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

Back to previous page

 

SCHEDULE 2
Rule 50(4)


CCR ORDER 1


CITATION, APPLICATION AND INTERPRETATION

Application of RSC to county court proceedings
     Rule 6 Where by virtue of these rules or section 76 of the Act or otherwise any provision of the RSC is applied in relation to proceedings in a county court, that provision shall have effect with the necessary modifications and in particular - 

    (b) any reference in that provision to a master, district judge of the principal registry of the Family Division, the Admiralty registrar, or a district judge or taxing officer shall be construed as a reference to the district judge of the county court; and

    (d) any reference in that provision to an office of the Supreme Court having the conduct of the business of a division or court or a district registry shall be construed as a reference to the county court office.



CCR ORDER 3

COMMENCEMENT OF PROCEEDINGS

Appeals to county court
     Rule 6  - (1) Where by or under any Act an appeal lies to a county court from any order, decision or award of any tribunal or person, then, subject to any special provision made by or under the Act, the provisions of this rule shall apply.

    (2) The appellant shall, within 21 days after the date of the order, decision or award, file - 

    (a) a request for the entry of the appeal, stating the names and addresses of the persons intended to be served (in this rule called "respondents") and the appellant's address for service, together with as many copies of the request as there are respondents; and

    (b) a copy of the order, decision or award appealed against.

    (3) Where the provision under which the appeal lies requires the appellant to give to the other parties notice in writing of his intention to appeal and of the grounds of his appeal, the appellant shall file a copy of such notice with the request, and in any other case he shall include in his request a statement of the grounds of the appeal.

    (4) On the filing of the documents mentioned in paragraphs (2) and (3) the court officer shall - 

    (a) enter the appeal in the records of the court and fix the return day;

    (b) prepare a notice to each respondent of the day on which the appeal will be heard and annex each copy of the request for the entry of the appeal to a copy of the notice; and

    (c) deliver a notice of issue to the appellant.

    (5) The return day shall be a day fixed for the hearing of the appeal by the judge (or, if the district judge has jurisdiction to hear the appeal, by the district judge) or, if the court so directs, a day fixed for a pre-trial review.

    (6) The notice of the day of hearing shall be served - 

    (a) by the appellant delivering the notice to the respondent personally; or

    (b) by the court sending it by first-class post to the respondent - 

      (i) at his address for service; or

      (ii) where CPR rule 6.5(5) applies at the place of service specified in that rule.

    (7) Unless the appellant otherwise requests, service shall be effected in accordance with paragraph (6)(b).

    (8) Where a notice is served in accordance with paragraph (6)(b) the date of service shall, unless the contrary is shown, be deemed to be the seventh day after the date on which the notice was sent to the respondent.

    (9) Where - 

    (a) a notice has been sent by post in accordance with paragraph (6)(b) to the respondent's address for service; and

    (b) the notice has been returned to the court office undelivered,

the court shall send notice of non-service to the appellant pursuant to CPR Rule 6.11 together with a notice informing him that he may request bailiff service at that address.

    (10) If the appellant requests bailiff service under paragraph (9), it shall be effected by a bailiff of the court - 

    (a) inserting the notice, enclosed in an envelope addressed to the respondent, through the letter-box at the respondent's address for service;

    (b) delivering the notice to some person, apparently not less than 16 years old, at the respondent's address for service; or

    (c) delivering the notice to the respondent personally.

    (11) Service of a notice shall be effected not less than 21 days before the hearing, but service may be effected at any time before the hearing on the appellant satisfying the court by witness statement or affidavit that the respondent is about to remove from his address for service.



CCR ORDER 4

VENUE FOR BRINGING PROCEEDINGS

Proceedings relating to land
     Rule 3 Proceedings - 

    (a) for the recovery of land;

    (b) for the foreclosure or redemption of any mortgage or, subject to Order 31, rule 4, for enforcing any charge or lien on land; or

    (c) for the recovery of moneys secured by a mortgage or charge on land,

may be commenced only in the court for the district in which the land or any part of the land is situated.



