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

Back to previous page

 

RSC ORDER 50

CHARGING ORDERS, STOP ORDERS, ETC.

Order imposing a charge on a beneficial interest
     Rule 1  - (1) The power to make a charging order under section 1 of the Charging Orders Act 1979[106] (referred to in this Order as "the Act") shall be exercisable by the Court.

    (2) An application by a judgment creditor for a charging order in respect of a judgment debtor's beneficial interest must be in accordance with CPR Part 23, but the application notice need not be served on the judgment debtor, and any order made on such an application shall in the first instance be an order, made in Form No. 75 in the relevant Practice Direction, to show cause, specifying the time and place for further consideration of the matter and imposing the charge in any event until that time.

    (3) The application shall be supported by a witness statement or affidavit - 

    (a) identifying the judgment or order to be enforced and stating the amount unpaid at the date of the application;

    (b) stating the name of the judgment debtor and of any creditor of his whom the applicant can identify;

    (c) giving full particulars of the subject matter of the intended charge, including, in the case of securities other than securities in Court, the full title of the securities, their amount and the name in which they stand and, in the case of funds in Court, the number of the account; and

    (d) verifying that the interest to be charged is owned beneficially by the judgment debtor.

    (4) Unless the Court otherwise directs, a witness statement or affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.

    (5) An application may be made for a single charging order in respect of more than one judgment or order against the debtor.

Service of notice of order to show cause
     Rule 2  - (1) On the making of an order to show cause, notice of the order shall, unless the Court otherwise directs, be served as follows - 

    (a) a copy of the order, together with a copy of the witness statement or affidavit in support, shall be served on the judgment debtor;

    (b) where the order relates to securities other than securities in Court, copies of the order shall also be served - 

      (i) in the case of government stock for which the Bank of England keeps the Register, on the Bank of England;

      (ii) in the case of government stock to which (i) does not apply, on the keeper of the register;

      (iii) in the case of stock of any body incorporated within England and Wales, on that body, or, where the register is kept by the Bank of England, on the Bank of England;

      (iv) in the case of stock of any body incorporated outside England and Wales or of any state or territory outside the United Kingdom, being stock registered in a register kept in England and Wales, on the keeper of the register;

      (v) in the case of units of any unit trust in respect of which a register of the unit holders is kept in England and Wales, on the keeper of the register;

    (c) where the order relates to a fund in Court, a copy of the order shall be served on the Accountant General at the Court Funds Office; and

    (d) where the order relates to an interest under a trust, copies of the order shall be served on such of the trustees as the Court may direct.

    (2) Without prejudice to the provisions of paragraph (1), the Court may, on making the order to show cause, direct the service of copies of the order, and of the witness statement or affidavit in support, on any other creditor of the judgment debtor or on any other interested person as may be appropriate in the circumstances.

    (3) Documents to be served under this rule must be served at least seven days before the time appointed for the further consideration of the matter.

Order made on further considerations
     Rule 3  - (1) On the further consideration of the matter the Court shall either make the order absolute, with or without modifications, or discharge it.

    (2) Where the order is made absolute, it shall be made in Form No. 76 in the relevant practice direction, and where it is discharged, the provisions of rule 7, regarding the service of copies of the order of discharge, shall apply.

Order imposing a charge on an interest held by a trustee
     Rule 4  - (1) Save as provided by this rule, the provisions of rules 1, 2 and 3 shall apply to an order charging an interest held by a trustee as they apply to an order charging the judgment debtor's beneficial interest.

    (2) Instead of verifying the judgment debtor's beneficial ownership of the interest to be charged, the witness statement or affidavit required by rule 1 (3) shall state the ground on which the application is based and shall verify the material facts.

    (3) On making the order to show cause, the Court shall give directions for copies of the order, and of the witness statement or affidavit in support, to be served on such of the trustees and beneficiaries, if any, as may be appropriate.

    (4) Rules 5, 6 and 7 shall apply to an order charging an interest held by a trustee as they apply to an order charging the judgment debtor's beneficial interest, except that, where the order is made under sub - section (ii) or (iii) of section 2 (1)(b) of the Act references in those rules to "the judgment debtor" shall be references to the trustee.

