Statutory Instruments 1998 No. 3132 (L. 17)
The Civil Procedure Rules 1998
- continued

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SCHEDULE 1
Rule 50(3)


RSC ORDER 10


SERVICE OF ORIGINATING PROCESS: GENERAL PROVISIONS

Service of claim form in certain actions for possession of land
     Rule 4 Where a claim form contains a claim for the possession of land, the Court may - 

    (a) if satisfied on an application without notice being served on any other party that no person appears to be in possession of the land and that service cannot be otherwise effected on any defendant, authorise service on that defendant to be effected by affixing a copy of the claim form to some conspicuous part of the land;

    (b) if satisfied on such an application that no person appears to be in possession of the land and that service could not otherwise have been effected on any defendant, order that service already effected by affixing a copy of the claim form to some conspicuous part of the land shall be treated as good service on that defendant.



RSC ORDER 11

SERVICE OF PROCESS, ETC., OUT OF THE JURISDICTION

Principal cases in which service of claim form out of jurisdiction is permissible
     Rule 1  - (1) Provided that the claim form does not contain any claim mentioned in Order 75, r.2 (1) and is not a claim form to which paragraph (2) of this rule applies, a claim form may be served out of the jurisdiction with the permission of the Court if - 

    (2) A claim form may be served out of the jurisdiction on a defendant without the permission of the Court provided that each claim against that defendant is either - 

    (a) a claim which by virtue of the Civil Jurisdiction and Judgments Act 1982[92] the Court has power to hear and determine, made in proceedings to which the following conditions apply - 

      (i) no proceedings between the parties concerning the same cause of action are pending in the courts of any other part of the United Kingdom or of any other Convention territory; and

      (ii) either the defendant is domiciled in any part of the United Kingdom or in any other Convention territory, or the proceedings begun by the claim form are proceedings to which Article 16 of Schedule 1, 3C or 4 refers, or the defendant is a party to an agreement conferring jurisdiction to which Article 17 of Schedule 1, 3C or 4 to that Act applies; or

    (b) a claim which by virtue of any other enactment the High Court has power to hear and determine notwithstanding that the person against whom the claim is made is not within the jurisdiction of the Court or that the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction.

    (4) For the purposes of this rule, and of r.9 of this Order, domicile is to be determined in accordance with the provisions of sections 41 to 46 of the Civil Jurisdiction and Judgments Act 1982 and "Convention territory" means the territory or territories of any Contracting State, as defined by s.1 (3) of that Act, to which, as defined in s.1 (1) of that Act, the Brussels or the Lugano Convention apply.

The period for filing an acknowledgment of service or filing or serving an admission where the claim form is served under rule 1(2)
     Rule1A  - (1) This rule sets out the period for filing an acknowledgment of service under CPR Part 10 or filing or serving an admission under CPR Part 14 where a claim form has been served out of the jurisdiction under rule 1(2).

    (2) If the claim form is to be served under rule 1(2)(a) in Scotland, Northern Ireland or in the European territory of another contracting state the period is - 

    (a) where the defendant is served with a claim form which states that particulars of claim are to follow, 21 days after the service of the particulars of claim; and

    (b) in any other case, 21 days after service of the claim form.

    (3) If the claim form is to be served under rule 1(2)(a) in any other territory of a Contracting State the period is - 

    (a) where the defendant is served with a claim form which states that particulars of claim are to follow, 31 days after the service of the particulars of claim; and

    (b) in any other case, 31 days after service of the claim form.

    (4) If the claim form is to be served under - 

    (a) rule 1(2)(a) in a country not referred to in paragraphs (2) or (3); or

    (b) rule 1(2)(b),

the period is set out in the relevant practice direction.

The period for filing a defence where the claim form is served under rule 1(2)
     Rule1B  - (1) This rule sets out the period for filing a defence under CPR Part 15 where a claim form has been served out of the jurisdiction under rule 1(2).

    (2) If the claim form is to be served under rule 1(2)(a) in Scotland, Northern Ireland or in the European territory of another contracting state the period is - 

    (a) 21 days after service of the particulars of claim; or

    (b) if the defendant files an acknowledgment of service under CPR Part 8, 35 days after service of the particulars of claim.

    (3) If the claim form is to be served under rule 1(2)(a) in any other territory of a Contracting State the period is - 

    (a) 31 days after service of the particulars of claim; or

    (b) if the defendant files an acknowledgment of service under CPR Part 8, 45 days after service of the particulars of claim.

