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

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RSC ORDER 88

MORTGAGE CLAIMS

Application and Interpretation
     Rule 1  - (1) This Order applies to any claim by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being a claim in which there is a claim for any of the following remedies, namely - 

    (a) payment of moneys secured by the mortgage,

    (b) sale of the mortgaged property,

    (c) foreclosure,

    (d) delivery of possession (whether before or after foreclosure or without foreclosure) to the mortgagee by the mortgagor or by any other person who is or is alleged to be in possession of the property,

    (e) redemption,

    (f) reconveyance of the property or its release from the security,

    (g) delivery of possession by the mortgagee.

    (2) In this Order "mortgage" includes a legal and an equitable mortgage and a legal and an equitable charge, and references to a mortgagor, a mortgagee and mortgaged property shall be construed accordingly.

    (3) A claim to which this Order applies is referred to in this Order as a mortgage claim.

    (4) These rules apply to mortgage claims subject to the following provisions of this Order.

Assignment of certain actions to Chancery Division
     Rule 2 Without prejudice to section 61 (1) of the Act (which provides for the assignment to the Chancery Division of proceedings for the purposes, among others, of the redemption or foreclosure of mortgages and the sale and distribution of the proceeds of property subject to any lien or charge) any claim in which there is a claim for - 

    (a) payment of moneys secured by a mortgage of any real or leasehold property, or

    (b) delivery of possession (whether before or after foreclosure) to the mortgagee of any such property by the mortgagor or by any other person who is or is alleged to be in possession of the property,

shall be assigned to the Chancery Division.

Commencement of claim
     Rule 3  - (1) A claim form by which a mortgage claim is begun may not be issued out of a district registry, which is not a Chancery district registry, unless the mortgaged property is situated in the district of the registry.

    (3) The claim form by which a mortgage claim is begun shall be indorsed with or contain a statement showing - 

    (a) where the mortgaged property is situated, and

    (b) if the claimant claims possession of the mortgaged property and it is situated outside Greater London, whether the property consists of or includes a dwelling house,

and a certificate that the claim is not one to which section 141 of the Consumer Credit Act 1974[155] applies.

Claim for possession: failure by a defendant to acknowledge service
     Rule 4  - (1) Where in a mortgage claim in the Chancery Division being a claim in which the claimant is the mortgagee and claims delivery of possession or payment of moneys secured by the mortgage or both, any defendant fails to acknowledge service of the claim form, the following provisions of this rule shall apply, and references in those provisions to the defendant shall be construed as references to any such defendant.

    (2) Not less than 4 clear days before the day fixed for the first hearing of the claim the claimant must serve on the defendant a copy of the notice of appointment for the hearing and a copy of the witness statement or affidavit in support of the claim.

    (4) Where the hearing is adjourned, then, subject to any directions given by the Court, the claimant must serve notice of the appointment for the adjourned hearing, together with a copy of any further witness statement or affidavit intended to be used at that hearing, on the defendant not less than 2 clear days before the day fixed for the hearing.

    (5) Service under paragraph (2) or (4) and the manner in which it was effected, may be proved by a certificate signed by the claimant, if he sues in person, and otherwise by his solicitor.

    The certificate may be indorsed on the witness statement or affidavit in support of the claim or, as the case may be, on any further witness statement or affidavit intended to be used at an adjourned hearing.

    (6) A copy of any exhibit to a witness statement or affidavit need not accompany the copy of the witness statement or affidavit served under paragraph (2) or (4).

Claim in Chancery Division for possession or payment: evidence
     Rule 5  - (1) The witness statement or affidavit in support of the claim (other than a claim to which rule 5A applies) to which this rule applies is begun must comply with the following provisions of this rule.

    This rule applies to a mortgage claim in the Chancery Division in which the claimant is the mortgagee and claims delivery of possession or payment of moneys secured by the mortgage or both.

