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PART 39
MISCELLANEOUS PROVISIONS RELATING TO HEARINGS
Contents of this Part
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Interpretation |
Rule 39.1 |
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General rule - hearing to be in public |
Rule 39.2 |
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Failure to attend the trial |
Rule 39.3 |
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Timetable for trial |
Rule 39.4 |
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Trial bundles |
Rule 39.5 |
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Representation at trial of companies or other corporations |
Rule 39.6 |
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Impounded documents |
Rule 39.7 |
Interpretation
39.1
In this Part, reference to a hearing includes a reference to the trial.
General rule - hearing to be in public
39.2
- (1) The general rule is that a hearing is to be in public.
(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.
(3) A hearing, or any part of it, may be in private if -
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or patient;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person's estate; or
(g) the court considers this to be necessary, in the interests of justice.
(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.
Failure to attend the trial
39.3
- (1) The court may proceed with a trial in the absence of a party but -
(a) if no party attends the trial, it may strike out(GL) the whole of the proceedings;
(b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and
(c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).
(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.
(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside(GL).
(4) An application under paragraph (2) or paragraph (3) for an order to restore proceedings must be supported by evidence.
(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant -
(a) acted promptly when he found out that the court had exercised its power to strike out(GL) or to enter judgment or make an order against him;
(b) had a good reason for not attending the trial; and
(c) has a reasonable prospect of success at the trial.
Timetable for trial
39.4
When the court sets a timetable for a trial in accordance with rule 28.6 (fixing or confirming the trial date and giving directions - fast track) or rule 29.8 (setting a trial timetable and fixing or confirming the trial date or week - multi-track) it will do so in consultation with the parties.
Trial bundles
39.5
- (1) Unless the court orders otherwise, the claimant must file a trial bundle containing documents required by -
(a) a relevant practice direction; and
(b) any court order.
(2) The claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.
Representation at trial of companies or other corporations
39.6
A company or other corporation may be represented at trial by an employee if -
(a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and
(b) the court gives permission.
Impounded documents
39.7
- (1) Documents impounded by order of the court must not be released from the custody of the court except in compliance -
(a) with a court order; or
(b) with a written request made by a Law Officer or the Director of Public Prosecutions.
(2) A document released from the custody of the court under paragraph(1)(b) must be released into the custody of the person who requested it.
(3) Documents impounded by order of the court, while in the custody of the court, may not be inspected except by a person authorised to do so by a court order.
PART 40
JUDGMENTS AND ORDERS
Contents of this Part
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Scope of this Part |
Rule 40.1 |
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Standard requirements |
Rule 40.2 |
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Drawing up and filing of judgments and orders |
Rule 40.3 |
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Service of judgments and orders |
Rule 40.4 |
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Power to require judgment or order to be served on a party as well as his solicitor |
Rule 40.5 |
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Consent judgments and orders |
Rule 40.6 |
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When judgment or order takes effect |
Rule 40.7 |
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Time from which interest begins to run |
Rule 40.8 |
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Who may apply to set aside or vary a judgment or order |
Rule 40.9 |
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Judgment against a State in default of acknowledgment of service |
Rule 40.10 |
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Time for complying with a judgment or order |
Rule 40.11 |
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Correction of errors in judgments and orders |
Rule 40.12 |
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Cases where court gives judgment both on claim and counterclaim |
Rule 40.13 |
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Judgment in favour of certain part owners relating to the detention of goods |
Rule 40.14 |
Scope of this Part
40.1
This Part sets out rules about judgments and orders which apply except where any other of these Rules makes a different provision in relation to the judgment or order in question.
Standard requirements
40.2
- (1) Every judgment or order must state the name and judicial title of the person who made it, unless it is -
(a) default judgment entered under rule 12.4(1) (entry of default judgment where judgment is entered by a court officer) or a default costs certificate obtained under rule 47.11;
(b) judgment entered under rule 14.4, 14.5, 14.6, 14.7 and 14.9 (entry of judgment on admission where judgment is entered by a court officer); or
(c) a consent order under rule 40.6(2) (consent orders made by court officers).
(2) Every judgment or order must -
(a) bear the date on which it is given or made; and
(b) be sealed(GL) by the court.