    (4) If the claim form is to be served under - 

    (a) rule 1(2)(a) in a country not referred to in paragraphs (2) or (3); or

    (b) rule 1(2)(b),

the period is set out in the relevant practice direction.

Application for, and grant of, permission to serve claim form out of jurisdiction
     Rule 4  - (1) An application for the grant of permission under rule 1 (1) must be supported by written evidence stating - 

    (a) the grounds on which the application is made;

    (b) that in the belief of the witness the claimant has a good cause of action;

    (c) in what place or country the defendant is, or probably may be found; and

    (d) where the application is made under rule 1 (1)(c), the grounds for the belief of the witness that there is between the claimant and the person on whom a claim form has been served a real issue which the claimant may reasonably ask the Court to try.

    (2) No such permission shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.

    (3) Where the application is for the grant of permission under rule 1 to serve a claim form in Scotland or Northern Ireland, if it appears to the Court that there may be a concurrent remedy there, the Court, in deciding whether to grant permission shall have regard to the comparative cost and convenience of proceeding there or in England, and (where that is relevant) to the powers and jurisdiction of the sheriff court in Scotland or the county courts or courts of summary jurisdiction in Northern Ireland.

    (4) An order granting under rule 1 permission to serve a claim form, out of the jurisdiction must specify the periods within which the defendant may - 

    (a) file an acknowledgment of service in accordance with CPR Part 10;

    (b) file or serve an admission in accordance with CPR Part 14; and

    (c) file a defence in accordance with CPR Part 15.

Service of claim form abroad: general
     Rule 5  - (1) Subject to paragraphs (2) to (8) of this rule - 

    (a) a claim form must be served personally on each defendant by the claimant or his agent;

    (b) where a defendant's solicitor indorses on the claim form a statement that he accepts service of the claim form on behalf of that defendant, the claim form shall be deemed to have been duly served on that defendant and to have been so served on the date on which the indorsement was made;

    (c) where a claim form is not duly served on a defendant but he acknowledges service of it, the claim form shall be deemed, unless the contrary is shown, to have been duly served on him and to have been so served on the date on which he acknowledges service;

    (d) CPR rule 6.8 (service by an alternative method) shall apply in relation to the claim form.

    (2) Nothing in this rule or in any order or direction of the court made by virtue of it shall authorise or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country.

    (3) A claim form which is to be served out of the jurisdiction - 

    (a) need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected; and

    (b) need not be served by the claimant or his agent if it is served by a method provided for by rule 6 or rule 7.

    (5) An official certificate stating that a claim form as regards which rule 6 has been complied with has been served on a person personally or in accordance with the law of the country in which service was effected, on a specified date, being a certificate - 

    (a) by a British consular authority in that country;

    (b) by the government or judicial authorities of that country; or

    (c) by any other authority designated in respect of that country under the Hague Convention,

shall be evidence of the facts so stated.

    (6) An official certificate by the Secretary of State stating that a claim form has been duly served on a specified date in accordance with a request made under rule 7 shall be evidence of that fact.

    (7) A document purporting to be such a certificate as is mentioned in paragraph (5) or (6) shall, until the contrary is proved, be deemed to be such a certificate.

    (8) In this rule and rule 6 "the Hague Convention" means the Convention on the service abroad of judicial and extra - judicial documents in civil or commercial matters signed at the Hague on November 15, 1965.

Service of claim form abroad through foreign governments, judicial authorities and British consuls
     Rule 6  - (1) Save where a claim form is to be served pursuant to paragraph (2A) this rule does not apply to service in - 

    (a) Scotland, Northern Ireland, the Isle of Man or the Channel Islands;

    (b) any independent Commonwealth country;

    (c) any associated state;

    (d) any colony;

    (e) the Republic of Ireland.

    (2) Where in accordance with these rules a claim form is to be served on a defendant in any country with respect to which there subsists a Civil Procedure Convention (other than the Hague Convention) providing for service in that country of process of the High Court, the claim form may be served - 

    (a) through the judicial authorities of that country; or

    (b) through a British consular authority in that country (subject to any provision of the convention as to the nationality of persons who may be so served).

    (2A) Where in accordance with these rules, a claim form is to be served on a defendant in any country which is a party to the Hague Convention, the claim form may be served - 

    (a) through the authority designated under the Convention in respect of that country; or

    (b) if the law of that country permits - 

      (i) through the judicial authorities of that country, or

      (ii) through a British consular authority in that country.