    (2) The witness statement or affidavit must exhibit a true copy of the mortgage and the original mortgage or, in the case of a registered charge, the charge certificate must be produced at the hearing of the claim.

    (2A) Unless the Court otherwise directs the witness statement or affidavit may contain statements of information or belief with the sources and grounds thereof.

    (3) Where the claimant claims delivery of possession the witness statement or affidavit must show the circumstances under which the right to possession arises and, except where the Court in any case or class of case otherwise directs, the state of the account between the mortgagor and mortgagee with particulars of - 

    (a) the amount of the advance,

    (b) the amount of the periodic payments required to be made,

    (c) the amount of any interest or instalments in arrear at the date of issue of the claim form and at the date of the witness statement or affidavit, and

    (d) the amount remaining due under the mortgage.

    (4) Where the claimant claims delivery of possession the witness statement or affidavit must - 

    (a) give particulars of every person who to the best of the claimant's knowledge is in possession of the mortgaged property; and

    (b) state, in the case of a dwelling house, whether - 

      (i) a land charge of Class F has been registered, or a notice or caution registered under s.2 (7) of the Matrimonial Homes Act 1967[156] or a notice registered under section 2 (8) of the Matrimonial Homes Act 1983[157] has been entered, and, if so, on whose behalf; and

      (ii) he has served notice of the proceedings on the person on whose behalf the land charge is registered or the notice or caution entered.

    (5) If the mortgage creates a tenancy other than a tenancy at will between the mortgagor and mortgagee, the witness statement or affidavit must show how and when the tenancy was determined and if by service of notice when the notice was duly served.

    (6) Where the claimant claims payment of money secured by the mortgage the witness statement or affidavit must show how the claim is calculated including - 

    (a) the amount of the advance and the amount and dates of any periodic repayments and any interest claimed;

    (b) the amount which would have to be paid (after taking into account any adjustment for early settlement) in order to redeem the mortgage at the date of commencement of the proceedings and at a stated date not more than 14 days after the date of commencement of the proceedings, specifying the amount of the solicitor's costs and administrative charges which would be payable;

    (c) the dates between which a particular rate of interest applied, the number of days in that period, and the capital on which the interest was calculated.

    (7) Where the claimant's claim includes a claim for interest to judgment, the witness statement or affidavit must state the amount of a day's interest.

Claim for the enforcement of charging order by sale
     Rule 5A  - (1) This rule applies to a mortgage claim in the Chancery Division to enforce a charging order by sale of the property charged.

    (2) The witness statement or affidavit in support of the claim must - 

    (a) identify the charging order sought to be enforced and the subject matter of the charge;

    (b) specify the amount in respect of which the charge was imposed and the balance outstanding at the date of the witness statement or affidavit;

    (c) verify, so far as known, the debtor's title to the property charged;

    (d) identify any prior incumbrancer on the property charged stating, so far as is known, the names and addresses of the incumbrancers and the amounts owing to them;

    (e) set out the claimant's proposals as to the manner of sale of the property charged together with estimates of the gross price which would be obtained on a sale in that manner and of the costs of such a sale; and

    (f) where the property charged consists of land in respect of which the claimant claims delivery of possession - 

      (i) give particulars of every person who to the best of the claimant's knowledge is in possession of the property charged or any part of it; and

      (ii) state, in the case of a dwelling house, whether a land charge of Class F has been registered, or a notice or caution pursuant to section 2 (7) of the Matrimonial Homes Act 1967, or a notice pursuant to section 2 (8) of the Matrimonial Homes Act 1983 has been entered and, if so, on whose behalf, and whether he has served notice of the proceedings on the person on whose behalf the land charge is registered or the notice or caution entered.

Foreclosure in redemption claim
     Rule 7 Where foreclosure has taken place by reason of the failure of the claimant in a mortgage claim for redemption to redeem, the defendant in whose favour the foreclosure has taken place may apply in accordance with CPR Part 23 for an order for delivery to him of possession of the mortgaged property, and the Court may make such order thereon as it thinks fit.



