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

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Representation of interested persons who cannot be ascertained, etc.
     Rule 13  - (1) In any proceedings concerning - 

    (a) the estate of a deceased person; or

    (b) property subject to a trust; or

    (c) the construction of a written instrument, including a statute,

the Court, if satisfied that it is expedient so to do, and that one or more of the conditions specified in paragraph (2) are satisfied, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceedings.

    (2) The conditions for the exercise of the power conferred by paragraph (1) are as follows: - 

    (a) that the person, the class or some member of the class, cannot be ascertained or cannot readily be ascertained;

    (b) that the person, class or some member of the class, though ascertained, cannot be found;

    (c) that, though the person or the class and the members thereof can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purposes of saving expense.

    (3) Where, in any proceedings to which paragraph (1) applies, the Court exercises the power conferred by that paragraph, a judgment or order of the Court given or made when the person or persons appointed in exercise of that power are before the Court shall be binding on the person or class represented by the person or persons so appointed.

    (4) Where, in any such proceedings, a compromise is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties to the proceedings (including unborn or unascertained persons) but - 

    (a) there is some other person in the same interest before the Court who assents to the compromise or on whose behalf the Court sanctions the compromise, or

    (b) the absent persons are represented by a person appointed under paragraph (1) who so assents,

the Court, if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order has been obtained by fraud or non - disclosure of material facts.

Notice of claim to non - parties
     Rule 13A  - (1) At any stage in a claim to which this rule applies, the Court may, on the application of any party or of its own motion, direct that notice of the claim be served on any person who is not a party thereto but who will or may be affected by any judgment given therein.

    (2) An application under this rule may be made without notice being served on any other party and shall be supported by a witness statement or affidavit stating the grounds of the application.

    (3) Every notice of a claim under this rule shall be in Form No. 52 in the relevant Practice Direction and shall be issued out of the appropriate office, and the copy to be served shall be a sealed copy accompanied by a copy of the claim form and of all other statements of case served in the claim and by a form of acknowledgment of service with such modifications as may be appropriate.

    (4) A person may, within 14 days of service on him of a notice under this rule, acknowledge service of the claim form and shall thereupon become a party to the claim, but in default of such acknowledgment and subject to paragraph (5) he shall be bound by any judgment given in the claim as if he was a party thereto.

    (5) If at any time after service of such notice on any person the claim form is amended so as substantially to alter the relief claimed, the Court may direct that the judgment shall not bind such person unless a further notice together with a copy of the amended claim form is issued and served upon him under this rule.

    (6) This rule applies to any claim relating to - 

    (a) the estate of a deceased person; or

    (b) property subject to a trust.

    (7) CPR rule 7.2(2) shall apply in relation to a notice of a claim under this rule as if the notice were a claim form and the person by whom the notice is issued were the claimant.

Representation of beneficiaries by trustees, etc.
     Rule 14  - (1) Any proceedings, including proceedings to enforce a security by foreclosure or otherwise, may be brought by or against trustees, executors or administrators in their capacity as such without joining any of the persons having a beneficial interest in the trust or estate, as the case may be; and any judgment or order given or made in those proceedings shall be binding on those persons unless the Court in the same or other proceedings otherwise orders on the ground that the trustees, executors or administrators, as the case may be, could not or did not in fact represent the interests of those persons in the first - mentioned proceedings.

    (2) Paragraph (1) is without prejudice to the power of the Court to order any person having such an interest as aforesaid to be made a party to the proceedings or to make an order under rule 13.

Representation of deceased person interested in proceedings
     Rule 15  - (1) Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.

    (2) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.

Declaratory judgment
     Rule 16 No claim or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.

Conduct of proceedings
     Rule 17 The Court may give the conduct of any claim, inquiry or other proceeding to such person as it thinks fit.



RSC ORDER 17

INTERPLEADER

Entitlement to relief by way of interpleader
     Rule 1  - (1) Where - 

    (a) a person is under a liability in respect of a debt or in respect of any money, goods or chattels and he is, or expects to be, sued for or in respect of that debt or money or those goods or chattels by two or more persons making adverse claims thereto; or

    (b) claim is made to any money, goods or chattels taken or intended to be taken by a sheriff in execution under any process, or to the proceeds or value of any such goods or chattels, by a person other than the person against whom the process is issued,

the person under liability as mentioned in sub-paragraph (a) or (subject to rule 2) the sheriff, may apply to the Court for relief by way of interpleader.