Drawing up and filing of judgments and orders
40.3
- (1) Every judgment or order will be drawn up by the court unless -
(a) the court orders a party to draw it up;
(b) a party, with the permission of the court, agrees to draw it up;
(c) the court dispenses with the need to draw it up; or
(d) it is a consent order under rule 40.6.
(2) The court may direct that -
(a) a judgment or an order drawn up by a party must be checked by the court before it is sealed(GL); or
(b) before a judgment or an order is drawn up by the court, the parties must file an agreed statement of its terms.
(3) Where a judgment or an order is to be drawn up by a party -
(a) he must file it no later than 7 days after the date on which the court ordered or permitted him to draw it up so that it can be sealed(GL) by the court; and
(b) if he fails to file it within that period, any other party may draw it up and file it.
Service of judgments and orders
40.4
- (1) Where a judgment or an order has been drawn up by a party and is to be served by the court -
(a) the party who drew it up must file a copy to be retained at court and sufficient copies for service on him and on the other parties; and
(b) once it has been sealed(GL), the court must serve a copy of it on each party to the proceedings.
(2) Unless the court directs otherwise, any order made otherwise than at trial must be served on -
(a) the applicant and the respondent; and
(b) any other person on whom the court orders it to be served.
(Rule 6.3 specifies who must serve judgments and orders)
Power to require judgment or order to be served on a party as well as his solicitor
40.5
Where the party on whom a judgment or order is to be served is acting by a solicitor, the court may order the judgment or order to be served on the party as well as on his solicitor.
Consent judgments and orders
40.6
- (1) This rule applies where all the parties agree the terms in which a judgment should be given or an order should be made.
(2) A court officer may enter and seal(GL) an agreed judgment or order if -
(a) the judgment or order is listed in paragraph (3);
(b) none of the parties is a litigant in person; and
(c) the approval of the court is not required by these Rules, a practice direction or any enactment before an agreed order can be made.
(3) The judgments and orders referred to in paragraph (2) are -
(a) a judgment or order for -
(i) the payment of an amount of money (including a judgment or order for damages or the value of goods to be decided by the court); or
(ii) the delivery up of goods with or without the option of paying the value of the goods or the agreed value.
(b) an order for -
(i) the dismissal of any proceedings, wholly or in part;
(ii) the stay(GL) of proceedings on agreed terms, disposing of the proceedings, whether those terms are recorded in a schedule to the order or elsewhere;
(iii) the stay(GL) of enforcement of a judgment, either unconditionally or on condition that the money due under the judgment is paid by instalments specified in the order;
(iv) the setting aside under Part 13 of a default judgment which has not been satisfied;
(v) the payment out of money which has been paid into court;
(vi) the discharge from liability of any party;
(vii) the payment, assessment or waiver of costs, or such other provision for costs as may be agreed.
(4) Rule 40.3 (drawing up and filing of judgments and orders) applies to judgments and orders entered and sealed(GL) by a court officer under paragraph (2) as it applies to other judgments and orders.
(5) Where paragraph (2) does not apply, any party may apply for a judgment or order in the terms agreed.
(6) The court may deal with an application under paragraph (5) without a hearing.
(7) Where this rule applies -
(a) the order which is agreed by the parties must be drawn up in the terms agreed;
(b) it must be expressed as being "By Consent";
(c) it must be signed by the legal representative acting for each of the parties to whom the order relates or, where paragraph (5) applies, by the party if he is a litigant in person.
When judgment or order takes effect
40.7
- (1) A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify.
(2) This rule applies to all judgments and orders except those to which rule 40.10 (judgment against a State) applies.
Time from which interest begins to run
40.8
- (1) Where interest is payable on a judgment pursuant to section 17 of the Judgments Act 1838[48] or section 74 of the County Courts Act 1984[49], the interest shall begin to run from the date that judgment is given unless -
(a) a rule in another Part or a practice direction makes different provision; or
(b) the court orders otherwise.
(2) The court may order that interest shall begin to run from a date before the date that judgment is given.
Who may apply to set aside or vary a judgment or order
40.9
A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.
