Statutory Instruments 1998 No. 3132 (L. 17)
The Civil Procedure Rules 1998
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PART 21

CHILDREN AND PATIENTS




Contents of this Part
Scope of this Part Rule 21.1
Requirement for litigation friend in proceedings by or against children and patients Rule 21.2
Stage of proceedings at which a litigation friend becomes necessary Rule 21.3
Who may be a litigation friend without a court order Rule 21.4
How a person becomes a litigation friend without a court order Rule 21.5
How a person becomes a litigation friend by court order Rule 21.6
Court's power to change litigation friend and to prevent person acting as litigation friend Rule 21.7
Appointment of litigation friend by court order - supplementary Rule 21.8
Procedure where appointment of litigation friend ceases Rule 21.9
Compromise etc. by or on behalf of child or patient Rule 21.10
Control of money recovered by or on behalf of child or patient Rule 21.11
Appointment of guardian of child's estate Rule 21.12

Scope of this Part
     21.1  - (1) This Part - 

    (a) contains special provisions which apply in proceedings involving children and patients; and

    (b) sets out how a person becomes a litigation friend.

    (2) In this Part - 

(Rule 6.6 contains provisions about the service of documents on children and patients)

(Rule 48.5 deals with costs where money is payable by or to a child or patient)

Requirement for litigation friend in proceedings by or against children and patients
     21.2  - (1) A patient must have a litigation friend to conduct proceedings on his behalf.

    (2) A child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under paragraph (3).

    (3) The court may make an order permitting the child to conduct proceedings without a litigation friend.

    (4) An application for an order under paragraph (3) - 

    (5) Where - 

Stage of proceedings at which a litigation friend becomes necessary
    
21.3  - (1) This rule does not apply where the court has made an order under rule 21.2(3).

    (2) A person may not, without the permission of the court - 

    (3) If a party becomes a patient during proceedings, no party may take any step in the proceedings without the permission of the court until the patient has a litigation friend.

    (4) Any step taken before a child or patient has a litigation friend shall be of no effect unless the court otherwise orders.

Who may be a litigation friend without a court order
    
21.4  - (1) This rule does not apply if the court has appointed a person to be a litigation friend.

    (2) A person authorised under Part VII of the Mental Health Act 1983 to conduct legal proceedings in the name of a patient or on his behalf is entitled to be the litigation friend of the patient in any proceedings to which his authority extends.

    (3) If nobody has been appointed by the court or, in the case of a patient, authorised under Part VII, a person may act as a litigation friend if he - 

How a person becomes a litigation friend without a court order
    
21.5  - (1) If the court has not appointed a litigation friend, a person who wishes to act as a litigation friend must follow the procedure set out in this rule.

    (2) A person authorised under Part VII of the Mental Health Act 1983 must file an official copy(GL) of the order or other document which constitutes his authorisation to act.

    (3) Any other person must file a certificate of suitability stating that he satisfies the conditions specified in rule 21.4(3).

    (4) A person who is to act as a litigation friend for a claimant must file - 

    (5) A person who is to act as a litigation friend for a defendant must file - 

at the time when he first takes a step in the proceedings on behalf of the defendant.

    (6) The litigation friend must - 

(Rule 6.10 sets out the details to be contained in a certificate of service)

How a person becomes a litigation friend by court order
    
21.6  - (1) The court may make an order appointing a litigation friend.

    (2) An application for an order appointing a litigation friend may be made by - 

    (3) Where - 

    (4) An application for an order appointing a litigation friend must be supported by evidence.

    (5) The court may not appoint a litigation friend under this rule unless it is satisfied that the person to be appointed complies with the conditions specified in rule 21.4(3).

Court's power to change litigation friend and to prevent person acting as litigation friend
    
21.7  - (1) The court may - 

    (2) An application for an order under paragraph (1) must be supported by evidence.

    (3) The court may not appoint a litigation friend under this rule unless it is satisfied that the person to be appointed complies with the conditions specified in rule 21.4(3).

