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

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Application for permission to issue writ
     Rule 4  - (1) An application for permission to issue a writ of execution may be made in accordance with CPR Part 23 but the application notice need not be served on the respondent unless the Court directs.

    (2) Such an application must be supported by a witness statement or affidavit - 

    (a) identifying the judgment or order to which the application relates and, if the judgment or order is for the payment of money, stating the amount originally due thereunder and the amount due thereunder at the date the application notice is filed;

    (b) stating, where the case falls within rule 2 (1)(a) the reasons for the delay in enforcing the judgment or order;

    (c) stating where the case falls within rule 2 (1)(b) the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order;

    (d) stating, where the case falls within rule 2 (1)(c) or (d) that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that he has refused or failed to do so;

    (e) giving such other information as is necessary to satisfy the Court that the applicant is entitled to proceed to execution on the judgment or order in question and that the person against whom it is sought to issue execution is liable to execution on it.

    (3) The Court hearing such application may grant permission in accordance with the application or may order that any issue or question, a decision on which is necessary to determine the rights of the parties, be tried in any manner in which any question of fact or law arising in proceedings may be tried and, in either case, may impose such terms as to costs or otherwise as it thinks just.

Application for permission to issue writ of sequestration
     Rule 5  - (1) Notwithstanding anything in rules 2 and 4, an application for permission to issue a writ of sequestration must be made in accordance with CPR Part 23 and be heard by a Judge.

    (2) Subject to paragraph (3) the application notice, stating the grounds of the application and accompanied by a copy of the witness statement or affidavit in support of the application, must be served personally on the person against whose property it is sought to issue the writ.

    (3) The Court may dispense with service of the application notice under this rule if it thinks it just to do so.

    (4) The judge hearing an application for permission to issue a writ of sequestration may sit in private in any case in which, if the application were for an order of committal, he would be entitled to do so by virtue of Order 52, rule 6 but, except in such a case, the application shall be heard in public.

Issue of writ of execution
     Rule 6  - (1) Issue of a writ of execution takes place on its being sealed by a court officer of the appropriate office.

    (2) Before such a writ is issued a praecipe for its issue must be filed.

    (3) The praecipe must be signed by or on behalf of the solicitor of the person entitled to execution or, if that person is acting in person, by him.

    (4) No such writ shall be sealed unless at the time of the tender thereof for sealing - 

    (a) the person tendering it produces - 

      (i) the judgment or order on which the writ is to issue, or an office copy thereof;

      (ii) where the writ may not issue without the permission of the Court, the order granting such permission or evidence of the granting of it;

      (iii) where judgment on failure to acknowledge service has been entered against a State, as defined in section 14 of the State Immunity Act 1978[102], evidence that the State has been served in accordance with CPR rule 40.10 and that the judgment has taken effect; and

    (b) the court officer authorised to seal it is satisfied that the period, if any, specified in the judgment or order for the payment of any money or the doing of any other act thereunder has expired.

    (5) Every writ of execution shall bear the date of the day on which it is issued.

    (6) In this rule "the appropriate office" means - 

    (a) where the proceedings in which execution is to issue are in a District Registry, that Registry;

    (b) where the proceedings are in the Principal Registry of the Family Division, that Registry;

    (c) where the proceedings are Admiralty proceedings or commercial proceedings which are not in a District Registry, the Admiralty and Commercial Registry;

    (ca) where the proceedings are in the Chancery Division, Chancery Chambers;

    (d) in any other case, the Central Office of the Supreme Court.

Duration and renewal of writ of execution
     Rule 8  - (1) For the purpose of execution, a writ of execution is valid in the first instance for 12 months beginning with the date of its issue.

    (2) Where a writ has not been wholly executed the Court may by order extend the validity of the writ from time to time for a period of 12 months at any one time beginning with the day on which the order is made, if an application for extension is made to the Court before the day next following that on which the writ would otherwise expire or such later day, if any, as the Court may allow.

    (3) Before a writ the validity of which had been extended under paragraph (2) is executed either the writ must be sealed with the seal of the office out of which it was issued showing the date on which the order extending its validity was made or the applicant for the order must serve a notice (in Form No. 71 in the relevant Practice Direction) sealed as aforesaid, on the sheriff to whom the writ is directed informing him of the making of the order and the date thereof.

    (4) The priority of a writ, the validity of which has been extended under this rule, shall be determined by reference to the date on which it was originally delivered to the sheriff.

    (5) The production of a writ of execution, or of such a notice as is mentioned in paragraph (3) purporting in either case to be sealed as mentioned in that paragraph, shall be evidence that the validity of that writ, or, as the case may be, of the writ referred to in that notice, has been extended under paragraph (2).