Judgment against a State in default of acknowledgment of service
40.10
- (1) Where the claimant obtains default judgment under Part 12 on a claim against a State where the defendant has failed to file an acknowledgment of service, the judgment does not take effect until 2 months after service on the State of -
(a) a copy of the judgment; and
(b) a copy of the evidence in support of the application for permission to enter default judgment (unless the evidence has already been served on the State in accordance with an order made under Part 12).
(2) In this rule, "State" has the meaning given by section 14 of the State Immunity Act 1978[50].
Time for complying with a judgment or order
40.11
A party must comply with a judgment or order for the payment of an amount of money (including costs) within 14 days of the date of the judgment or order, unless -
(a) the judgment or order specifies a different date for compliance (including specifying payment by instalments);
(b) any of these Rules specifies a different date for compliance; or
(c) the court has stayed the proceedings or judgment.
(Parts 12 and 14 specify different dates for complying with certain default judgments and judgments on admissions)
Correction of errors in judgments and orders
40.12
- (1) The court may at any time correct an accidental slip or omission in a judgment or order.
(2) A party may apply for a correction without notice.
Cases where court gives judgment both on claim and counterclaim
40.13
- (1) This rule applies where the court gives judgment for specified amounts both for the claimant on his claim and against the claimant on a counterclaim.
(2) If there is a balance in favour of one of the parties, it may order the party whose judgment is for the lesser amount to pay the balance.
(3) In a case to which this rule applies, the court may make a separate order as to costs against each party.
Judgment in favour of certain part owners relating to the detention of goods
40.14
- (1) In this rule "part owner" means one of two or more persons who have an interest in the same goods.
(2) Where -
(a) a part owner makes a claim relating to the detention of the goods; and
(b) the claim is not based on a right to possession,
any judgment or order given or made in respect of the claim is to be for the payment of damages only, unless the claimant had the written authority of every other part owner of the goods to make the claim on his behalf as well as for himself.
(3) This rule applies notwithstanding anything in subsection (3) of section 3 of the Torts (Interference with Goods) Act 1977[51], but does not affect the remedies and jurisdiction mentioned in subsection (8) of that section.
PART 41
PROVISIONAL DAMAGES
Contents of this Part
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Application and definitions |
Rule 41.1 |
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Order for an award of provisional damages |
Rule 41.2 |
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Application for further damages |
Rule 41.3 |
Application and definitions
41.1
- (1) This Part applies to proceedings to which SCA s.32A or CCA s.51 applies.
(2) In this Part -
(a) "SCA s.32A" means section 32A of the Supreme Court Act 1981[52];
(b) "CCA s.51" means section 51 of the County Courts Act 1984[53]; and
(c) "award of provisional damages" means an award of damages for personal injuries under which -
(i) damages are assessed on the assumption referred to in SCA s.32A or CCA s.51 that the injured person will not develop the disease or suffer the deterioration; and
(ii) the injured person is entitled to apply for further damages at a future date if he develops the disease or suffers the deterioration.
Order for an award of provisional damages
41.2
- (1) The court may make an order for an award of provisional damages if -
(a) the particulars of claim include a claim for provisional damages; and
(b) the court is satisfied that SCA s.32A or CCA s.51 applies.
(Rule 16.4(1)(d) sets out what must be included in the particulars of claim where the claimant is claiming provisional damages)
(2) An order for an award of provisional damages -
(a) must specify the disease or type of deterioration in respect of which an application may be made at a future date;
(b) must specify the period within which such an application may be made; and
(c) may be made in respect of more than one disease or type of deterioration and may, in respect of each disease or type of deterioration, specify a different period within which a subsequent application may be made.
(3) The claimant may make more than one application to extend the period specified under paragraph (2)(b) or (2)(c).
Application for further damages
41.3
- (1) The claimant may not make an application for further damages after the end of the period specified under rule 41.2(2), or such period as extended by the court.
(2) Only one application for further damages may be made in respect of each disease or type of deterioration specified in the award of provisional damages.
(3) The claimant must give at least 28 days written notice to the defendant of his intention to apply for further damages.
(4) If the claimant knows -
(a) that the defendant is insured in respect of the claim; and
(b) the identity of the defendant's insurers,
he must also give at least 28 days written notice to the insurers.