RSC ORDER 91

REVENUE PROCEEDINGS

Assignment to Chancery Division, etc.
     Rule 1 The following proceedings, namely - 

    (a) any case stated for the opinion of the High Court under - 

      (i) section 13 of the Stamp Act 1891[158], or

      (ii) section 705A of the Income and Corporation Taxes Act 1988[159], or

      (iii) regulation 22 of the General Commissioners (Jurisdiction and Procedure) Regulations 1994[160];

    (b) any appeal to the High Court under - 

      (i) section 53, 56A or 100C (4) of the Taxes Management Act 1970[161], or

      (ii) section 222 (3), 225, 249 (3) or 251 of the Inheritance Tax Act 1984[162], or

      (iii) regulation 8 (3) or 10 of the Stamp Duty Reserve Tax Regulations 1986[163];

    (c) any application for permission to appeal under the said section 222 (3) or the said regulation 8 (3); and

    (d) proceedings to which the provisions of section 56A of the Taxes Management Act 1970[164] apply under any enactment or regulation,

shall be assigned to the Chancery Division and heard and determined by a single judge.

Appeal under section 222 of the Inheritance Tax Act 1984[165]
     Rule 2  - (1) Order 55 shall not apply in relation to an appeal to the High Court under section 222 (3) of the Inheritance Tax Act 1984 or Regulation 8 (3) of the Stamp Duty Reserve Tax Regulations 1986.

    (2) Such an appeal must be brought by a notice of appeal which must - 

    (a) state the date on which the Commissioners of Inland Revenue (in this rule referred to as the "Board") gave notice to the appellant under section 221 of the said Act[166] or Regulation 6 of the said Regulations of the determination which is the subject of the appeal;

    (b) state the date on which the appellant gave to the Board notice of appeal under section 222 (1) of the said Act, or Regulation 8 (1) of the said Regulations and, if the notice was not given within the time limited, whether the Board or the Special Commissioners have given consent to the appeal being brought out of time and if they have, the date on which it was given; and

    (c) either state that the appellant and the Board have agreed that the appeal may be to the High Court or contain an application for permission to appeal to the High Court.

    (3) At the time of issuing the notice of appeal the appellant shall file in Chancery Chambers - 

    (a) two copies of the notice referred to in paragraph (2)(a);

    (b) two copies of the notice of appeal (under section 222 (1) of the said Act, or Regulation 8 (1) of the said Regulations) referred to in paragraph (2)(b); and

    (c) where the notice of appeal contains an application for permission to appeal, a witness statement or affidavit setting out the grounds on which it is alleged that the matters to be decided on the appeal are likely to be substantially confined to questions of law.

    (4) The notice of appeal must be issued and served on the Board within 30 days of the date on which the appellant gave to the Board notice of appeal under section 222 (1) of the said Act or Regulation (8)(1) of the said Regulations or, if the Board or the Special Commissioners have given consent to the appeal being brought out of time, within 30 days of the date on which such consent was given.

    (5) The notice of appeal, must specify a date of hearing being not less than 40 days from the issue of the notice of appeal.

    (6) Where the notice of appeal contains an application for permission to appeal to the High Court, a copy of the witness statement or affidavit lodged pursuant to paragraph (3)(c) shall be served on the Board with the notice of appeal and the Board may, within 30 days after service, file in the judge's chambers a witness statement or affidavit in answer and a copy of any such witness statement or affidavit shall be served by the Board on the appellant.

    (7) Except with the permission of the Court, the appellant shall not be entitled on the hearing of an appeal to rely on any grounds of appeal not specified in the notice referred to in paragraph (2)(b).

Setting down case stated under Taxes Management Act 1970
     Rule 3  - (1) At any time after a case stated under section 705A of the Income and Corporation Taxes Act 1988 or Regulation 22 of the General Commissioners (Jurisdiction and Procedure) Regulations 1994 has been filed in Chancery Chambers either party may set down the case for hearing.