CCR ORDER 5

CAUSES OF ACTION AND PARTIES

Representative proceedings
     Rule 5  - (1) Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 6, the proceedings may be begun and, unless the court otherwise orders, continued, by or against any one or more of them as representing all or all except one or more of them.

    (2) At any stage of proceedings under this rule the court may - 

    (a) on the application of a claimant who is suing in a representative capacity, appoint him to represent all, or all except one or more, of the persons on whose behalf he sues;

    (b) on the application of the claimant or of a defendant who is sued in a representative capacity, appoint any one or more of the defendants or other persons on whose behalf the defendants are sued to represent all, or all except one or more, of those persons.

Where in the exercise of the power conferred by sub-paragraph (b) the court appoints a person not named as a defendant, it shall make an order under CPR rule 19.1 adding that person as a defendant.

    (3) An application under paragraph (2) - 

    (a) if made under sub-paragraph (a), may be made without notice being served on any other party;

    (b) if made under sub-paragraph (b), shall be made on notice - 

      (i) where the applicant is the claimant, to the person sought to be appointed, or

      (ii) where the applicant is a defendant, to the claimant and to any person, other than the applicant, sought to be appointed;

    and in each case the notice shall state the facts on which the applicant relies and the names and addresses or, where appropriate a collective description, of the persons to be represented.

    (4) Where an order is made granting an application under paragraph (2)(b), the court shall send a notice of the order to the person to whom notice of the application was given and shall notify other persons affected by the order in such manner as the court may direct.

    (5) A judgment or order given or made in proceedings under this rule shall be binding on all persons on whose behalf the claimant sues or, as the case may be, the defendant is sued but shall not be enforced against any person not a party to the proceedings except with the permission of the court.

    (6) An application for permission under paragraph (5) shall be made on notice to the person against whom it is sought to enforce the judgment or order and, notwithstanding that the judgment or order is binding on him, he may dispute liability to have it enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from such liability.

Representation of person or class
     Rule 6  - (1) In any proceedings concerning - 

    (a) the estate of a deceased person,

    (b) property subject to a trust, or

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

the court may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested in or affected by the proceedings, if the person, the class or some member of the class cannot readily be ascertained or cannot be found or if it otherwise appears to the court expedient to exercise this power for the purpose of saving expense.

    (2) A judgment or order given or made when a person or persons appointed under paragraph (1) is or are before the court shall be binding on the person or class so represented.

    (3) Where, in proceedings to which paragraph (1) applies, a compromise is proposed and some of the persons who are interested in or who may be affected by the compromise (including unborn or unascertained persons) are not parties to the proceedings but - 

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

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

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

Representation of estate where no personal representative
     Rule 7  - (1) Where in any proceedings it appears to the court that a deceased person who was interested in the matter in question in the proceedings has no personal representative, the court may, on the application of any party to the proceedings - 

    (a) proceed in the absence of a person representing the estate of the deceased person or

    (b) by order appoint a person to represent the estate for the purpose of the proceedings.

    (2) Any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as if a personal representative of that person had been a party to the proceedings.

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

Proceedings against estates
     Rule 8  - (1) Where any person against whom a claim would have laid has died but the cause of action survives, the claim may, if no grant of probate or administration has been made, be brought against the estate of the deceased.

    (2) Without prejudice to the generality of paragraph (1), a claim brought against "the personal representatives of A.B. deceased" shall be treated, for the purposes of that paragraph, as having been brought against his estate.

    (3) A claim purporting to have been commenced against a person shall be treated, if he was dead at its commencement, as having been commenced against his estate in accordance with paragraph (1), whether or not a grant of probate or administration was made before its commencement.