    (6) If, during the validity of a writ of execution, an interpleader summons is issued in relation to an execution under that writ, the validity of the writ shall be extended until the expiry of 12 months from the conclusion of the interpleader proceedings.

Return to writ of execution
     Rule 9  - (1) Any party at whose instance or against whom a writ of execution was issued may serve a notice on the sheriff to whom the writ was directed requiring him, within such time as may be specified in the notice, to indorse on the writ a statement of the manner in which he has executed it and to send to that party a copy of the statement.

    (2) If a sheriff on whom such a notice is served fails to comply with it the party by whom it was served may apply to the Court for an order directing the sheriff to comply with the notice.



RSC ORDER 47

WRITS OF FIERI FACIAS

Power to stay execution by writ of fieri facias
     Rule 1  - (1) Where a judgment is given or an order made for the payment by any person of money, and the Court is satisfied, on an application made at the time of the judgment or order, or at any time thereafter, by the judgment debtor or other party liable to execution - 

    (a) that there are special circumstances which render it inexpedient to enforce the judgment or order; or

    (b) that the applicant is unable from any cause to pay the money,

then, notwithstanding anything in rule 2 or 3, the Court may by order stay the execution of the judgment or order by writ of fieri facias either absolutely or for such period and subject to such conditions as the Court thinks fit.

    (2) An application under this rule, if not made at the time the judgment is given or order made, must be made in accordance with CPR Part 23 and may be so made notwithstanding that the party liable to execution did not acknowledge service of the claim form or serve a defence or take any previous part in the proceedings.

    (3) The grounds on which an application under this rule is made must be set out in the application notice and be supported by a witness statement or affidavit made by or on behalf of the applicant substantiating the said grounds and, in particular, where such application is made on the grounds of the applicant's inability to pay, disclosing his income, the nature and value of any property of his and the amount of any other liabilities of his.

    (4) The application notice and a copy of the supporting witness statement or affidavit must, not less than 4 clear days before the hearing, be served on the party entitled to enforce the judgment or order.

    (5) An order staying execution under this rule may be varied or revoked by a subsequent order.

Two or more writs of fieri facias
     Rule 2  - (1) A party entitled to enforce a judgment or order by writ of fieri facias may issue two or more such writs, directed to the sheriffs of different counties, at either the same time or different times, to enforce that judgment or order, but no more shall be levied under all those writs together than is authorised to be levied under one of them.

    (2) Where a party issues two or more writs of fieri facias directed to the sheriffs of different counties to enforce the same judgment or order he must inform each sheriff of the issue of the other writ or writs.

Separate writs to enforce payment of costs, etc.
     Rule 3  - (1) Where only the payment of money, together with costs to be assessed in accordance with CPR Part 47 (detailed costs assessment), is adjudged or ordered, then, if when the money becomes payable under the judgment or order the costs have not been assessed, the party entitled to enforce that judgment or order may issue a writ of fieri facias to enforce payment of the sum (other than for costs) adjudged or ordered and, not less than 8 days after the issue of that writ, he may issue a second writ to enforce payment of the assessed costs.

    (2) A party entitled to enforce a judgment or order for the delivery of possession of any property (other than money) may, if he so elects, issue a separate writ of fieri facias to enforce payment of any damages or costs awarded to him by that judgment or order.

No expenses of execution in certain cases
     Rule 4 Where a judgment or order is for less than 600 and does not entitle the claimant to costs against the person against whom the writ of fieri facias to enforce the judgment or order is issued, the writ may not authorise the sheriff to whom it is directed to levy any fees, poundage or other costs of execution.

Writ of fieri facias de bonis ecclesiasticis, etc.
     Rule 5  - (1) Where it appears upon the return of any writ of fieri facias that the person against whom the writ was issued has no goods or chattels in the county of the sheriffs to whom the writ was directed but that he is the incumbent of a benefice named in the return, then, after the writ and return have been filed, the party by whom the writ of fieri facias was issued may issue a writ of fieri facias de bonis ecclesiasticis or a writ of sequestrari de bonis ecclesiasticis directed to the bishop of the diocese within which that benefice is.

    (2) Any such writ must be delivered to the bishop to be executed by him.

    (3) Only such fees for the execution of any such writ shall be taken by or allowed to the bishop or any diocesan officer as are for the time being authorised by or under any enactment, including any measure of the General Synod.

Order for sale otherwise than by auction
     Rule 6  - (1) An order of the Court under section 145 of the Bankruptcy Act 1883[103], that a sale under an execution may be made otherwise than by public auction may be made on the application of the person at whose instance the writ of execution under which the sale is to be made was issued or the person against whom that writ was issued (in this rule referred to as "the judgment debtor") or the sheriff to whom it was issued.

