Statutory Instruments 1998 No. 3132 (L. 17)
The Civil Procedure Rules 1998
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RSC ORDER 44

PROCEEDINGS UNDER JUDGMENTS AND ORDERS: CHANCERY DIVISION

Application to Orders
     Rule 1 In this order references to a judgment include references to an order.

Service of notice of judgment on person not a party
     Rule 2  - (1) Where in a claim for - 

    (a) the administration of the estate of a deceased person; or

    (b) the execution of a trust; or

    (c) the sale of any property,

the Court gives a judgment or makes a direction which affects persons not parties to the claim, the Court may when giving the judgment or at any stage of the proceedings under the judgment direct notice of the judgment to be served on any such person and any person so served shall, subject to paragraph (4), be bound by the judgment as if he had originally been a party to the claim.

    (2) If it appears that it is not practicable to serve notice of a judgment on a person directed to be served the Court may dispense with service and may also order that such person be bound by the judgment.

    (3) Every notice of a judgment for service under this rule must be indorsed with a memorandum in Form No. 52A in the relevant Practice Direction and accompanied by a form of acknowledgment of service in Form No. 15 in the relevant Practice Direction with such modifications as may be appropriate and the copy of the notice to be served shall be a sealed copy.

    (4) A person served with notice of a judgment may, within one month after service of the notice on him, and after acknowledging service apply to the Court to discharge, vary or add to the judgment.

    (5) A person served with notice of a judgment may, after acknowledging service of the notice, attend the proceedings under the judgment.

    (6) CPR Part 10 except for CPR Rule 10.2 shall apply in relation to the acknowledgment of service of a notice of judgment as if the judgment were a claim form, the person by whom the notice is served were the claimant and the person on whom it is served were a defendant.

Directions by the Court
     Rule 3  - (1) Where a judgment given in a proceedings in the Chancery Division contains directions which make it necessary to proceed in private under the judgment the Court may, when giving the judgment or at any time during proceedings under the judgment, give further directions for the conduct of those proceedings, including, in particular, directions with respect to - 

    (a) the manner in which any account or inquiry is to be prosecuted;

    (b) the evidence to be adduced in support thereof;

    (c) the preparation and service on the parties to be bound thereby of the draft of any deed or other instrument which is directed by the judgment to be settled by the Court and the service of any objections to the draft;

    (d) the parties required to attend all or any part of the proceedings;

    (e) the representation by the same solicitors of parties who constitute a class and by different solicitors of parties who ought to be separately represented; and

    (f) the time within which each proceeding is to be taken, and may fix a day or days for the further attendance of the parties.

    (2) The Court may revoke or vary any directions given under this rule.

Application of rules 5 to 8
     Rule 4 Rules 5 to 8 apply - 

    (a) where in proceedings for the administration under the direction of the Court of the estate of a deceased person the judgment directs any account of debts or other liabilities of the deceased's estate to be taken or any inquiry for next of kin or other ascertained claimants to be made; and

    (b) where in proceedings for the execution under the direction of the Court of a trust the judgment directs any such inquiry to be made,

and those rules shall, with the necessary modifications, apply where in any other proceedings the judgment directs an account of debts or other liabilities to be taken or any inquiry to be made.

Advertisements for creditors and other claimants
     Rule 5 The Court may, when giving a judgment or at any stage of proceedings under a judgment, give directions for the issue of advertisements for creditors or other claimants and may fix the time within which creditors and claimants may respond.

Examination of claims
     Rule 6  - (1) Where an account of debts or other liabilities of the estate of a deceased person has been directed, such party as the Court may direct must - 

    (a) examine the claims of persons claiming to be creditors of the estate;

    (b) determine, so far as he is able, to which of such claims the estate is liable; and

    (c) at least seven clear days before the time appointed for adjudicating on claims, make a witness statement or affidavit stating his findings and his reasons for them and listing all the other debts of the deceased which are or may still be due.

    (2) Where an inquiry for next of kin or other unascertained claimants has been directed, such party as the Court may direct must - 

    (a) examine the claims;

    (b) determine, so far as he is able, which of them are valid; and

    (c) at least seven clear days before the time appointed for adjudicating on claims, make a witness statement or affidavit stating his findings and his reasons for them.