    (2) References in this Order to a sheriff shall be construed as including references to any other officer charged with the execution of process by or under the authority of the High Court.

Claim to goods, etc., taken in execution
     Rule 2  - (1) Any person making a claim to or in respect of any money, goods or chattels taken or intended to be taken in execution under process of the Court, or to the proceeds or value of any such goods or chattels, must give notice of his claim to the sheriff charged with the execution of the process and must include in his notice a statement of his address, and that address shall be his address for service.

    (2) On receipt of a claim made under this rule the sheriff must forthwith give notice thereof to the execution creditor and the execution creditor must, within seven days after receiving the notice, give notice to the sheriff informing him whether he admits or disputes the claim. An execution creditor who gives notice in accordance with this paragraph admitting a claim shall only be liable to the sheriff for any fees and expenses incurred by the sheriff before receipt of that notice.

    (3) Where - 

    (a) the sheriff receives a notice from an execution creditor under paragraph (2) disputing a claim, or the execution creditor fails, within the period mentioned in that paragraph, to give the required notice; and

    (b) the claim made under this rule is not withdrawn,

the sheriff may apply to the Court for relief under this Order.

    (4) A sheriff who receives a notice from an execution creditor under paragraph (2) admitting a claim made under this rule shall withdraw from possession of the money, goods or chattels claimed and may apply to the Court for relief under this Order of the following kind, that is to say, an order restraining the bringing of a claim against him for or in respect of his having taken possession of that money or those goods or chattels.

Claim in respect of goods protected from seizure
     Rule 2A  - (1) Where a judgment debtor whose goods have been seized, or are intended to be seized, by a sheriff under a writ of execution claims that such goods are not liable to execution by virtue of section 138(3A) of the Act[95], he must within 5 days of the seizure give notice in writing to the sheriff identifying all those goods in respect of which he makes such a claim and the grounds of such claim in respect of each item.

    (2) Upon receipt of a notice of claim under paragraph (1), the sheriff must forthwith give notice thereof to the execution creditor and to any person who has made a claim to, or in respect of, the goods under rule 2 (1) and the execution creditor and any person who has made claim must, within 7 days of receipt of such notice, inform the sheriff in writing whether he admits or disputes the judgment debtor's claim in respect of each item.

    (3) The sheriff shall withdraw from possession of any goods in respect of which the judgment debtor's claim is admitted or if the execution creditor or any person claiming under rule 2 (1) fails to notify him in accordance with paragraph (2) and the sheriff shall so inform the parties in writing.

    (4) Where the sheriff receives notice from - 

    (a) the execution creditor; or

    (b) any such person to whom notice was given under paragraph (2), that the claim or any part thereof is disputed, he must forthwith seek the directions of the Court and may include therein an application for an order restraining the bringing of any claim against him for, or in respect of, his having seized any of those goods or his having failed so to do.

    (5) The sheriff's application for directions under paragraph (4) shall be made by an application in accordance with CPR Part 23 and, on the hearing of the application, the Court may - 

    (a) determine the judgment debtor's claim summarily; or

    (b) give such directions for the determination of any issue raised by such claim as may be just.

    (6) A master and a district judge of a district registry shall have power to make an order of the kind referred to in paragraph (4) and the reference to master shall be construed in accordance with rule 4.

Mode of application
     Rule 3  - (1) An application for relief under this Order must be made by claim form unless made in an existing claim, in which case it must be made by accordance with CPR Part 23.

    (2) Where the applicant is a sheriff who has withdrawn from possession of money, goods or chattels taken in execution and who is applying for relief under rule 2 (4) the claim form must be served on any person who made a claim under that rule to or in respect of that money or those goods or chattels, and that person may attend the hearing of the application.

    (4) Subject to paragraph (5) a claim form or application notice under this rule must be supported by evidence that the applicant - 

    (a) claims no interest in the subject - matter in dispute other than for charges or costs;

    (b) does not collude with any of the claimants to that subject - matter; and

    (c) is willing to pay or transfer that subject - matter into Court or to dispose of it as the Court may direct.

    (5) Where the applicant is a sheriff, he shall not provide such evidence as is referred to in paragraph (4) unless directed by the Court to do so.

    (6) Any person who makes a claim under rule 2 and who is served with a claim form under this rule shall within 14 days serve on the execution creditor and the sheriff a witness statement or affidavit specifying any money and describing any goods and chattels claimed and setting out the grounds upon which such claim is based.