    (2) Such an application must be made in accordance with CPR Part 23 and the application notice must contain a short statement of the grounds of the application.

    (3) Where the applicant for an order under this rule is not the sheriff, the sheriff must, on the demand of the applicant, send to the applicant a list containing the name and address of every person at whose instance any other writ of execution against the goods of the judgment debtor was issued and delivered to the sheriff (in this rule referred to as "the sheriff's list"); and where the sheriff is the applicant, he must prepare such a list.

    (4) Not less than 4 clear days before the hearing the applicant must serve the application notice on each of the other persons by whom the application might have been made and on every person named in the sheriff's list.

    (5) Service of the application notice on a person named in the sheriff's list is notice to him for the purpose of section 12 of the Bankruptcy Act 1890[104] (which provides that the Court shall not consider an application for permission to sell privately goods taken in execution until notice directed by rules of Court has been given to any other execution creditor).

    (6) The applicant must produce the sheriff's list to the Court on the hearing of the application.

    (7) Every person on whom the application notice was served may attend and be heard on the hearing of the application.



RSC ORDER 48

EXAMINATION OF JUDGMENT DEBTOR, ETC.

Order for examination of judgment debtor
     Rule 1  - (1) Where a person has obtained a judgment or order for the payment by some other person (hereinafter referred to as "the judgment debtor") of money, the Court may, on an application made without notice being served on any other party by the person entitled to enforce the judgment or order, order the judgment debtor or, if the judgment debtor is a body corporate, an officer thereof, to attend before such Master, Registrar, District Judge or nominated officer as the Court may appoint and be orally examined on the questions - 

    (a) whether any and, if so, what debts are owing to the judgment debtor; and

    (b) whether the judgment debtor has any and, if so, what other property or means of satisfying the judgment or order;

and the Court may also order the judgment debtor or officer to produce any books or documents in the possession of the judgment debtor relevant to the questions aforesaid at the time and place appointed for the examination.

    In this paragraph "district judge" includes the district judge of a district registry or county court, and where the Court appoints such a district judge without specifying him personally, the examination may, if he thinks fit, be conducted on his behalf by a nominated officer of that registry or county court.

    (2) An order under this rule must be served personally on the judgment debtor and on any officer of a body corporate ordered to attend for examination.

    (3) Any difficulty arising in the course of an examination under this rule before a nominated officer, including any dispute with respect to the obligation of the person being examined to answer any question put to him, may be referred to the Senior Master or Practice Master (or, in the case of an examination at the principal registry of the Family Division, a district registry or a county court, a district judge of that registry, district registry or county court respectively) and he may determine it or give such directions for determining it as he thinks fit.

    (4) In this rule "nominated officer" in relation to an examination which is to take place at the Central Office of the Supreme Court, the principal registry of the Family Division, a district registry or a county court means such of the officers of that Office, registry or county court of a grade not lower than that of higher executive officer as may be nominated for the purposes of this rule by the Senior Master, the Senior District Judge of the Family Division or the district judge of that district registry or county court respectively.

Examination of party liable to satisfy other judgment
     Rule 2 Where any difficulty arises in or in connection with the enforcement of any judgment or order, other than such a judgment or order as is mentioned in rule 1, the Court may make an order under that rule for the attendance of the party liable to satisfy the judgment or order and for his examination on such questions as may be specified in the order, and that rule shall apply accordingly with the necessary modifications.

Examiner to make record of debtor's statement
     Rule 3 The officer conducting the examination shall take down, or cause to be taken down, in writing the statement made by the judgment debtor or other person at the examination, read it to him and ask him to sign it; and if he refuses the officer shall sign the statement.



RSC ORDER 49

GARNISHEE PROCEEDINGS

Attachment of debt due to judgment debtor
     Rule 1  - (1) Where a person (in this Order referred to as "the judgment creditor") has obtained a judgment or order for the payment by some other person (in this Order referred to as "the judgment debtor") of a sum of money amounting in value to at least 50, not being a judgment or order for the payment of money into court, and any other person within the jurisdiction (in this Order referred to as "the garnishee") is indebted to the judgment debtor, the Court may, subject to the provisions of this Order and of any enactment, order the garnishee to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or so much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.

    (2) An order under this rule shall in the first instance be an order to show cause, specifying the time and place for further consideration of the matter, and in the meantime attaching such debt as is mentioned in paragraph (1) or so much thereof as may be specified in the order, to answer the judgment or order mentioned in that paragraph and the costs of the garnishee proceedings.