Appointment of litigation friend by court order - supplementary
    
21.8  - (1) An application for an order under rule 21.6 or 21.7 must be served on every person on whom, in accordance with rule 6.6 (service on parent, guardian etc.), the claim form should be served.

    (2) Where an application for an order under rule 21.6 is in respect of a patient, the application must also be served on the patient unless the court orders otherwise.

    (3) An application for an order under rule 21.7 must also be served on - 

    (4) On an application for an order under rule 21.6 or 21.7, the court may appoint the person proposed or any other person who complies with the conditions specified in rule 21.4(3).

Procedure where appointment of litigation friend ceases
    
21.9  - (1) When a child who is not a patient reaches the age of 18, a litigation friend's appointment ceases.

    (2) When a party ceases to be a patient, the litigation friend's appointment continues until it is ended by a court order.

    (3) An application for an order under paragraph (2) may be made by - 

    (4) The child or patient in respect of whom the appointment to act has ceased must serve notice on the other parties - 

    (5) If he does not do so within 28 days after the day on which the appointment of the litigation friend ceases the court may, on application, strike out(GL) any claim or defence brought by him.

    (6) The liability of a litigation friend for costs continues until - 

Compromise etc. by or on behalf of child or patient
    
21.10  - (1) Where a claim is made - 

no settlement, compromise or payment and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or patient, without the approval of the court.

    (2) Where - 

the claim must - 

(Rule 48.5 contains provisions about costs where money is payable to a child or patient)

Control of money recovered by or on behalf of child or patient
    
21.11  - (1) Where in any proceedings - 

    (2) Directions given under this rule may provide that the money shall be wholly or partly paid into court and invested or otherwise dealt with.

Appointment of guardian of child's estate
    
21.12  - (1) The court may appoint the Official Solicitor to be a guardian of a child's estate where - 

    (2) The court may not appoint the Official Solicitor under this rule unless - 

    (3) The Official Solicitor's appointment may continue only until the child reaches 18.



PART 22

STATEMENTS OF TRUTH




Contents of this Part
Documents to be verified by a statement of truth Rule 22.1
Failure to verify a statement of case Rule 22.2
Failure to verify a witness statement Rule 22.3
Power of the court to require a document to be verified Rule 22.4

Documents to be verified by a statement of truth
     22.1  - (1) The following documents must be verified by a statement of truth - 

    (a) a statement of case;

    (b) a response complying with an order under rule 18.1 to provide further information; and

    (c) a witness statement.

    (2) Where a statement of case is amended, the amendments must be verified by a statement of truth unless the court orders otherwise.

(Part 17 provides for amendments to statements of case)

    (3) If an applicant wishes to rely on matters set out in his application notice as evidence, the application notice must be verified by a statement of truth.

    (4) Subject to paragraph (5), a statement of truth is a statement that - 

    (a) the party putting forward the document; or

    (b) in the case of a witness statement, the maker of the witness statement,

believes the facts stated in the document are true.

    (5) If a party is conducting proceedings with a litigation friend, the statement of truth in - 

    (a) a statement of case;

    (b) a response; or

    (c) an application notice,

    is a statement that the litigation friend believes the facts stated in the document being verified are true.

    (6) The statement of truth must be signed by - 

    (a) in the case of a statement of case, a response or an application - 

      (i) the party or litigation friend; or

      (ii) the legal representative on behalf of the party or litigation friend; and

    (b) in the case of a witness statement, the maker of the statement.

    (7) A statement of truth which is not contained in the document which it verifies, must clearly identify that document.

    (8) A statement of truth in a statement of case may be made by - 

    (a) a person who is not a party; or

    (b) by two parties jointly,

    where this is permitted by a relevant practice direction.

Failure to verify a statement of case
    
22.2  - (1) If a party fails to verify his statement of case by a statement of truth - 

    (2) The court may strike out(GL) a statement of case which is not verified by a statement of truth.