    (7) Where the applicant is a sheriff a claim form under this rule must give notice of the requirement in paragraph (6).

To whom Sheriff may apply for relief
     Rule 4 An application to the Court for relief under this Order may, if the applicant is a sheriff, be made - 

    (a) where the claim in question is proceeding in the Royal Courts of Justice, to a Master or, if the execution to which the application relates has been or is to be levied in the district of a District Registry, either to a Master or to the District Judge of that Registry;

    (b) where the claim in question is proceeding in a District Registry, to the District Judge of that Registry or, if such execution has been or is to be levied in the district of some other District Registry or outside the district of any District Registry, either to the said the District Judge or to the District Judge of that other Registry or to a Master as the case may be.

Where the claim in question is proceeding in the Admiralty Court or the Family Division, references in this rule to a Master shall be construed as references to the Admiralty Registrar or to a Registrar of that Division.

Powers of Court hearing claim
     Rule 5  - (1) Where on the hearing of a claim under this Order all the persons by whom adverse claims to the subject - matter in dispute (hereafter in this Order referred to as "the interpleader claimants") appear, the Court may order - 

    (a) that any interpleader claimant be made a defendant in any claim pending with respect to the subject - matter in dispute in substitution for or in addition to the applicant for relief under this Order; or

    (b) that an issue between the interpleader claimants be stated and tried and may direct which of the interpleader claimants is to be claimant and which defendant.

    (2) Where - 

    (a) the applicant under this Order is a sheriff; or

    (b) all the interpleader claimants consent or any of them so requests; or

    (c) the question at issue between the interpleader claimants is a question of law and the facts are not in dispute,

the Court may summarily determine the question at issue between the interpleader claimants and make an order accordingly on such terms as may be just.

    (3) Where an interpleader claimant, having been duly served with a claim form under this Order, does not appear at the hearing or, having appeared, fails or refuses to comply with an order made in the proceedings, the Court may make an order declaring the interpleader claimant, and all persons claiming under him, for ever barred from prosecuting his claim against the applicant for such relief and all persons claiming under him, but such an order shall not affect the rights of the interpleader claimants as between themselves.

Power to order sale of goods taken in execution
     Rule 6 Where an application for relief under this Order is made by a sheriff who has taken possession of any goods or chattels in execution under any process, and an interpleader claimant alleges that he is entitled, under a bill of sale or otherwise, to the goods or chattels by way of security for debt, the Court may order those goods or chattels or any part thereof to be sold and may direct that the proceeds of sale be applied in such manner and on such terms as may be just and as may be specified in the order.

Power to stay proceedings
     Rule 7 Where a defendant to a claim applies for relief under this Order in the claim, the Court may by order stay all further proceedings in the claim.

Other powers
     Rule 8 Subject to the foregoing rules of this Order, the Court may in or for the purposes of any interpleader proceedings make such order as to costs or any other matter as it thinks just.

One order in several proceedings
     Rule 9 Where the Court considers it necessary or expedient to make an order in any interpleader proceedings in several proceedings pending in several Divisions, or before different Judges of the same Division, the Court may make such an order; and the order shall be entitled in all those causes or matters and shall be binding on all the parties to them.

Disclosure
     Rule 10 CPR Parts 31 and 18 shall, with the necessary modifications, apply in relation to an interpleader issue as they apply in relation to any other proceedings.

Trial of interpleader issue
     Rule 11  - (1) CPR Part 39 shall, with the necessary modifications, apply to the trial of an interpleader issue as it applies to the trial of a claim.

    (2) The Court by whom an interpleader issue is tried may give such judgment or make such order as finally to dispose of all questions arising in the interpleader proceedings.



RSC ORDER 23

SECURITY FOR COSTS

Order to apply to High Court and County Court
     Rule A1 This Order applies to proceedings both in the High Court and the county court.

Security for costs of proceedings, etc.
     Rule 1  - (1) Where, on the application of a defendant, it appears to the Court - 

    (a) that the claimant is ordinarily resident out of the jurisdiction; or

    (b) that the claimant (not being a claimant who is suing in a representative capacity) is a nominal claimant who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so; or

    (c) subject to paragraph (2) that the claimant 's address is not stated in the claim form or other originating process or is incorrectly stated therein; or

    (d) that the claimant has changed his address during the course of the proceedings with a view to evading the consequences of the litigation,

then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the claimant to give such security for the defendant's costs of the proceedings as it thinks just.