    (3) Among the conditions mentioned in section 40 of the Supreme Court Act 1981[105] (which enables any sum standing to the credit of a person in certain types of account to be attached notwithstanding that certain conditions applicable to the account in question have not been satisfied) there shall be included any condition that a receipt for money deposited in the account must be produced before any money is withdrawn.

    (4) An order under this rule shall not require a payment which would reduce below 1 the amount standing in the name of the judgment debtor in an account with a building society or a credit union.

Application for order
     Rule 2  - (1) An application for an order under rule 1 must be made in accordance with CPR Part 23 but the application notice need not be served on the judgment debtor.

    (2) An application must be supported by a witness statement or affidavit - 

    (a) stating the name and last known address of the judgment debtor;

    (b) identifying the judgment or order to be enforced and stating the amount of such judgment or order and the amount remaining unpaid under it at the time of the application;

    (c) stating that to the best of the information or belief of the witness the garnishee (naming him) is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the witness's information or the grounds for his belief; and

    (d) stating, where the garnishee is a deposit - taking institution having more than one place of business, the name and address of the branch at which the judgment debtor's account is believed to be held and the number of that account or, if it be the case, that all or part of this information is not known to the witness.

Service and effect of order to show cause
     Rule 3  - (1) Unless the Court otherwise directs, an order under rule 1 to show cause must be served - 

    (a) on the garnishee personally, at least 15 days before the time appointed thereby for the further consideration of the matter; and

    (b) on the judgment debtor, at least 7 days after the order has been served on the garnishee and at least 7 days before the time appointed by the order for the further consideration of the matter.

    (2) Such an order shall bind in the hands of the garnishee as from the service of the order on him any debt specified in the order or so much thereof as may be so specified.

No appearance or dispute of liability by garnishee
     Rule 4  - (1) Where on the further consideration of the matter the garnishee does not attend or does not dispute the debt due or claimed to be due from him to the judgment debtor, the Court may make an order absolute under rule 1 against the garnishee.

    (2) An order absolute under rule 1 against the garnishee may be enforced in the same manner as any other order for the payment of money.

Dispute of liability by garnishee
     Rule 5 Where on the further consideration of the matter the garnishee disputes liability to pay the debt due or claimed to be due from him to the judgment debtor, the Court may summarily determine the question at issue or order that any question necessary for determining the liability of the garnishee be tried in any manner in which any question or issue in proceedings may be tried, without, if it orders trial before a Master, the need for any consent by the parties.

Claims of third persons
     Rule 6  - (1) If in garnishee proceedings it is brought to the notice of the Court that some other person than the judgment debtor is or claims to be entitled to the debt sought to be attached or has or claims to have a charge or lien upon it, the Court may order that person to attend before the Court and state the nature of his claim with particulars thereof.

    (2) After hearing any person who attends before the Court in compliance with an order under paragraph (1) the Court may summarily determine the questions at issue between the claimants or make such other order as it thinks just, including an order that any question or issue necessary for determining the validity of the claim of such other person as is mentioned in paragraph (1) be tried in such manner as is mentioned in rule 5.

Discharge of garnishee
     Rule 8 Any payment made by a garnishee in compliance with an order absolute under this Order, and any execution levied against him in pursuance of such an order, shall be a valid discharge of his liability to the judgment debtor to the extent of the amount paid or levied notwithstanding that the garnishee proceedings are subsequently set aside or the judgment or order from which they arose reversed.

Money in Court
     Rule 9  - (1) Where money is standing to the credit of the judgment debtor in Court, the judgment creditor shall not be entitled to take garnishee proceedings in respect of that money but may apply to the Court in accordance with CPR Part 23 for an order that the money or so much thereof as is sufficient to satisfy the judgment or order sought to be enforced and the costs of the application be paid to the judgment creditor.

    (2) On filing an application notice under this rule the applicant must produce the application notice at the office of the Accountant General and leave a copy at that office, and the money to which the application relates shall not be paid out of Court until after the determination of the application. If the application is dismissed, the applicant must give notice of that fact to the Accountant General.

    (3) Unless the Court otherwise directs, the application notice must be served on the judgment debtor at least 7 days before the hearing.

    (4) Subject to Order 75, rule 24, the Court hearing an application under this rule may make such order with respect to the money in Court as it thinks just.

Costs
     Rule 10 The costs of any application for an order under rule 1 or 9, and of any proceedings arising therefrom or incidental thereto, shall, unless the Court otherwise directs, be retained by the judgment creditor out of the money recovered by him under the order and in priority to the judgment debt.






Notes


[102] 1978 c.33.back

[103] 1883 c.52.back

[104] 1890 c.71.back

[105] 1981 c.54; section 40 was amended by the Banking Act 1987 (c.22) section 108(1), schedule 6.back



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