    (3) Where in accordance with these rules a claim form is to be served on a defendant in any country with respect to which there does not subsist a Civil Procedure Convention providing for service in that country of process of the High Court, the claim form may be served - 

    (a) through the government of that country, where that government is willing to effect service; or

    (b) through a British consular authority in that country, except where service through such an authority is contrary to the law of that country.

    (4) A person who wishes to serve a claim form by a method specified in paragraph (2), (2A) or (3) must file in the Central Office of the Supreme Court a request for service of the claim form by that method, together with a copy of the claim form and an additional copy thereof for each person to be served.

    (5) Every copy of a claim form filed under paragraph (4) must be accompanied by a translation of the claim form in the official language of the country in which service is to be effected or, if there is more than one official language of that country, in any one of those languages which is appropriate to the place in that country where service is to be effected:

    Provided that this paragraph shall not apply in relation to a copy of a claim form which is to be served in a country the official language of which is, or the official languages of which include, English, or is to be served in any country by a British consular authority on a British subject, unless the service is to be effected under paragraph (2) and the Civil Procedure Convention with respect to that country expressly requires the copy to be accompanied by a translation.

    (6) Every translation lodged under paragraph (5) must be certified by the person making it to be a correct translation, and the certificate must contain a statement of that person's full name, of his address and of his qualifications for making the translation.

    (7) Documents duly filed under paragraph (4) shall be sent by the Senior Master to the Parliamentary Under - Secretary of State to the Foreign Office with a request that he arrange the claim form to be served by the method indicated in the request lodged under paragraph (4) or, where alternative methods are so indicated, by such one of those methods as is most convenient.

Service of claim form in certain actions under certain Acts
     Rule 7  - (1) Subject to paragraph (4) where a person to whom permission has been granted under rule 1 to serve a claim form on a State, as defined in section 14 of the State Immunity Act 1978[93], wishes to have the claim form served on that State, he must file in the Central Office - 

    (a) a request for service to be arranged by the Secretary of State; and

    (b) a copy of the claim form; and

    (c) except where the official language of the State is, or the official languages of the State include, English, a translation of the claim form in the official language or one of the official languages of that State.

    (2) Rule 6 (6) shall apply in relation to a translation filed under paragraph (1) of this rule as it applies in relation to a translation filed under paragraph (5) of that rule.

    (3) Documents duly filed under this Rule shall be sent by the Senior Master to the Secretary of State with a request that the Secretary of State arrange for the claim form to be served.

    (4) Where section 12 (6) of the State Immunity Act 1978 applies and the State has agreed to a method of service other than that provided by the preceding paragraphs, the claim form may be served either by the method agreed or in accordance with the preceding paragraphs of this rule.

Undertaking to pay expenses of service by Secretary of State
     Rule 8 Every request lodged under rule 6 (4) or rule 7 must contain an undertaking by the person making the request to be responsible personally for all expenses incurred by the Secretary of State in respect of the service requested and, on receiving due notification of the amount of those expenses, to pay that amount to the Finance Officer of the office of the Secretary of State and to produce a receipt for the payment to the proper officer of the High Court.

Applications for an interim remedy under section 25 (1) of the Civil Jurisdiction and Judgments Act 1982
     Rule 8A  - (1) A claim form for an interim remedy under section 25 (1) of the Civil Jurisdiction and Judgments Act 1982[94] (as extended by Order in Council made under section 25 (3)) may be served out of the jurisdiction with the permission of the Court.

    (2) An application for the grant of permission under paragraph (1) must be supported by written evidence stating - 

    (a) the grounds on which the application is made;

    (b) that in the belief of the witness the claimant has a good claim to an interim remedy;

    (c) in what place or country the defendant is, or probably may be, found.

    (3) The following provisions of this Order shall apply, with the necessary modifications, where service is to be effected under this rule as they apply where service is effected under rule 1 - 

    Rule 1A (period for acknowledging service or filing or serving admission)

    Rule 1B (period for filing defence);

    Rule 4 (2), (3) and (4) (grant of permission);

    Rule 5 (service of claim form abroad: general);

    Rule 6 (service of claim form abroad through foreign governments, etc.); and

    Rule 8 (undertaking to pay expenses of service).

Service of petition and order etc.
     Rule 9  - (1) Rule 1 of this Order shall apply to the service out of the jurisdiction of a petition as it applies to service of a claim form.

    (4) Any application notice issued or order made in any proceedings may be served out of the jurisdiction with the permission of the Court but permission shall not be required for such service in any proceedings in which the claim form may by these rules or under any Act be served out of the jurisdiction without permission.