    (2) The Court shall not require a claimant to give security by reason only of paragraph (1)(c) if he satisfies the Court that the failure to state his address or the mis - statement thereof was made innocently and without intention to deceive.

    (3) The references in the foregoing paragraphs to a claimant and a defendant shall be construed as references to the person (howsoever described on the record) who is in the position of claimant or defendant, as the case may be, in the proceeding in question, including a proceeding on a counterclaim.

Manner of giving security
     Rule 2 Where an order is made requiring any party to give security for costs, the security shall be given in such manner, at such time, and on such terms (if any) as the Court may direct.

Saving for enactments
     Rule 3 This Order is without prejudice to the provisions of any enactment which empowers the Court to require security to be given for the costs of any proceedings.



RSC ORDER 30

RECEIVERS

Order to apply to High Court and County Court
     Rule A1 This Order applies to proceedings both in the High Court and the county court.

Application for receiver and injunction
     Rule 1  - (1) An application for the appointment of a receiver made in existing proceedings must be made in accordance with CPR Part 23 and the Practice Direction supplementing that Part.

    (2) An application for an injunction ancillary or incidental to an order appointing a receiver may be joined with the application for such order.

    (3) The relevant Practice Direction will apply to an application for the immediate grant of such an injunction.

Giving of security by receiver
     Rule 2  - (1) A judgment or order directing the appointment of a receiver may include such directions as the Court thinks fit as to the giving of security by the person appointed.

    (2) Where by virtue of any judgment or order appointing a person named therein to be receiver a person is required to give security in accordance with this rule he must give security approved by the Court duly to account for what he receives as receiver and to deal with it as the Court directs.

    (3) Unless the Court otherwise directs, the security shall be by guarantee.

    (4) The guarantee must be filed in the office or Registry of the Court in which the claim is proceeding and it shall be kept as of record until duly vacated.

Remuneration of receiver
     Rule 3  - (1) A person appointed receiver shall be allowed such proper remuneration, if any, as may be authorised by the Court.

    (2) The Court may direct that such remuneration shall be - 

    (a) fixed by reference to such scales or rates of professional charges as it thinks fit; or

    (b) assessed by a costs judge or a district judge.

    (3) Where remuneration is assessed by a costs judge or district judge following a direction under paragraph 2(b), CPR rules 44.4(1) and (2) and 44.5(1) will apply as though the remuneration were costs directed to be assessed on the standard basis.

    (4) An appeal shall lie from the assessment in accordance with Section 8 of CPR Part 47 (CPR Rules 47.21 to 47.27)

Service of order and notice
     Rule 4 A copy of the judgment or order appointing a receiver shall be served by the party having conduct of the proceedings on the receiver and all other parties to the proceedings in which the receiver has been appointed.

Receiver's accounts
     Rule 5  - (1) A receiver shall submit such accounts to such parties at such intervals or on such dates as the Court may direct.

    (2) Any party to whom a receiver is required to submit accounts may, on giving reasonable notice to the receiver, inspect, either personally or by an agent, the books and other papers relating to such accounts.

    (3) Any party who is dissatisfied with the accounts of the receiver may give notice specifying the item or items to which objection is taken and requiring the receiver within not less than 14 days to file his accounts with the Court and a copy of such notice shall be filed in the office or Registry of the Court dealing with the proceedings.

    (4) Following an examination by or on behalf of the Court of an item or items in an account to which objection is taken the result of such examination must be certified by a Master, the Admiralty Registrar, a District Judge of the Family Division or a District Judge, as the case may be, and an order may thereupon be made as to the incidence of any costs or expenses incurred.

Payment into Court by receiver
     Rule 6 The Court may fix the amounts and frequency of payments into Court to be made by a receiver.

Default by receiver
     Rule 7  - (1) Where a receiver fails to attend for the examination of any account of his, or fails to submit any account, provide access to any books or papers or do any other thing which he is required to submit, provide or do, he and any or all of the parties to the cause or matter in which he was appointed may be required to attend the Court sitting in private to show cause for the failure, and the Court may, either sitting in private or public, give such directions as it thinks proper including, if necessary, directions for the discharge of the receiver and the appointment of another and the payment of costs.

