaction of the court, it may, without prejudice to any other power, either nonsuit him or give judgment for the defendant. (2) Where, after a plaintiff has been nonsuited, or proceedings have been struck out, and costs have been awarded to the defendant, a subsequent action for the same or substantially the same cause of action is brought before payment of those costs, the court may stay the subsequent action until they have been paid.
Non-appearance or admission by defendant. 3. If on the day fixed for the hearing of an action or matter the defendant (a) does not appear but the plaintiff proves his claim to the satisfaction of the court, or (b) appears and admits the plaintiff's claim, the court may give such judgment or make such orders as may be just.
Rehearing. 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 or any other question. (4) Where the proceedings were tried by the registrar, the powers conferred on the judge by paragraphs (1) and (3) shall be exercisable by the registrar and paragraph (2) shall not apply. (5) Any application for a re-hearing 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 proper officer shall, unless the court otherwise orders, retain any money in court until the application had been heard.
Setting aside judgment given in party's absence. 2.-(1) Any judgment or order obtained against a party in his absence at the hearing may be set aside by the court on application by that party on notice. (2) The application shall be made to the judge if the judgment or order was given or made by the judge and in any other case shall be made to the registrar.
Setting aside on failure of postal service. 3.-(1) Where in an action or matter the originating process has been sent to the defendant or inserted in his letter-box in accordance with Order 7, rule 10 (1) (b) or 4 (a) or 13 (1) (b) or (4), and after judgment has been entered or given or an order has been made it appears to the court that the process did not come to the knowledge of the defendant in due time, the court may of its own motion set aside the judgment or order and may give any such directions as the court thinks fit [1983]. (2) The proper officer shall give notice to the plaintiff of the setting aside of any judgment or order under this rule.
Setting aside default judgment. 4.-(1) Without prejudice to rule 3, the court may, on application or of its own motion, set aside or vary any judgment entered in a default action pursuant to Order 9, rule 6. (2) An application under paragraph (1) shall be made on notice.
Non-compliance with rules. 5.-(1) Where there has been a failure to comply with any requirement of these rules, the failure shall be treated as an irregularity and shall not nullify the proceedings, but the court may set aside the proceedings wholly or in part or exercise its powers under these rules to allow any such amendments and to give any such directions as it thinks fit. (2) No application to set aside any proceedings for irregularity shall be granted unless made within a reasonable time, nor if the party applying has taken any step in the proceedings after knowledge of the irregularity. (3) Where any such application is made, the grounds of objection shall be stated in the notice. (4) The expression ' proceedings ' in paragraph (1), and where it first occurs in paragraph (2), includes any step taken in the proceedings and any document, judgment or order therein.
Appeal from registrar. 6.-(1) Any party affected by a judgment or final order of the registrar may, except where he has consented to the terms thereof, 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 thereof, or (b) give any other judgment or make any other order in substitution for the judgment or order appealed from, or (c) remit the action or matter or any question therein to the registrar 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.
Costs to be regulated by scales. 3.-(1) For the regulation of solicitors' charges and disbursements otherwise than for the purpose of rule 18 or 19, there shall be four scales of costs, namely a lower scale and three higher scales as set out in Appendix A. (2) The scales shall have effect subject to and in accordance with the provisions of this Order and any directions contained in the scales. (3) In relation to a sum of money only, the scales shall apply as follows:- Sum of money Scale applicable Exceeding B25 but not exceeding B100 lower scale Exceeding B100 but not exceeding B500 scale 1 Exceeding B500 but not exceeding B3,000 scale 2 Exceeding B3,000 scale 3. (4) Where the sum of money does not exceed B25, no solicitors' charges shall be allowed as between party and party, unless a certificate is granted under rule 4 (6). (5) In addition to the disbursements shown in the scales the appropriate court fees shall be allowable. (6) In relation to proceedings referred to arbitration under Order 19, rule 2 (3), this rule is without prejudice to rule 6 of that Order.
Determination of scale. 4.-(1) Subject to this Order, the scale of costs in an action for the recovery of a sum of money only shall be determined - (a) as regards the costs of the plaintiff, by the amount recovered; (b) as regards the costs of the defendant, by the amount claimed; but nothing in this paragraph shall apply to an action under the equity jurisdiction or to an admiralty action or an action in which the title to a hereditament comes in question. (2) In relation to third party proceedings, paragraph (1) shall have effect as if the defendant issuing the third party notice were the plaintiff and the third party were the defendant. (3) Where in an action to which paragraph (1) applies there is a counterclaim for a sum of money only, that paragraph shall have effect in relation to the costs exclusively referable to the counterclaim as if the references therein to the amount recovered and the amount claimed were references to the amount recovered on the counterclaim and the amount of the counterclaim respectively. (4) Where an action to which paragraph (1) applies has been transferred from the High Court to a county court and the amount remaining in dispute at the date on which the registrar receives the documents referred to in section 40 (7) of the Act is less than the amount originally claimed, paragraph (1) (b) shall have effect as if the reference therein to the amount claimed were a reference to the amount remaining in dispute at that date. [1984]. (5) Paragraph (1) shall have effect in relation to garnishee proceedings as if the judgment creditor were the plaintiff and the garnishee or, as the case may be, the judgment debtor were the defendant. (6) In any proceedings in which the judge certifies that a difficult question of law or a question of fact of exceptional complexity is involved, he may award costs on such scale as he thinks fit. (7) In proceedings to which none of the foregoing paragraphs applies, costs shall be on such scale as the judge when awarding the costs, or the registrar when taxing or assessing them, may determine.
Discretionary allowances. 5. Where in the scales of costs - (a) an upper and a lower sum of money are specified against an item, or (b) the amount to be allowed in respect of an item is directed not to exceed a specified sum, or (c) no amount is specified against an item, the amount of costs to be allowed in respect of that item shall, subject to rules 9 and 17, be in the discretion of the registrar within the limits of the sums, if any, so specified, and in exercising his discretion the registrar shall have regard to all the circumstances to which a taxing officer of the Supreme Court is required to have regard when determining the amount to be allowed in respect of items of a similar character in the scale of costs prescribed for use in the Supreme Court.