    (5) Forms No. 75 and 76 in the relevant Practice Direction shall be modified so as to indicate that the interest to be charged is held by the debtor as trustee or, as the case may be, that it is held by a trustee (to be named in the order) on trust for the debtor beneficially.

Effect of order in relation to securities out of Court
     Rule 5  - (1) No disposition by the judgment debtor of his interest in any securities to which an order to show cause relates made after the making of that order shall, so long as that order remains in force, be valid as against the judgment creditor.

    (2) Until such order is discharged or made absolute, the Bank of England (or other person or body served in accordance with rule 2 (1)(b)), shall not permit any transfer of any of the securities specified in the order, or pay any dividend, interest or redemption payment in relation thereto, except with the authority of the Court, and, if it does so, shall be liable to pay the judgment creditor the value of the securities transferred or, as the case may be, the amount of the payment made or, if that value or amount is more than sufficient to satisfy the judgment or order to which such order relates, so much thereof as is sufficient to satisfy it.

    (3) If the Court makes the order absolute, a copy of the order, including a stop notice as provided in Form No. 76 in the relevant Practice Direction, shall be served on the Bank of England, or on such other person or body specified in rule 2 (1)(b) as may be appropriate and, save as provided in rule 7 (5), rules 11 to 14 shall apply to such a notice as they apply to a stop notice made and served under rule 11.

    (4) This rule does not apply to orders in respect of securities in Court.

Effect of order in relation to funds in Court
     Rule 6  - (1) Where an order to show cause has been made in relation to funds in Court (including securities in Court) and a copy thereof has been served on the Accountant General in accordance with rule 2, no disposition by the judgment debtor of any interest to which the order relates, made after the making of that order, shall, so long as the order remains in force, be valid as against the judgment creditor.

    (2) If the Court makes the order absolute, a copy of the order shall be served on the Accountant General at the Court Funds Office.

Discharge, etc., of charging order
     Rule 7  - (1) Subject to paragraph (2), on the application of the judgment debtor or any other person interested in the subject matter of the charge, the Court may, at any time, whether before or after the order is made absolute, discharge or vary the order on such terms (if any) as to costs or otherwise as it thinks just.

    (2) Where an application is made for the discharge of a charging order in respect of the judgment debtor's land on the ground that the judgment debt has been satisfied, the applicant shall state in his application, and the Court shall specify in its order, the title number of the land in the case of registered land, and the entry number of any relevant land charge in the case of unregistered land.

    (3) The application notice seeking the discharge or variation of the order shall be served on such interested parties as the Court may direct.

    (4) Where an order is made for the discharge or variation of a charging order in respect of funds in Court, a copy thereof shall be served on the Accountant General at the Court Funds Office.

    (5) Where an order is made for the discharge or variation of a charging order in respect of securities other than securities in Court, a copy thereof shall be served on the Bank of England or on such other person or body specified in rule 2 (1)(b) as may be appropriate, and the service thereof shall discharge, or, as the case may be, vary, any stop notice in respect of such securities which may be in force pursuant to the original order.

Jurisdiction of Master, etc., to grant injunction
     Rule 9 A master and the Admiralty Registrar and a district judge of the Family Division shall have power to grant an injunction if, and only so far as, it is ancillary or incidental to an order under rule 1, 3 or 4 and an application for an injunction under this rule may be joined with the application for the order under rule 1, 3 or 4 to which it relates.

Enforcement of charging order by sale
     Rule 9A  - (1) Proceedings for the enforcement of a charging order by sale of the property charged must be begun by a claim form issued out of Chancery Chambers or out of one of the Chancery District Registries.

    (2) The provisions of Order 88 shall apply to all such proceedings.

Funds in Court: stop order
     Rule 10  - (1) The Court, on the application of any person - 

    (a) who has a mortgage or charge on the interest of any person in funds in Court; or

    (b) to whom that interest has been assigned; or

    (c) who is a judgment creditor of the person entitled to that interest, may make an order prohibiting the transfer, sale, delivery out, payment or other dealing with such funds, or any part thereof, or the income thereon, without notice to the applicant.