    (4) In any such claim as is referred to in paragraph (1) or (3) - 

    (a) the claimant shall, where the court fixed a date for the hearing when it issued the claim, on or before that date, or, in any other case within the time allowed for service of the claim form, apply to the court for an order appointing a person to represent the deceased's estate for the purpose of the proceedings or, if a grant of probate or administration has been made, for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person so appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;

    (b) the court may, at any stage of the proceedings and on such terms as it thinks just and either of its own motion or on application, make any such order as is mentioned in sub-paragraph (a) and allow such amendments (if any) to be made and make such other order as the court thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.

    (5) Before making an order under paragraph (4) the court may require notice to be given to any insurer of the deceased who has an interest in the proceedings and to such (if any) of the persons having an interest in the estate as it thinks fit.

    (6) Where an order is made under paragraph (4), the person against whom the proceedings are to be carried on shall be served with a copy of the order, together with a copy of the application notice if any.

    (7) Where no grant of probate or administration has been made, any judgment or order given or made in the proceedings shall bind the estate to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceedings.

Partners may sue and be sued in firm name
     Rule 9  - (1) Subject to the provisions of any enactment, any two or more persons claiming to be entitled, or alleged to be liable, as partners in respect of a cause of action and carrying on business within England or Wales may sue or be sued in the name of the firm of which they were partners when the cause of action arose.

    (2) Where partners sue or are sued in the name of the firm, the partners shall, on demand made in writing by any other party, forthwith deliver to the party making the demand and file a statement of the names and places of residence of all the persons who were partners in the firm when the cause of action arose.

    (3) If the partners fail to comply with such a demand, the court, on application by any other party, may order the partners to furnish him with such a statement and to verify it on oath and may direct that in default - 

    (a) if the partners are claimants, the proceedings be stayed on such terms as the court thinks fit, or

    (b) if the partners are defendants, they be debarred from defending the claim.

    (4) When the names and places of residence of the partners have been stated in compliance with a demand or order under this rule, the proceedings shall continue in the name of the firm.

Defendant carrying on business in another name
     Rule 10  - (1) A person carrying on business in England or Wales in a name other than his own name may, whether or not he is within the jurisdiction, be sued - 

    (a) in his own name, followed by the words "trading as A.B.", or

    (b) in his business name, followed by the words "(a trading name)".

    (2) Where a person is sued in his business name in accordance with paragraph (1)(b), the provisions of these rules relating to claims against firms shall, subject to the provisions of any enactment, apply as if he were a partner and the name in which he carried on business were the name of his firm.

Failure to proceed after death of party
     Rule 12  - (1) If, after the death of a claimant or defendant in any claim or matter, the cause of action survives but no order is made substituting any person in whom the cause of action vests or, as the case may be, the personal representatives of the deceased defendant, the defendant or, as the case may be, those representatives may apply to the court for an order that unless the claim is proceeded with within such time as may be specified in the order the claim shall be struck out as against the claimant or defendant who has died; but where it is the claimant who has died, the court shall not make an order unless satisfied that notice of the application has been given to the personal representatives (if any) of the deceased claimant and to any other interested person who the court considers should be notified.

    (2) Where a counterclaim is made by a defendant to any claim this rule shall apply in relation to the counterclaim as if the counterclaim were a separate claim and as if the defendant making a counterclaim were a claimant and the person against whom it is made a defendant.

Claim to money in court where change in parties after judgment
     Rule 13  - (1) Where any change had taken place after judgment, by death, assignment or otherwise, in the parties to any claim and there is money standing in court to the credit of the claim, any person claiming to be entitled to the money may give to the court notice of his claim, accompanied by a witness statement or affidavit verifying the facts stated in the notice.

    (2) The district judge may, if satisfied as to the entitlement of the person giving notice, cause the money to be paid to him or may refer the claim to the judge and may require the claimant to give notice of the claim to any other person.

    (3) It shall not be necessary for notice to be given under this rule where the person claiming to be entitled to the money in court has obtained permission under Order 26, rule 5, to issue a warrant of execution.

Bankruptcy of claimant
     Rule 14 Rules 11 and 13 shall not apply to any case for which provision is made by section 49 of the Act.