    (2) Without prejudice to paragraph (1) where a receiver fails to attend for the examination of any account of his or fails to submit any account or fails to pay into Court on the date fixed by the Court any sum required to be so paid, the Court may disallow any remuneration claimed by the receiver and may, where he has failed to pay any such sum into Court, charge him with interest at the rate currently payable in respect of judgment debts in the High Court on that sum while in his possession as receiver.

Directions to receivers
     Rule 8 A receiver may at any time request the Court to give him directions and such request shall state in writing the matters with regard to which directions are required.



RSC ORDER 31

SALES, ETC. OF LAND BY ORDER OF COURT: CONVEYANCING COUNSEL OF THE COURT

Order to apply to High Court and County Court
     Rule A1 This Order applies to proceedings both in the High Court and the county court.

I. Sales, etc. of Land by Order of Court


Power to order sale of land
     Rule 1 Where in any proceedings relating to any land it appears necessary or expedient for the purposes of the proceedings that the land or any part thereof should be sold, the Court may order that land or part to be sold, and any party bound by the order and in possession of that land or part, or in receipt of the rents and profits thereof, may be compelled to deliver up such possession or receipt to the purchaser or to such other person as the Court may direct.

In this Order "land" includes any interest in, or right over, land.

Manner of carrying out sale
     Rule 2  - (1) Where an order is made directing any land to be sold, the Court may permit the party or person having the conduct of the sale to sell the land in such manner as he thinks fit, or may direct that the land be sold in such manner as the Court may either by the order or subsequently direct for the best price that can be obtained, and all proper parties shall join in the sale and conveyance as the Court shall direct.

    (2) The Court may give such directions as it thinks fit for the purpose of effecting the sale, including, without prejudice to the generality of the foregoing words, directions - 

    (a) appointing the party or person who is to have the conduct of the sale;

    (b) fixing the manner of sale, whether by contract conditional on the approval of the Court, private treaty, public auction, tender or some other manner;

    (c) fixing a reserve or minimum price;

    (d) requiring payment of the purchase money into Court or to trustees or other persons;

    (e) for settling the particulars and conditions of sale;

    (f) for obtaining evidence of the value of the property;

    (g) fixing the security (if any) to be given by the auctioneer, if the sale is to be by public auction, and the remuneration to be allowed him;

    (h) requiring an abstract of the title to be referred to conveyancing counsel of the Court or some other conveyancing counsel for his opinion thereon and to settle the particulars and conditions of sale.

Certifying result of sale
     Rule 3  - (1) If either the Court has directed payment of the purchase money into Court or the Court so directs, the result of a sale by order of the Court must be certified - 

    (a) in the case of a sale by public auction, by the auctioneer who conducted the sale; and

    (b) in any other case, by the solicitor of the party or person having the conduct of the sale, and the Court may require the certificate to be verified by the witness statement or affidavit of the auctioneer or solicitor, as the case may be.

    (2) The solicitor of the party or person having the conduct of the sale must file the certificate and any witness statement or affidavit in the office of the court dealing with the proceedings.

Mortgage, exchange or partition under order of the Court
     Rule 4 Rules 2 and 3 shall, so far as applicable and with the necessary modifications, apply in relation to the mortgage, exchange or partition of any land under an order of the Court as they apply in relation to the sale of any land under such an order.

II. Conveyancing Counsel of the Court


Reference of matters to conveyancing counsel of Court
     Rule 5 The Court may refer to the conveyancing counsel of the Court - 

    (a) any matter relating to the investigation of the title to any property with a view to an investment of money in the purchase or on mortgage thereof, or with a view to the sale thereof;

    (b) any matter relating to the settlement of a draft of a conveyance, mortgage, settlement or other instrument; and

    (c) any other matter it thinks fit,

and may act upon his opinion in the matter referred.

Objection to conveyancing counsel's opinion
     Rule 6 Any party may object to the opinion given by any conveyancing counsel on a reference under rule 5, and if he does so the point in dispute shall be determined by the Judge either sitting in private or in public as he thinks fit.

Obtaining counsel's opinion on reference
     Rule 8 The order referring any matter to conveyancing counsel of the Court shall be recorded in the books of the Court and a copy of such order shall be sent by the Court to counsel and shall constitute sufficient authority for him to proceed with the reference.






Notes


[95] Section 138 was amended by the Administration of Justice Act 1985 (c.61), sections 55 and 67(2); and by the Courts and Legal Services Act 1990 (c.41), section 125(2), schedule 17, paragraph 17.back



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