    (2) An application for an order under this rule must, if there are existing proceedings, be made in accordance with CPR Part 23 by filing an application notice relating to the funds in Court, or, if there are no such proceedings, by a claim.

    (3) The application notice or claim form must be served on every person whose interest may be affected by the order applied for and on the Accountant-General but shall not be served on any other person.

    (4) Without prejudice to the Court's powers and discretion as to costs, the Court may order the applicant for an order under this rule to pay the costs of any party to the proceedings relating to the funds in question, or of any person interested in those funds, occasioned by the application.

Securities not in Court: stop notice
     Rule 11  - (1) Any person claiming to be beneficially entitled to an interest in any securities of the kinds set out in section 2 (2)(b) of the Act, other than securities in Court, who wishes to be notified of any proposed transfer or payment of those securities may avail himself of the provisions of this rule.

    (2) A person claiming to be so entitled must file in Chancery Chambers or in a District Registry - 

    (a) a witness statement or affidavit identifying the securities in question and describing his interest therein by reference to the document under which it arises; and

    (b) a notice in Form No. 80 in the relevant Practice Direction (a stop notice) signed by the witness who made the witness statement or affidavit, and annexed to it, addressed to the Bank of England or, as the case may be, the body, state, territory or unit trust concerned, and must serve an office copy of the witness statement or affidavit, and a copy of the notice sealed with the seal of Chancery Chambers or the District Registry, on the Bank or other person or body, as provided in rule 2 (1)(b).

    (3) There must be indorsed on the witness statement or affidavit filed under this rule a note stating the address to which any such notice as is referred to in rule 12 is to be sent and, subject to paragraph (4), that address shall for the purpose of that rule be the address for service of the person on whose behalf the witness statement or affidavit is filed.

    (4) A person on whose behalf a witness statement or affidavit under this rule is filed may change his address for service for the purpose of rule 12 by serving on the Bank of England, or other person or body, a notice to that effect, and, as from the date of service of such a notice the address stated therein shall for the purpose of that rule be the address for service of that person.

Effect of stop notice
     Rule 12 Where a stop notice has been served in accordance with rule 11, then, so long as the stop notice is in force, the Bank of England or other person or body on which it is served shall not register a transfer of the securities or take any other step restrained by the stop notice until 14 days after sending notice thereof, by ordinary first class post, to the person on whose behalf the stop notice was filed, but shall not by reason only of that notice refuse to register a transfer, or to take any other step, after the expiry of that period.

Amendment of stop notice
     Rule 13 If any securities are incorrectly described in a stop notice which has been filed and of which a sealed copy has been served in accordance with rule 11, an amended stop notice may be filed and served in accordance with the same procedure and shall take effect as a stop notice on the day on which the sealed copy of the amended notice is served.

Withdrawal etc. of stop notice
     Rule 14  - (1) The person on whose behalf a stop notice was filed may withdraw it by serving a request for its withdrawal on the Bank of England or other person or body on whom the notice was served.

    (2) Such request must be signed by the person on whose behalf the notice was filed and his signature must be witnessed by a practising solicitor.

    (3) The Court, on the application of any person claiming to be beneficially entitled to an interest in the securities to which a stop notice relates, may by order discharge the notice.

    (4) An application for an order under paragraph (3) must be made in the Chancery Division by a claim form, and the claim form must be served on the person on whose behalf a stop notice was filed.

Order prohibiting transfer, etc. of securities
     Rule 15  - (1) The Court, on the application of any person claiming to be beneficially entitled to an interest in any securities of the kinds set out in section 2 (2)(b) of the Act may by order prohibit the Bank of England or other person or body concerned from registering any transfer of the securities or taking any other step to which section 5 (5) of the Act applies. The order shall specify the securities to which the prohibition relates, the name in which they stand and the steps which may not be taken, and shall state whether the prohibition applies to the securities only or to the dividends or interest as well.

    (2) An application for an order under this rule must be made by claim form or if made in existing proceedings in accordance with CPR Part 23 in the Chancery Division.