    (5) Rule 4 (1), (2) and (3) shall, so far as applicable, apply in relation to an application for the grant of permission under this rule as they apply in relation to an application for the grant of permission under rule 1.

    (7) Rules 5, 6 and 8 shall apply in relation to any document for the service of which out of the jurisdiction permission has been granted under this rule as they apply in relation to a claim form.

Order to apply to county court
     Rule 10 This order applies to proceedings in any county court in addition to proceedings in the High Court.



RSC ORDER 15

CAUSES OF ACTION, COUNTERCLAIMS AND PARTIES

Proceedings against estates
     Rule 6A  - (1) Where any person against whom a claim would have lain has died but the cause of action survives, the claim may, if no grant of probate or administration has been made, be brought against the estate of the deceased.

    (2) Without prejudice to the generality of paragraph (1), a claim brought against "the personal representatives of A.B. deceased" shall be treated, for the purposes of that paragraph, as having been brought against his estate.

    (3) A claim purporting to have been commenced against a person shall be treated, if he was dead at its commencement, as having been commenced against his estate in accordance with paragraph (1), whether or not a grant of probate or administration was made before its commencement.

    (4) In any such claim as is referred to in paragraph (1) or (3) - 

    (a) the claimant shall, during the period of validity for service of the claim form, apply to the court for an order appointing a person to represent the deceased's estate for the purpose of the proceedings or, if a grant of probate or administration has been made for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;

    (b) the court may, at any stage of the proceedings and on such terms as it thinks just and either of its own motion or on application, make any such order as is mentioned in paragraph (a) and allow such amendments (if any) to be made and make such other order as the Court thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.

    (5) Before making an order under paragraph (4) the Court may require notice to be given to any insurer of the deceased who has an interest in the proceedings and to such (if any) of the persons having an interest in the estate as it thinks fit.

    (5A) Where an order is made under paragraph (4) appointing the Official Solicitor to represent the deceased's estate, the appointment shall be limited to his accepting service of the claim form by which the proceedings were begun unless, either on making such an order or on a subsequent application, the Court, with the consent of the Official Solicitor, directs that the appointment shall extend to taking further steps in the proceedings.

    (6) Where an order is made under paragraph (4), rules 7 (4) and 8 (3) and (4) shall apply as if the order had been made under rule 7 on the application of the claimant.

    (7) Where no grant of probate or administration has been made, any judgment or order given or made in the proceedings shall bind the estate to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceedings.

Change of parties by reason of death, etc.
     Rule 7  - (1) Where a party to a claim dies or becomes bankrupt but the cause of action survives, the claim shall not abate by reason of the death or bankruptcy.

Failure to proceed after death of party
     Rule 9  - (1) If after the death of a claimant or defendant in any claim the cause of action survives, but no order under rule 7 is made substituting as claimant any person in whom the cause of claim vests or, as the case may be, the personal representatives of the deceased defendant, the defendant or, as the case may be, those representatives may apply to the Court for an order that unless the claim is proceeded with within such time as may be specified in the order the claim shall be struck out as against the claimant or defendant, as the case may be, who has died; but where it is the claimant who has died, the Court shall not make an order under this rule unless satisfied that due notice of the application has been given to the personal representatives (if any) of the deceased claimant and to any other interested persons who, in the opinion of the Court, should be notified.

Relator actions
     Rule 11 Before the name of any person is used in any claim as a relator, that person must give a written authorisation so to use his name to his solicitor and the authorisation must be filed in the Central Office of the Supreme Court or Chancery Chambers, or, if the claim form is to issue out of a district registry, in that registry.

Representative proceedings
     Rule 12  - (1) Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

    (2) At any stage of proceedings under this rule the Court may, on the application of the claimant, and on such terms, if any, as it thinks fit, appoint any one or more of the defendants or other persons as representing whom the defendants are sued to represent all, or all except one or more, of those persons in the proceedings; and where, in exercise of the power conferred by this paragraph, the Court appoints a person not named as a defendant, it shall make an order adding that person as a defendant.

    (3) A judgment or order given in proceedings under this rule shall be binding on all the persons as representing whom the claimants sue or, as the case may be, the defendants are sued, but shall not be enforced against any person not a party to the proceedings except with the permission of the Court.

    (4) An application for the grant of permission under paragraph (3) must be made in accordance with CPR Part 23 (general rules about applications for court orders) and the application notice must be served personally on the person against whom it is sought to enforce the judgment or order.

    (5) Notwithstanding that a judgment or order to which any such application relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability.