    (3) If the personal representatives or trustees concerned are not the parties directed by the Court to examine claims, they must join with the party directed to examine them in making the witness statement or affidavit required by this rule.

Adjudication on claims
     Rule 7 For the purpose of adjudicating on claims the Court may - 

    (a) direct any claim to be investigated in such manner as it thinks fit;

    (b) require any claimant to attend and prove his claim or to furnish further particulars or evidence of it; or

    (c) allow any claim after or without proof thereof.

Notice of adjudication
     Rule 8 The Court shall give directions that there be served on every creditor whose claim or any part thereof has been allowed or disallowed, and who did not attend when the claim was disposed of, a notice informing him of that fact.

Interest on debts
     Rule 9  - (1) Where an account of the debts of a deceased person is directed by any judgment, then, unless the deceased's estate is insolvent or the Court otherwise orders, interest shall be allowed - 

    (a) on any such debt as carries interest, at the rate it carries; and

    (b) on any other debt, from the date of the judgment at the rate payable on judgment debts at that date.

    (2) A creditor who has established his debt in proceedings under the judgment and whose debt does not carry interest shall be entitled to interest on his debt in accordance with paragraph (1) (b) out of any assets which may remain after satisfying the costs of the proceedings, the debts which have been established and the interest on such of those debts as by law carry interest.

    (3) For the purpose of this rule "debt" includes funeral, testamentary or administration expenses and, in relation to expenses incurred after the judgment, for the reference in paragraph (1) (b) to the date of the judgment there shall be substituted a reference to the date when the expenses became payable.

Interest on legacies
     Rule 10 Where an account of legacies is directed by any judgment, then, subject to any directions contained in the will or codicil in question and to any order made by the Court, interest shall be allowed on each legacy at the rate of 6 per cent. per annum beginning at the expiration of one year after the testator's death.

Master's order
     Rule 11  - (1) The result of proceedings before a Master under a judgment shall be stated in the form of an order.

    (2) Subject to any direction of the Master under paragraph (3) or otherwise an order under this rule shall have effect as a final order disposing of the proceedings in which it is made.

    (3) An order under this rule shall contain such directions as the Master thinks fit as to the further consideration, either at a public or private hearing, of the proceedings in which it is made.

    (4) Every order made under this rule shall have immediate binding effect on the parties to the proceedings in which it is made and copies of the order shall be served on such of the parties as the Master may direct.

Appeal against Master's order
     Rule 12 Subject to Order 58, rule 2, rule 1 of that Order shall apply to an order made pursuant to rule 11 above, save that - 

    (a) except where paragraph (e) below applies, the notice referred to in Order 58, rule 1 (2) shall state the grounds of the appeal, and must be issued within 14 days after the order is made;

    (b) the hearing shall be in public unless the Court directs otherwise;

    (c) no fresh evidence (other than evidence as to matters which have occurred after the date of the master's order) shall be admitted except on special grounds;

    (d) the judge hearing the appeal shall have the same power to draw inferences of fact as has the Court of Appeal under Order 59, rule 10 (3);

    (e) if the order is to be acted on by the Accountant - General or is an order passing a receiver's account, notice of appeal must be issued not later than two clear days after the making of the order and, where the order is to be acted on by the Accountant - General, a copy of it must be served on the Accountant - General as soon as practicable after it is made.



RSC ORDER 45

ENFORCEMENT OF JUDGMENTS AND ORDERS: GENERAL

Enforcement of judgment, etc., for payment of money
     Rule 1  - (1) Subject to the provisions of these rules, a judgment or order for the payment of money, not being a judgment or order for the payment of money into Court, may be enforced by one or more of the following means, that is to say - 

    (a) writ of fieri facias;

    (b) garnishee proceedings;

    (c) a charging order;

    (d) the appointment of a receiver;

    (e) in a case in which rule 5 applies, an order of committal;

    (f) in such a case, writ of sequestration.

    (2) Subject to the provisions of these rules, a judgment or order for the payment of money into Court may be enforced by one or more of the following means, that is to say - 

    (a) the appointment of a receiver;

    (b) in a case in which rule 5 applies, an order of committal;

    (c) in such a case, writ of sequestration.