    (3) The Court, on the application of any person claiming to be entitled to an interest in any securities to which an order under this rule relates, may vary or discharge the order on such terms (if any) as to costs or otherwise as it thinks fit.



RSC ORDER 51

RECEIVERS: EQUITABLE EXECUTION

Appointment of receiver by way of equitable execution
     Rule 1 Where an application is made for the appointment of a receiver by way of equitable execution, the Court in determining whether it is just or convenient that the appointment should be made shall have regard to the amount claimed by the judgment creditor, to the amount likely to be obtained by the receiver and to the probable costs of his appointment and may direct an inquiry on any of these matters or any other matter before making the appointment.

Masters etc. may appoint receiver
     Rule 2 A Master and the Admiralty Registrar and a District Judge of the Family Division shall have power to make an order for the appointment of a receiver by way of equitable execution and to grant an injunction if, and only so far as, the injunction is ancillary or incidental to such an order.

Application of rules as to appointment of receiver, etc.
     Rule 3 An application for the appointment of a receiver by way of equitable execution may be made in accordance with Order 30, rule 1, and rules 2 to 6 of that Order shall apply in relation to a receiver appointed by way of equitable execution as they apply in relation to a receiver appointed for any other purpose.



RSC ORDER 52

COMMITTAL

Committal for contempt of court
     Rule 1  - (1) The power of the High Court or Court of Appeal to punish for contempt of court may be exercised by an order of committal.

    (2) Where contempt of court - 

    (a) is committed in connection with - 

      (i) any proceedings before a Divisional Court of the Queen's Bench Division; or

      (ii) criminal proceedings, except where the contempt is committed in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court; or

      (iii) proceedings in an inferior court; or

    (b) is committed otherwise than in connection with any proceedings, then, subject to paragraph (4), an order of committal may be made only by a Divisional Court of the Queen's Bench Division.

This paragraph shall not apply in relation to contempt of the Court of Appeal.

    (3) Where contempt of court is committed in connection with any proceedings in the High Court, then, subject to paragraph (2), an order of committal may be made by a single judge of the Queen's Bench Division except where the proceedings were assigned or subsequently transferred to some other Division, in which case the order may be made only by a single judge of that other Division.

    The reference in this paragraph to a single judge of the Queen's Bench Division shall, in relation to proceedings in any court the judge or judges of which are, when exercising the jurisdiction of that court, deemed by virtue of any enactment to constitute a court of the High Court, be construed as a reference to a judge of that court.

    (4) Where by virtue of any enactment the High Court has power to punish or take steps for the punishment of any person charged with having done anything in relation to a court, tribunal or person which would, if it had been done in relation to the High Court, have been a contempt of that Court, an order of committal may be made by a single judge of the Queen's Bench Division.

Application to Divisional Court
     Rule 2  - (1) No application to a Divisional Court for an order of committal against any person may be made unless permission to make such an application has been granted in accordance with this rule.

    (2) An application for such permission must be made without notice to a Divisional Court, except in vacation when it may be made to a judge in chambers and must be supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.

    (3) The applicant must give notice of the application for permission not later than the preceding day to the Crown Office and must at the same time lodge in that office copies of the statement and affidavit.

    (4) Where an application for permission under this rule is refused by a judge in chambers, the applicant may make a fresh application for such permission to a Divisional Court.

    (5) An application made to a Divisional Court by virtue of paragraph (4) must be made within 8 days after the judge's refusal to give permission or, if a Divisional Court does not sit within that period, on the first day on which it sits thereafter.

Application for order after leave to apply granted
     Rule 3  - (1) When permission has been granted under rule 2 to apply for an order of committal, the application for the order must be made to a Divisional Court and, unless the court or judge granting permission has otherwise directed, there must be at least 14 clear days between the service of the claim form and the day named therein for the hearing.

    (2) Unless within 14 days after such permission was granted, the claim form is issued the permission shall lapse.

    (3) Subject to paragraph 4, the claim form, accompanied by a copy of the statement and affidavit in support of the application for permission, must be served personally on the person sought to be committed.

    (4) Without prejudice to the powers of the court or judge under Part 6 of the CPR, the court or judge may dispense with service under this rule if it or he thinks it just to do so.