    (2) On setting down the case the party who sets it down must give notice to the other party that he has done so.

Case stated: notice to be given of certain matters
     Rule 4 Not less than 10 days before the hearing of such a case as is mentioned in rule 1 (a) either party must give notice to the other of any point which he intends to take at the hearing and which might take the other party by surprise and leave at Chancery Chambers two copies of the notice for the use of the Court.

Appeals under section 53 and 100C (4) of the Taxes Management Act 1970
     Rule 5  - (1) The notice of appeal by which an appeal under section 53 or 100C (4) of the Taxes Management Act 1970 or section 249 (3) or 251 of the Inheritance Tax Act 1984 is brought must be issued out of Chancery Chambers.

    (2) Order 55, rule 3 (2), shall apply in relation to the notice of appeal as if the decision, award or determination appealed against were the decision of a court.

    (3) The persons to be served with the notice are the General or Special Commissioners against whose decision, award or determination the appeal is brought and - 

    (a) in the case of an appeal brought under section 100C (4) of the Taxes Management Act 1970 or section 249 (3) of the Inheritance Tax Act 1984 by any party other than the defendant in the proceedings before the Commissioners, that defendant;

    (b) in any other case, the Commissioners of Inland Revenue.

    (4) Order 55, rules 4 (2) and 5, shall apply in relation to any such appeal as if for the period of 28 days and 21 days therein specified there were substituted a period of 30 days and 35 days respectively.

    (5) Within 30 days after the service on them of the notice by which any such appeal is brought, the General or Special Commissioners, as the case may be, must file in Chancery Chambers two copies of a note of their findings and of the reasons for their decision, award or determination and must serve a copy of the note on every other party to the appeal.

    (6) Any document required or authorised to be served on the General or Special Commissioners in proceedings to which this rule relates may be served by delivering or sending it to their clerk.

    (7) Order 57 shall not apply to proceedings to which this rule applies.

Appeals under section 56A of the Taxes Management Act 1970, section 225 of the Inheritance Tax Act 1984 and regulation 10 of the Stamp Duty Reserve Tax Regulations 1986
     Rule 5A  - (1) This rule applies to appeals under section 56A of the Taxes Management Act 1970, section 225 of the Inheritance Tax Act 1984 and regulation 10 of the Stamp Duty Reserve Tax Regulations 1986.

    (2) The notice of appeal by which such an appeal is brought must be issued out of Chancery Chambers.

    (3) Order 55, rule 3 (2) shall apply in relation to the notice of appeal as if the decision or determination appealed against were the decision of a court.

    (4) Order 55, rule 4 (2) shall apply in relation to such an appeal as if for the period of 28 days specified in that rule there were substituted a period of 56 days, except where the appeal is made following the refusal of the Special Commissioners to issue a certificate under section 56A (2)(b) of the Taxes Management Act 1970 or the refusal of permission to appeal to the Court of Appeal under section 56A (2)(c) of that Act.

    (5) Where the appeal is made following the refusal of the Special Commissioners to issue a certificate under section 56A (2)(b) of the Taxes Management Act 1970, the period of 28 days specified in Order 55, rule 4 (2) shall be calculated from the date of the release of the decision of the Special Commissioners containing the refusal.

    (6) Where the appeal is made following the refusal of permission to appeal to the Court of Appeal under section 56A (2)(c) of the Taxes Management Act 1970, the period of 28 days specified in Order 55, r.4 (2) shall be calculated from the date when permission is refused.

    (7) Order 57 shall not apply to proceedings to which this rule applies.

Appeals from value added tax tribunals
     Rule 6  - (1) A party to proceedings before a value added tax tribunal who is dissatisfied in point of law with a decision of the tribunal may appeal under section 11 (1) of the Tribunals and Inquiries Act 1992[167] to the High Court and Order 94, rule 9 shall not apply in relation to such an appeal.