CCR ORDER 6

PARTICULARS OF CLAIM

Recovery of land
     Rule 3  - (1) In a claim for recovery of land the particulars of claim shall - 

    (a) identify the land sought to be recovered;

    (b) state whether the land consists of or includes a dwelling-house;

    (c) give details about the agreement or tenancy, if any, under which the land is held, stating when it commenced and the amount of money payable by way of rent or licence fee;

    (d) in a case to which section 138 of the Act applies (forfeiture for non-payment of rent), state the daily rate at which the rent in arrear is to be calculated; and

    (e) state the ground on which possession is claimed, whether statutory or otherwise.

    (2) In proceedings for forfeiture where the claimant knows of any person entitled to claim relief against forfeiture as underlessee (including a mortgagee) under section 146 (4) of the Law of Property Act 1925[255] or under section 138 (9C) of the County Courts Act 1984[256], the particulars of claim shall give the name and address of that person and the claimant shall file a copy of the particulars of claim for service on him.

    (3) Where possession of land which consists of or includes a dwelling-house is claimed because of non-payment of rent, the particulars of claim shall be in the prescribed form and shall also - 

    (a) state the amount due at the commencement of the proceedings;

    (b) give - 

      (i) (whether by means of a schedule or otherwise) particulars of all the payments which have been missed altogether; and

      (ii) where a history of late or under-payments is relied upon, sufficient details to establish the claimant's case;

    (c) state any previous steps which the claimant has taken to recover arrears of rent and, in the case of court proceedings, state - 

      (i) the dates when proceedings were commenced and concluded; and

      (ii) the dates and terms of any orders made;

    (d) give such relevant information as is known by the claimant about the defendant's circumstances and, in particular, whether (and, if so, what) payments on his behalf are made direct to the claimant by or under the Social Security Contributions and Benefits Act 1992[257];and

    (e) if the claimant intends as part of his case to rely on his own financial or other circumstances, give details of all relevant facts or matters.

Mortgage claim
     Rule 5  - (1) Where a claimant claims as mortgagee payment of moneys secured by a mortgage of real or leasehold property or possession of such property, the particulars of claim shall contain the information required under this rule and, as the case may be, by rule 5A.

    (2) Where there is more than one loan secured by the mortgage, the information required under the following paragraphs of this rule and under rule 5A shall be provided in respect of each loan agreement.

    (3) The particulars shall state the date of the mortgage and identify the land sought to be recovered.

    (4) Where possession of the property is claimed, the particulars of claim shall state whether or not the property consists of or includes a dwelling-house within the meaning of section 21 of the Act.

    (5) The particulars shall state whether or not the loan which is secured by the mortgage is a regulated consumer credit agreement and, if so, specify the date on which any notice required by section 76 or section 87 of the Consumer Credit Act 1974[258] was given.

    (6) The particulars shall show the state of account between the claimant and the defendant by including - 

    (a) the amount of the advance and of any periodic repayment and any payment of interest required to be made;

    (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 a stated date not more than 14 days after the commencement of proceedings specifying the amount of solicitor's costs and administrative charges which would be payable;

    (c) where the loan which is secured by the mortgage is a regulated consumer credit agreement, the total amount outstanding under the terms of the mortgage;

    (d) the rate of interest payable - 

      (i) at the commencement of the mortgage;

      (ii) immediately before any arrears referred to in sub-paragraph (e) accrued; and

      (iii) where it differs from that provided under (ii) above, at the commencement of the proceedings; and

    (e) the amount of any interest or instalments in arrear at the commencement of the proceedings.

    (7) The particulars of claim shall state any previous steps which the claimant has taken to recover the moneys secured by the mortgage or the mortgaged property and, in the case of court proceedings, state - 

    (a) the dates when proceedings were commenced and concluded, and

    (b) the dates and terms of any orders made.

    (8) In this rule "mortgage" includes a legal or equitable mortgage and a legal or equitable charge, and references to the mortgaged property and mortgagee shall be construed accordingly.