Application to Court other than Divisional Court
     Rule 4  - (1) Where an application for an order of committal may be made to a court other than a Divisional Court, the application must be made by claim form or application notice and be supported by an affidavit.

    (2) Subject to paragraph (3) the claim form or application notice, stating the grounds of the application and accompanied by a copy of the affidavit in support of the application, must be served personally on the person sought to be committed.

    (3) Without prejudice to its powers under Part 6 of the CPR, the Court may dispense with service under this rule if it thinks it just to do so.

    (4) This rule does not apply to committal applications which under rules 1(2) and 3(1) should be made to a Divisional Court but which, in vacation, have been properly made to a single judge in accordance with Order 64, rule 4.

Saving for power to commit without application for purpose
     Rule 5 Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the High Court or Court of Appeal to make an order of committal of its own initiative against a person guilty of contempt of court.

Provisions as to hearing
     Rule 6  - (1) Subject to paragraph (2), the Court hearing an application for an order of committal may sit in private in the following cases, that is to say - 

    (a) where the application arises out of proceedings relating to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant;

    (b) where the application arises out of proceedings relating to a person suffering or appearing to be suffering from mental disorder within the meaning of the Mental Health Act 1983[107];

    (c) where the application arises out of proceedings in which a secret process, discovery or invention was in issue;

    (d) where it appears to the Court that in the interests of the administration of justice or for reasons of national security the application should be heard in private;

but, except as aforesaid, the application shall be heard in open court.

    (2) If the Court hearing an application in private by virtue of paragraph (1) decides to make an order of committal against the person sought to be committed, it shall in open court state - 

    (a) the name of that person,

    (b) in general terms the nature of the contempt of Court in respect of which the order of committal is being made, and

    (c) the length of the period for which he is being committed.

    (3) Except with the permission of the Court hearing an application for an order of committal, no grounds shall be relied upon at the hearing except the grounds set out in the statement under rule 2 or, as the case may be, in the claim form or application notice under rule 4.

    (4) If on the hearing of the application the person sought to be committed expresses a wish to give oral evidence on his own behalf, he shall be entitled to do so.

Power to suspend execution of committal order
     Rule 7  - (1) The Court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify.

    (2) Where execution of an order of committal is suspended by an order under paragraph (1), the applicant for the order of committal must, unless the Court otherwise directs, serve on the person against whom it was made a notice informing him of the making and terms of the order under that paragraph.

Discharge of person committed
     Rule 8  - (1) The Court may, on the application of any person committed to prison for any contempt of Court, discharge him.

    (2) Where a person has been committed for failing to comply with a judgment or order requiring him to deliver any thing to some other person or to deposit it in Court or elsewhere, and a writ of sequestration has also been issued to enforce that judgment or order, then, if the thing is in the custody or power of the person committed, the commissioners appointed by the writ of sequestration may take possession of it as if it were the property of that person and, without prejudice to the generality of paragraph (1), the Court may discharge the person committed and may give such directions for dealing with the thing taken by the commissioners as it thinks fit.

(RSC Order 46, rule 5 contains rules relating to writs of sequestration)

Saving for other powers
     Rule 9 Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an order requiring a person guilty of contempt of court, or a person punishable by virtue of any enactment in like manner as if he had been guilty of contempt of the High Court, to pay a fine or to give security for his good behaviour, and those provisions, so far as applicable, and with the necessary modifications, shall apply in relation to an application for such an order as they apply in relation to an application for an order of committal.






Notes


[106] 1979 c.53; section 1 was amended by the Administration of Justice Act 1982 (c.53) sections 34(3), 37, schedule 3, Part II, paragraphs 2, 3, 6; and by the County Courts Act 1984 (c.28), section 148(1), schedule 2, Part V.back

[107] 1983 c.20.back



  continue
 
 

  Contents

Other UK SIs |  Home |  National Assembly for Wales Statutory Instruments |  Scottish Statutory Instruments |  Statutory Rules of Northern Ireland |  Her Majesty's Stationery Office

We welcome your comments on this site
© Crown copyright 1998
Prepared 9 February 1999