    (2) Such an appeal shall be heard and determined by a single judge of the Queen's Bench Division or, where both parties consent, by a single judge of the Chancery Division.

    (3) Order 55, rule 4 (2) shall apply in relation to any such appeal as if for the period of 28 days specified in that rule there were substituted a period of 56 days, except where the appeal is made following the refusal of the Value Added Tax Tribunal to grant a certificate under article 2 (b) of the Value Added Tax Tribunal Appeals Order 1986[168].

    (3A) Where the tribunal has refused to grant a certificate under article 2 (b) of the Value Added Tax Tribunal Appeals Order 1986, the 28 day period mentioned in Order 55, rule 4 (2) shall be calculated from the date of the release of the decision of the tribunal containing the refusal.

    (4) This rule is without prejudice to the right of the parties to appeal direct to the Court of Appeal in accordance with Order 59, rule 22.



RSC ORDER 92

LODGMENT, INVESTMENT, ETC., OF FUNDS IN COURT: CHANCERY DIV ISION

Payment into court by life assurance company
     Rule 1  - (1) A company wishing to make a payment into court under the Life Assurance Companies (Payment into Court) Act, 1896[169] (hereinafter referred to as "the Act of 1896") must file a witness statement or affidavit, made by its secretary or other authorised officer, setting out - 

    (a) a short description of the policy in question and a statement of the persons entitled thereunder with their names and addresses so far as known to the company,

    (b) a short statement of the notices received by the company claiming an interest in or title to the money assured, or withdrawing any such claim, with the dates of receipt thereof and the names and addresses of the persons by whom they were given,

    (c) a statement that, in the opinion of the board of directors of the company, no sufficient discharge can be obtained otherwise than by payment into court under the Act of 1896,

    (d) the submission by the company to pay into court such further sum, if any, as the Court may direct and to pay any costs ordered by the Court to be paid by the company,

    (e) an undertaking by the company forthwith to send to the Accountant General any notice of claim received by the company after the making of the witness statement or affidavit with a letter referring to the title of the witness statement or affidavit, and

    (f) an address where the company may be served with any application, claim form, court order, or notice of any proceedings, relating to the money paid into court.

    (2) The company shall not deduct from the money payable by them under the policy any costs of or incidental to the payment into court.

    (3) No payment shall be made into court under the Act of 1896 where any proceedings to which the company is a party are pending in relation to the policy or moneys thereby assured except with the leave of the Court to be obtained by an application made in accordance with CPR Part 23.

    (4) Unless the Court otherwise directs, a CPR Part 23 application by which a claim with respect to money paid into court under the Act of 1896 is made shall not, except where the application includes an application for payment of a further sum of costs by the company who made the payment, be served on that company, but it must be served on every person who appears by the witness statement or affidavit on which the payment into court was made to be entitled to, or interested in, the money in court or to have a claim upon it or who has given a notice of claim which has been sent to the Accountant General in accordance with the undertaking referred to in rule 1 (1)(e).

Payment into court under Trustee Act 1925
     Rule 2  - (1) Subject to paragraph (2) any trustee wishing to make a payment into court under section 63 of the Trustee Act 1925[170], must make and file a witness statement or affidavit setting out - 

    (a) a short description of the trust and of the instrument creating it or, as the case may be, of the circumstances in which the trust arose,

    (b) the names of the persons interested in or entitled to the money or securities to be paid into court with their addresses so far as known to him,

    (c) his submission to answer all such inquiries relating to the application of such money or securities as the Court may make or direct, and

    (d) an address where he may be served with any application notice or order, or notice of any proceedings, relating to the money or securities paid into court.

    (2) Where the money or securities represents a legacy, or residue or any share thereof, to which an child or a person resident outside the United Kingdom is absolutely entitled, no witness statement or affidavit need be filed under paragraph (1) and the money or securities may be paid into court in the manner prescribed by the Supreme Court Funds Rules for the time being in force.