Mortgage claim - dwelling-house
     Rule 5A  - (1) This rule applies where a claimant claims as mortgagee possession of land which consists of or includes a dwelling-house and in such a case the particulars of claim shall be in the prescribed form.

    (2) Where the claimant's claim is brought because of failure to make the periodic payments due, the particulars of claim shall - 

    (a) give details (whether by means of a schedule or otherwise) of all the payments which have been missed altogether;

    (b) where a history of late or under-payments is relied upon, provide sufficient details to establish the claimant's case;

    (c) give details of any other payments required to be made as a term of the mortgage (such as for insurance premiums, legal costs, default interest, penalties, administrative or other charges) together with any other sums claimed stating the nature and amount of each such charge, whether any payment is in arrear and whether or not it is included in the amount of any periodic payment;

    (d) give such relevant information as is known by the claimant about the defendant's circumstances and, in particular, whether (and, if so, what) payments on his behalf are made direct to the claimant by or under the Social Security Contributions and Benefits Act 1992[259].

    (3) In a claim to which this rule applies, the claimant shall state in his particulars of claim whether there is any person on whom notice of the claim is required to be served in accordance with section 8 (3) of the Matrimonial Homes Act 1983[260] and, if so, he shall state the name and address of that person and shall file a copy of the particulars of claim for service on that person.

    (4) In this rule "mortgage" has the same meaning as in rule 5 (8).

Hire-purchase
     Rule 6  - (1) Where a claimant claims the delivery of goods let under a hire-purchase agreement to a person other than a body corporate, he shall in his particulars state in the order following - 

    (a) the date of the agreement and the parties to it with the number of the agreement or sufficient particulars to enable the debtor to identify the agreement;

    (b) where the claimant was not one of the original parties to the agreement, the means by which the rights and duties of the creditor under the agreement passed to him;

    (c) whether the agreement is a regulated agreement and, if it is not a regulated agreement, the reason why;

    (d) the place where the agreement was signed by the debtor (if known);

    (e) the goods claimed;

    (f) the total price of the goods;

    (g) the paid-up sum;

    (h) the unpaid balance of the total price;

    (i) whether a default notice or a notice under section 76 (1) or section 98 (1) of the Consumer Credit Act 1974 has been served on the debtor, and if it has, the date on which and the manner in which it was so served;

    (j) the date when the right to demand delivery of the goods accrued;

    (k) the amount (if any) claimed as an alternative to the delivery of the goods; and

    (l) the amount (if any) claimed in addition to the delivery of the goods or any claim under sub-paragraph (k), stating the cause of action in respect of which each such claim is made.

    (2) Where a claimant's claim arises out of a hire-purchase agreement but is not for the delivery of goods, he shall in his particulars state in the order following - 

    (a) the date of the agreement and the parties to it with the number of the agreement or sufficient particulars to enable the debtor to identify the agreement;

    (b) where the claimant was not one of the original parties to the agreement, the means by which the rights and duties of the creditor under the agreement passed to him;

    (c) whether the agreement is a regulated agreement and, if it is not a regulated agreement, the reason why;

    (d) the place where the agreement was signed by the debtor (if known);

    (e) the goods let under the agreement;

    (f) the amount of the total price;

    (g) the paid-up sum;

    (h) the amount (if any) claimed as being due and unpaid in respect of any instalment or instalments of the total price; and

    (i) the nature and amount of any other claim and the circumstances in which it arises.

    (3) Expressions used in this rule which are defined by the Consumer Credit Act 1974 have the same meanings in this rule as they have in that Act.






Notes


[255] 1925 c.20.back

[256] 1984 c.28; section 138 was amended by the Administration of Justice Act 1985 (c.61), sections 55 and 67(2), schedule 8; and by the Courts and Legal Services Act 1990 (c.41), section 125(2), schedule 17, paragraph 17.back

[257] 1992 c.4.back

[258] 1974 c.39.back

[259] 1992 c.4.back

[260] 1983 c.19.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