    (3) Paragraphs (1) and (2) are without prejudice to any other remedy available to enforce such a judgment or order as is therein mentioned or to the power of a Court under the Debtors Acts 1869 and 1878[96], to commit to prison a person who makes default in paying money adjudged or ordered to be paid by him, or to the right of a person prosecuting a judgment or order for the payment of money to a person to apply under section 105 (1) of the County Courts Act 1984, to have the judgment or order enforced in a county Court, or to the enactments relating to bankruptcy or the winding up of companies.

    (4) In this Order references to any writ shall be construed as including references to any further writ in aid of the first mentioned writ.

Notice of seizure
     Rule 2 When first executing a writ of fieri facias, the Sheriff or his officer shall deliver to the debtor or leave at each place where execution is levied a notice in Form No. 55 in the relevant Practice Direction informing the debtor of the execution.

Enforcement of judgment for possession of land
     Rule 3  - (1) Subject to the provisions of these rules, a judgment or order for the giving of possession of land may be enforced by one or more of the following means, that is to say - 

    (a) writ of possession;

    (b) in a case in which rule 5 applies, an order of committal;

    (c) in such a case, writ of sequestration.

    (2) A writ of possession to enforce a judgment or order for the giving of possession of any land shall not be issued without the permission of the Court except where the judgment or order was given or made in mortgage proceedings to which Order 88 applies.

    (3) Such permission shall not be granted unless it is shown - 

    (a) that every person in actual possession of the whole or any part of the land has received such notice of the proceedings as appears to the Court sufficient to enable him to apply to the Court for any relief to which he may be entitled; and

    (b) if the operation of the judgment or order is suspended by subsection (2) of section 16 of the Landlord and Tenant Act, 1954[97], that the applicant has not received notice in writing from the tenant that he desires that the provisions of paragraphs (a) and (b) of that subsection shall have effect.

    (4) A writ of possession may include provision for enforcing the payment of any money adjudged or ordered to be paid by the judgment or order which is to be enforced by the writ.

Enforcement of judgment for delivery of goods
     Rule 4  - (1) Subject to the provisions of these rules, a judgment or order for the delivery of any goods which does not give a person against whom the judgment is given or order made the alternative of paying the assessed value of the goods may be enforced by one or more of the following means, that is to say - 

    (a) writ of delivery to recover the goods without alternative provision for recovery of the assessed value thereof (hereafter in this rule referred to as a "writ of specific delivery");

    (b) in a case in which rule 5 applies, an order of committal;

    (c) in such a case, writ of sequestration.

    (2) Subject to the provisions of these rules, a judgment or order for the delivery of any goods or payment of their assessed value may be enforced by one or more of the following means, that is to say - 

    (a) writ of delivery to recover the goods or their assessed value;

    (b) by order of the Court, writ of specific delivery;

    (c) in a case in which rule 5 applies, writ of sequestration.

An application for an order under sub-paragraph (b) shall be made in accordance with CPR Part 23, which must be served on the defendant against whom the judgment or order sought to be enforced was given or made.

    (3) A writ of specific delivery, and a writ of delivery to recover any goods or their assessed value, may include provision for enforcing the payment of any money adjudged or ordered to be paid by the judgment or order which is to be enforced by the writ.

    (4) A judgment or order for the payment of the assessed value of any goods may be enforced by the same means as any other judgment or order for the payment of money.

Enforcement of judgment to do or abstain from doing any act
     Rule 5  - (1) Where - 

    (a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under a court order or CPR rule 2.11; or

    (b) a person disobeys a judgment or order requiring him to abstain from doing an act, then, subject to the provisions of these rules, the judgment or order may be enforced by one or more of the following means, that is to say - 

      (i) with the permission of the Court, a writ of sequestration against the property of that person;

      (ii) where that person is a body corporate, with the permission of the Court, a writ of sequestration against the property of any director or other officer of the body;

      (iii) subject to the provisions of the Debtors Act 1869 and 1878[98], an order of committal against that person or, where that person is a body corporate, against any such officer.

    (2) Where a judgment or order requires a person to do an act within a time therein specified and an order is subsequently made under rule 6 requiring the act to be done within some other time, references in paragraph (1) of this rule to a judgment or order shall be construed as references to the order made under rule 6.