    (6) The Court hearing an application for the grant of permission under paragraph (3) may order the question whether the judgment or order is enforceable against the person against whom the application is made to be tried and determined in any manner in which any issue or question in claim may be tried and determined.

Derivative claims
     Rule 12A  - (1) This rule applies to every claim by one or more shareholders of a company where the cause of action is vested in the company and relief is accordingly sought on its behalf (referred to in this rule as a "derivative claim").

    (2) Where a defendant in a derivative claim has responded to the particulars of claim, the claimant must apply to the Court for permission to continue the claim.

    (3) The application must be supported by a witness statement or affidavit verifying the facts on which the claim and the entitlement to sue on behalf of the company are based.

    (4) Unless the Court otherwise orders, the application must be issued within 21 days after the relevant date, and must be served, together with the witness statement or affidavit in support and any exhibits to the witness statement or affidavit, not less than 10 clear days before the return day on all defendants who have responded to the particulars of claim; any defendant so served may show cause against the application by witness statement or affidavit or otherwise.

    (5) In paragraph (4), "the relevant date" means the later of - 

    (a) the date of service of the particulars of claim; or

    (b) the date when the defendant responded to the particulars of claim (provided that, where there is more than one defendant, that date shall be the earliest date when any of them respond).

    (6) Nothing in this rule shall prevent the claimant from applying for interim relief pending the determination of an application for permission to continue the claim.

    (7) In a derivative claim, CPR rule 15.4 (period for filing a defence) shall not have effect unless the Court grants permission to continue the claim and, in that case, shall have effect as if it required the defendant to serve a defence within 14 days after the order giving permission to continue, or within such other period as the Court may specify.

    (8) On the hearing of the application under paragraph (2), the Court may - 

    (a) grant permission to continue the claim, for such period and upon such terms as the Court may think fit;

    (b) subject to paragraph (11), dismiss the claim; or

    (c) adjourn the application and give such directions as to joinder of parties, the filing of further evidence, disclosure, cross examination of witnesses and otherwise as it may consider expedient.

    (9) If the claimant does not apply for permission to continue the claim as required by paragraph (2) within the time laid down in paragraph (4), any defendant who has responded to the particulars of claim may apply for an order to dismiss the proceedings or any claim made in them by way of derivative claim.

    (10) On the hearing of such an application for dismissal, the Court may - 

    (a) subject to paragraph (11), dismiss the claim;

    (b) if the claimant so requests, grant the claimant (on such terms as to costs or otherwise as the Court may think fit) an extension of time to apply for permission to continue the claim; or

    (c) make such other order as may in the circumstances be appropriate.

    (11) Where only part of the relief claimed is sought on behalf of the company, the Court may dismiss the claim for that part of the relief under paragraphs (8) and (10), without prejudice to the claimant right to continue the claim as to the remainder of the relief and CPR rule 15.4 (period for filing a defence) shall apply as modified by paragraph (7).

    (12) If there is a material change in circumstances after the Court has given permission to the claimant to continue the claim in pursuance of an application under paragraph (2), any defendant who has responded to the particulars of claim may make an application supported by witness statement or affidavit requiring the claimant to show cause why the Court should not dismiss the proceedings or any claim made in them by way of derivative claim. On such application the Court shall have the same powers as it would have had upon an application under paragraph (2).

    (13) The claimant may include in an application under paragraph (2) an application for an indemnity out of the assets of the company in respect of costs incurred or to be incurred in the claim and the Court may grant such indemnity upon such terms as may in the circumstances be appropriate.

    (14) So far as possible, any application under paragraph (13) and any application by the claimant under CPR Part 24 shall be made so as to be heard at the same time as the application under paragraph (2).




Notes


[85] 1965. c.57.back

[86] 1992 c.4.back

[87] 1994 c.37.back

[88] 1986 c.60.back

[89] 1987 c.22.back

[90] 1988 c.33.back

[91] 1987 c.24.back

[92] 1982 c.27; Schedule 1 was substituted by S.I. 1989/1346; Schedule 3C was inserted by the Civil Jurisdiction and Judgments Act 1991(c.12), section 1(3), schedule 1; Schedule 4 was amended by S.I. 1993/603. Sections 41 to 46 were amended by the Civil Jurisdiction and Judgments Act 1991, section 3, schedule 2, paragraphs 16 to 21.back

[93] 1978 c.33.back

[94] 1982 c.27. Section 25 was amended by the Civil Jurisiction and Judgments Act 1991 (c.12), section 3, schedule 2, paragraph 12.back



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