    (3) Any party may apply for an order under paragraph (2).

Failure to verify a witness statement
    
22.3 If the maker of a witness statement fails to verify the witness statement by a statement of truth the court may direct that it shall not be admissible as evidence.

Power of the court to require a document to be verified
    
22.4  - (1) The court may order a person who has failed to verify a document in accordance with rule 22.1 to verify the document.

    (2) Any party may apply for an order under paragraph (1).



PART 23

GENERAL RULES ABOUT APPLICATIONS FOR COURT ORDERS




Contents of this Part
Meaning of "application notice" and "respondent" Rule 23.1
Where to make an application Rule 23.2
Application notice to be filed Rule 23.3
Notice of an application Rule 23.4
Time when an application is made Rule 23.5
What an application notice must include Rule 23.6
Service of a copy of an application notice Rule 23.7
Applications which may be dealt with without a hearing Rule 23.8
Service of application where application made without notice Rule 23.9
Application to set aside or vary order made without notice Rule 23.10
Power of the court to proceed in the absence of a party Rule 23.11

Meaning of "application notice" and "respondent"
    
23.1 In this Part - 

    "application notice" means a document in which the applicant states his intention to seek a court order; and

    "respondent" means - 

    (a) the person against whom the order is sought; and

    (b) such other person as the court may direct.

Where to make an application
    
23.2  - (1) The general rule is that an application must be made to the court where the claim was started.

    (2) If a claim has been transferred to another court since it was started, an application must be made to the court to which the claim has been transferred.

    (3) If the parties have been notified of a fixed date for the trial, an application must be made to the court where the trial is to take place.

    (4) If an application is made before a claim has been started, it must be made to the court where it is likely that the claim to which the application relates will be started unless there is good reason to make the application to a different court.

    (5) If an application is made after proceedings to enforce judgment have begun, it must be made to any court which is dealing with the enforcement of the judgment unless any rule or practice direction provides otherwise.

Application notice to be filed
    
23.3  - (1) The general rule is that an applicant must file an application notice.

    (2) An applicant may make an application without filing an application notice if - 

Notice of an application
    
23.4  - (1) The general rule is that a copy of the application notice must be served on each respondent.

    (2) An application may be made without serving a copy of the application notice if this is permitted by - 

(Rule 23.7 deals with service of a copy of the application notice)

Time when an application is made
    
23.5 Where an application must be made within a specified time, it is so made if the application notice is received by the court within that time.

What an application notice must include
    
23.6 An application notice must state - 

(Part 22 requires an application notice to be verified by a statement of truth if the applicant wishes to rely on matters set out in his application notice as evidence)

Service of a copy of an application notice
    
23.7  - (1) A copy of the application notice - 

    (2) If a copy of the application notice is to be served by the court, the applicant must, when he files the application notice, file a copy of any written evidence in support.

    (3) When a copy of an application notice is served it must be accompanied by - 

    (4) If - 

the court may direct that, in the circumstances of the case, sufficient notice has been given and hear the application.

    (5) This rule does not require written evidence - 

(Part 6 contains the general rules about service of documents including who must serve a copy of the application notice)

Applications which may be dealt with without a hearing
    
23.8 The court may deal with an application without a hearing if - 

Service of application where application made without notice
    
23.9  - (1) This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice.

    (2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person - 

    (3) The order must contain a statement of the right to make an application to set aside(GL) or vary the order under rule 23.10.

Application to set aside or vary order made without notice
    
23.10  - (1) A person served with an order made on an application but on whom a copy of the application notice was not served may apply to the court for the order to be set aside(GL) or varied.

    (2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.

Power of the court to proceed in the absence of a party
    
23.11  - (1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence.

    (2) Where - 

the court may, on application or of its own initiative, re-list the application.

(Part 40 deals with service of orders)






Notes


[26] 1983 c.20.back

[27] 1989 c.41.back



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