    (3) Where under any judgment or order requiring the delivery of any goods the person liable to execution has the alternative of paying the assessed value of the goods, the judgment or order shall not be enforceable by order of committal under paragraph (1), but the Court may, on the application of the person entitled to enforce the judgment or order, make an order requiring the first mentioned person to deliver the goods to the applicant within a time specified in the order, and that order may be so enforced.

Judgment, etc. requiring act to be done: order fixing time for doing it
     Rule 6  - (1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court shall, have power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time, as may be specified therein.

    (2) Where, a judgment or order requiring a person to do an act does not specify a time within which the act is to be done, the Court shall have power subsequently to make an order requiring the act to be done within such time after service of that order, or such other time, as may be specified therein.

    (3) An application for an order under this rule must be made in accordance with CPR Part 23 and the application notice must be served on the person required to do the act in question.

Service of copy of judgment, etc., prerequisite to enforcement under r.5
     Rule 7  - (1) In this rule references to an order shall be construed as including references to a judgment.

    (2) Subject to paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless - 

    (a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and

    (b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.

    (3) Subject as aforesaid, an order requiring a body corporate to do or abstain from doing an act shall not be enforced as mentioned in rule 5 (1)(b)(ii) or (iii) unless - 

    (a) a copy of the order has also been served personally on the officer against whose property permission is sought to issue a writ of sequestration or against whom an order of committal is sought; and

    (b) in the case of an order requiring the body corporate to do an act, the copy has been so served before the expiration of the time within which the body was required to do the act.

    (4) There must be prominently displayed on the front of the copy of an order served under this rule a warning to the person on whom the copy is served that disobedience to the order would be a contempt of court punishable by imprisonment, or (in the case of an order requiring a body corporate to do or abstain from doing an act) punishable by sequestration of the assets of the body corporate and by imprisonment of any individual responsible.

    (5) With the copy of an order required to be served under this rule, being an order requiring a person to do an act, there must also be served a copy of any order or agreement under CPR rule 2.11 extending or abridging the time for doing the act and, where the first - mentioned order was made under rule 5 (3) or 6 of this Order, a copy of the previous order requiring the act to be done.

    (6) An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the Court is satisfied that pending such service, the person against whom or against whose property is sought to enforce the order has had notice thereof either - 

    (a) by being present when the order was made; or

    (b) by being notified of the terms of the order, whether by telephone, telegram or otherwise.

    (7) The Court may dispense with service of a copy of an order under this rule if it thinks it just to do so.

Court may order act to be done at expense of disobedient party
     Rule 8 If an order of mandamus, a mandatory order, an injunction or a judgment or order for the specific performance of a contract is not complied with, then, without prejudice to its powers under section 39 of the Act and its powers to punish the disobedient party for contempt, the Court may direct that the act required to be done may, so far as practicable, be done by the party by whom the order or judgment was obtained or some other person appointed by the Court, at the cost of the disobedient party, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and execution may issue against the disobedient party for the amount so ascertained and for costs.

Execution by or against person not being a party
     Rule 9  - (1) Any person, not being a party to proceedings, who obtains any order or in whose favour any order is made, shall be entitled to enforce obedience to the order by the same process as if he were a party.

    (2) Any person, not being a party to proceedings, against whom obedience to any judgment or order may be enforced, shall be liable to the same process for enforcing obedience to the judgment or order as if he were a party.

Conditional judgment: waiver
     Rule 10 A party entitled under any judgment or order to any relief subject to the fulfilment of any condition who fails to fulfil that condition is deemed to have abandoned the benefit of the judgment or order, and, unless the Court otherwise directs, any other person interested may take any proceedings which either are warranted by the judgment or order or might have been taken if the judgment or order had not been given or made.

Matters occurring after judgment: stay of execution, etc.
     Rule 11 Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks just.

Forms of writs
     Rule 12  - (1) A writ of fieri facias must be in such of the Forms Nos. 53 to 63 in the relevant Practice Direction as is appropriate in the particular case.

    (2) A writ of delivery must be in Form No. 64 or 65 in the relevant Practice Direction, whichever is appropriate.