Payments into court under section 26, Banking Act 1987
     Rule 3A Where the Bank of England, having sold shares in pursuance of an order under section 26 of the Banking Act 1987[171], pays the proceeds of sale, less the costs of the sale, into court, it shall cause a witness statement or affidavit to be made and filed setting out the names and, so far as known, the addresses of the persons beneficially entitled to the proceeds of sale and shall file a copy of the order.

Notice of lodgment
     Rule 4 Any person who has lodged money or securities in court in accordance with rule 1, 2, or 3A must forthwith send notice of the lodgment to every person appearing from the witness statement or affidavit on which the lodgment was made to be entitled to, or to have an interest in, the money or securities lodged.

Applications with respect to funds in court
     Rule 5  - (1) Where an application to the High Court - 

    (a) for the payment or transfer to any person of any funds in court standing to the credit of any cause or matter or for the transfer of any such funds to a separate account or for the payment to any person of any dividend of or interest on any securities or money comprised in such funds;

    (b) for the investment, or change of investment, of any funds in court;

    (c) for payment of the dividends of or interest on any funds in court representing or comprising money or securities lodged in court under any enactment; or

    (d) for the payment or transfer out of court of any such funds as are mentioned in sub-paragraph (c),

is made in the Chancery Division the application may be disposed of by the court sitting in private.

    (2) Subject to paragraph (3), any such application made in the Chancery Division must be made by the issue of a claim form, unless the application is made in pending proceedings or an application for the same purpose has previously been made by such a claim form.

    (3) Where an application under paragraph (1)(d) is required to be made by a claim form, then, if the funds to which the application relates do not exceed 15,000 in value, and subject to paragraph (4), the application may be made to the chief master, or to such master as he may designate, and the master may dispose of the application or may direct it to be made by a claim form.

    Unless otherwise directed, an application under this paragraph shall be made by witness statement or affidavit, and need not be served on any other person.

    (4) Where the application to which paragraph (3) applies relates to funds lodged in court in a Chancery district registry, the application may be made to, and the power conferred by paragraph (3) on a master may be exercised by, the district judge of that registry.

    (5) This rule does not apply to any application for an order under CPR Part 36 and CPR Part 37.






Notes


[155] 1974 c.39.back

[156] 1967 c.75.back

[157] 1983 c.19.back

[158] 1891 c.39; section 13 was amended by the Administration of Justice (Miscellaneous Provisions) Act 1933 (c.36), section 10(3), schedule 3.back

[159] 1988 c.1; section 705A was inserted by S.I. 1994/1813.back

[160] S.I. 1994/1812.back

[161] 1970 c.9; sections 53 and 56A were substituted by S.I. 1994/1813. Section 100C was inserted by the Finance Act 1989 (c.26).back

[162] 1984 c.51; sections 225 and 251 were substituted by S.I. 1994/1813.back

[163] S.I. 1986/1711.back

[164] 1970 c.9; section 56A was substituted by S.I. 1994/1813.back

[165] 1984 c.51.back

[166] Section 221 was amended by the Finance Act 1985 (c.54), section 94, schedule 26, paragraph 5.back

[167] 1992 c.53; section 11(1) was amended by the Education Act 1993 (c.35) section 181(2); the Sea Fish Conservation Act 1992 (c.60), section 9; and by the Education Act 1996 (c.56), section 582(1), schedule 37, Part 1, paragraph 118.back

[168] S.I. 1986/2288.back

[169] 1896 c.8.back

[170] 1925 c.19; section 63 was amended by the Administration of Justice Act 1965 (c.2), section 36(4), schedule 3.back

[171] 1987 c.22; section 26 was amended by the Bank of England Act 1998 (c.11), section 23(1), schedule 5, paragraphs 1,9.back



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