(5) Within 21 days after the end of the 28 day notice period referred to in paragraphs (3) and (4), the claimant must apply for directions.
(6) The rules in Part 25 about the making of an interim payment apply where an application is made under this rule.
PART 42
CHANGE OF SOLICITOR
Contents of this Part
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Solicitor acting for a party |
Rule 42.1 |
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Change of solicitor - duty to give notice |
Rule 42.2 |
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Order that a solicitor has ceased to act |
Rule 42.3 |
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Removal of solicitor who has ceased to act on application of another party |
Rule 42.4 |
Solicitor acting for a party
42.1
Where the address for service of a party is the business address of his solicitor, the solicitor will be considered to be acting for that party until the provisions of this Part have been complied with.
(Part 6 contains provisions about the address for service)
Change of solicitor - duty to give notice
42.2
- (1) This rule applies where -
(a) a party for whom a solicitor has acted wants to change his solicitor;
(b) a party, after having conducted the claim in person, appoints a solicitor to act on his behalf (except where the solicitor is appointed only to act as an advocate for a hearing); or
(c) a party, after having conducted the claim by a solicitor, intends to act in person.
(2) Where this rule applies, the party or his solicitor (where one is acting) must -
(a) file notice of the change; and
(b) serve notice of the change on every other party and, where paragraph (1)(a) or (c) applies, on the former solicitor.
(3) The notice must state the party's new address for service.
(4) The notice filed at court must state that notice has been served as required by paragraph (2)(b).
(5) Subject to paragraph (6), where a party has changed his solicitor or intends to act in person, the former solicitor will be considered to be the party's solicitor unless and until -
(a) notice is served in accordance with paragraph (1); or
(b) the court makes an order under rule 42.3 and the order is served as required by paragraph (3) of that rule.
(6) Where the certificate of an assisted person within the meaning of the Civil Legal Aid (General) Regulations 1989[54] is revoked or discharged -
(a) the solicitor who acted for the assisted person shall cease to be the solicitor acting in the case as soon as his retainer is determined under regulation 83 of those Regulations; and
(b) if the assisted person wishes to continue -
(i) where he appoints a solicitor to act on his behalf paragraph (2) will apply as if he had previously conducted the claim in person; and
(ii) where he wants to act in person he must give an address for service.
(Rule 6.5 deals with a party's address for service)
Order that a solicitor has ceased to act
42.3
- (1) A solicitor may apply for an order declaring that he has ceased to be the solicitor acting for a party.
(2) Where an application is made under this rule -
(a) notice of the application must be given to the party for whom the solicitor is acting, unless the court directs otherwise; and
(b) the application must be supported by evidence.
(3) Where the court makes an order that a solicitor has ceased to act -
(a) a copy of the order must be served on every party to the proceedings; and
(b) if it is served by a party or the solicitor, the party or the solicitor (as the case may be) must file a certificate of service.
Removal of solicitor who has ceased to act on application of another party
42.4
- (1) Where -
(a) a solicitor who has acted for a party -
(i) has died;
(ii) has become bankrupt;
(iii) has ceased to practice; or
(iv) cannot be found; and
(b) the party has not given notice of a change of solicitor or notice of intention to act in person as required by rule 42.2(2),
any other party may apply for an order declaring that the solicitor has ceased to be the solicitor acting for the other party in the case.
(2) Where an application is made under this rule, notice of the application must be given to the party to whose solicitor the application relates unless the court directs otherwise.
(3) Where the court makes an order made under this rule -
(a) a copy of the order must be served on every other party to the proceedings; and
(b) where it is served by a party, that party must file a certificate of service.
Notes
[48]
1838 c.110. Section 17 was amended by S.I. 1998/ 2940.back
[49]
1984 c.28. Section 74 was amended by section 2 of the Private International Law (Miscellaneous Provisions) Act 1995 (c.42).back
[50]
1978 c.33.back
[51]
1977 c.32.back
[52]
1981 c.54. Section 32A was inserted by section 6(1) of the Administration of Justice Act 1982 (c.53).back
[53]
1984 c.28.back
[54]
S.I. 1989/ 339 to which there are amendments not relevant to these Rules.back
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