    (3) A writ of possession must be in Form No. 66 or 66A in the relevant Practice Direction, whichever is appropriate.

    (4) A writ of sequestration must be in Form No. 67 in the relevant Practice Direction.

Enforcement of judgments and orders for recovery of money, etc.
     Rule 13  - (1) Rule 1 (1) of this Order, with the omission of sub-paragraphs (e) and (f) thereof, and Orders 46 to 51 shall apply in relation to a judgment or order for the recovery of money as they apply in relation to a judgment or order for the payment of money.

    (2) Rule 3 of this Order, with the omission of paragraphs (1)(b) and (c) thereof, and Order 47, rule 3 (2) shall apply in relation to a judgment or order for the recovery of possession of land as they apply in relation to a judgment or order for the giving or delivery of possession of land.

    (3) Rule 4 of this Order, with the omission of paragraph 1 (b) and (c) and (2)(c) thereof, and Order 47, rule 3 (2) shall apply in relation to a judgment or order that a person do have a return of any goods and to a judgment or order that a person do have a return of any goods or do recover the assessed value thereof as they apply in relation to a judgment or order for the delivery of any goods and a judgment or order for the delivery of any goods or payment of the assessed value thereof respectively.

Enforcement of decisions of Value Added Tax Tribunals
     Rule 14  - (1) An application under section 29 of the Finance Act 1985[99] for registration of a decision of a Value Added Tax Tribunal on an appeal under section 83 of the Value Added Tax Act 1994[100] shall be made by a request in writing to the head clerk of the Crown Office - 

    (a) exhibiting the decision or a duly authenticated copy thereof;

    (b) stating, so far as is known to the witness, the name and occupation and the usual or last known address or place of business of the person against whom it is sought to enforce the decision; and

    (c) stating, to the best of the information and belief of the witness, the amount which as a result of the decision is, or is recoverable as, tax from such person at the date of the application and the amount then remaining unpaid of any costs awarded to the Commissioners of Customs and Excise by the decision.

    (2) Notice of the registration of a decision must be served on the person against whom it is sought to enforce the decision by delivering it to him personally or by sending it to him at his usual or last known address or place of business or in such manner as the Court may direct.

    (3) There shall be kept in the Central Office under the direction of the Senior Master a register of the decisions registered under section 29 of the Finance Act 1985, and there shall be included in the register particulars of any execution issued on a decision so registered.



RSC ORDER 46

WRITS OF EXECUTION: GENERAL

Definition
     Rule 1 In this Order, unless the context otherwise requires, "writ of execution" includes a writ of fieri facias, a writ of possession, a writ of delivery, a writ of sequestration and any further writ in aid of any of the aforementioned writs.

When permission to issue any writ of execution is necessary
     Rule 2  - (1) A writ of execution to enforce a judgment or order may not issue without the permission of the Court in the following cases, that is to say: - 

    (a) where six years or more have elapsed since the date of the judgment or order;

    (b) where any change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order;

    (c) where the judgment or order is against the assets of a deceased person coming to the hands of his executors or administrators after the date of the judgment or order, and it is sought to issue execution against such assets;

    (d) where under the judgment or order any person is entitled to a remedy subject to the fulfilment of any condition which it is alleged has been fulfilled;

    (e) where any goods sought to be seized under a writ of execution are in the hands of a receiver appointed by the Court or a sequestrator.

    (2) Paragraph (1) is without prejudice to section 2 of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951[101], or any other enactment or rule by virtue of which a person is required to obtain the permission of the Court for the issue of a writ of execution or to proceed to execution on or otherwise to the enforcement of a judgment or order.

    (3) Where the Court grants permission, whether under this rule or otherwise, for the issue of a writ of execution and the writ is not issued within one year after the date of the order granting such permission, the order shall cease to have effect, without prejudice, however, to the making of a fresh order.

Permission required for issue of writ in aid of other writ
     Rule 3 A writ of execution in aid of any other writ of execution shall not issue without the permission of the Court.




Notes


[96] 1869 c.62; 1878 c.54.back

[97] 1954 c.56.back

[98] 1869 c.62; 1878 c.54.back

[99] 1985 c.54.back

[100] 1994 c.23.back

[101] 1951 c.65.back



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