This practice direction supplements Part 53
1. If a Media and Communications Judge orders proceedings to be transferred to the Media and Communications List—
(1) the judge will order them to be transferred to the Royal Courts of Justice; and
(2) the judge may give case management directions.
2. An application by a defendant, including a Part 30 defendant, for an order transferring proceedings to or from the Media and Communications List should be made promptly and normally not later than the first case management conference.
3. A party applying for an order transferring a claim to the Media and Communications List must give notice of the application to the court or list in which the claim is proceeding, and the Media and Communications Judge will not make an order for transfer unless and until satisfied that such notice and any applicable consent has been given.
4. A Media and Communications Judge may decide that the court should consider of its own motion whether a claim should be transferred from the Media and Communications List. If the judge does so, CPR rules 3.3 and 23.8(c) apply.
5. A Media and Communications List Judge deciding whether to transfer a claim to or from the Media and Communications List will consider whether the claim or any part of it—
(1) falls outside the scope of that list (whether or not it also falls within the scope of Part 63); or
(2) falls within the scope of the list but would more conveniently be dealt with in another court or list, and make such order as the court considers appropriate in the light of its conclusions.
6. This practice direction is subject to CPR rule 30.5.
Pre-action Protocol for Media and Communications Claims
Pre-action Protocol for Media and Communications Claims
Contents
| Title | Number |
|---|---|
| Introduction | 1 |
| Aims of the Protocol | 2 |
| Pre-action protocols for Media and Communications List causes of action | 3 |
1 Introduction
1.1 This Pre-Action Protocol was updated after a consultation following the formation of the Media and Communications List in 2017. It now applies to cases within the scope of CPR rule 53.1: all cases involving claims in defamation, misuse of private information, data protection law or harassment by publication, and claims in breach of confidence and malicious falsehood which arise from publication or threatened publication by the print or broadcast media, online, on social media, or in speech.
1.2 This Protocol is intended to encourage exchange of information between parties at an early stage and to provide a clear framework within which parties to a media and communications claim, acting in good faith, can explore the early and appropriate resolution of that claim.
1.3 The courts will treat the standards set out in this Protocol as the normal reasonable approach for parties to a media and communications claim. Therefore, the courts will expect parties to have complied with this Protocol in good time before proceedings are issued. Should a claim proceed to litigation, the extent to which this Protocol has been followed by the parties will assist the court in dealing with liability for costs and making other orders.
1.4 There are important features which distinguish defamation claims and other media and communications cases from other areas of civil litigation, and these must be borne in mind when both applying, and reviewing the application of, the Pre-Action Protocol. In particular, time is frequently ‘of the essence’ in defamation and other publication claims; the limitation period is (uniquely) only 1 year in defamation and malicious falsehood cases, and often, a Claimant will be seeking an immediate correction and/or apology as part of the process of restoring his/her reputation.
Litigants in Person
If a party to the claim does not have a legal representative they should still, in so far as reasonably possible, fully comply with this Protocol.
If a party to a claim becomes aware that another party is a litigant in person, they should send a copy of this Protocol to the litigant in person at the earliest opportunity
2 Aims of the Protocol
2.1 The aims of this Protocol are to enable the parties to prospective claims to:
(a) understand and properly identify the issues in dispute and to share information and relevant documents;
(b) make informed decisions as to whether and how to proceed;
(c) try to settle the dispute without proceedings or reduce the issues in dispute;
(d) avoid unnecessary expense and control the costs of resolving the dispute; and
(e) support the efficient management of proceedings where court proceedings cannot be avoided.
Proportionality
2.2 In formulating both the Letter of Claim and Response and in taking any subsequent steps, the parties should act reasonably to keep costs proportionate to the nature and gravity of the case and the stage the complaint has reached.
3 Pre-action protocols for Media and Communications List causes of action
3.1 Letter of Claim
The Claimant should notify the Defendant of his/her claim in writing at the earliest reasonable opportunity.
In respect of all causes of action falling within the Media and Communications List, the Claimant should include the following information:
- name of Claimant;
- the nature of and basis for the entitlement to the remedies sought by the Claimant;
- any facts or matters relevant to England and Wales being the most appropriate forum for the dispute; and
- details of any funding arrangement in place.
3.2 Letter of Claim (Defamation, Slander and Malicious Falsehood)
The Letter of Claim should additionally include the following information—
- sufficient details to identify the specific publication which contained the statement complained of;
- the statement complained of and, if known, the date of publication; where possible, a copy or transcript of the statement complained of should be enclosed and, in the case of slander, where and in what circumstances as far as known the statement complained of was spoken;
- the imputation the Claimant contends was conveyed by the statement complained of;
- factual inaccuracies or unsupportable comment within the statement complained of; the Claimant should give a sufficient explanation to enable the Defendant to appreciate why the statement is inaccurate or unsupportable;
- for defamation claims, how or why the Claimant says that the statement complained of has caused or is likely to cause serious harm for the purposes of section 1 Defamation Act 2013 including, when the Claimant is a body that trades for profit, such details
- as are available of the nature and value of the serious financial loss which the Claimant says has been caused or is likely to be caused by publication of the statement complained of;
- for slander or malicious falsehood claims, how or why the Claimant says that publication of the statement complained of has caused, or is likely to cause, special damage or pecuniary loss, or why publication of the statement is actionable without proof of actual loss; and,
- in malicious falsehood claims an outline of the Claimant’s case with regard to malice.
- where relevant, the Letter of Claim should also include—
- any facts or matters which make the Claimant identifiable from the statement complained of; and,
- details of any special facts relevant to the interpretation of the statement complained of and/or any particular damage caused by the statement complained of.
3.3 Letter of Claim (Privacy, Breach of Confidence)
The Letter of Claim should additionally include the following information—
- the information or categories of information which is claimed to constitute confidential information or in respect of which the Claimant is said to have a reasonable expectation of privacy;
- sufficient details to identify the publication or proposed publication containing the relevant information;
- details of the circumstances giving rise to confidentiality or a reasonable expectation of privacy (in breach of confidence or misuse of private information claims respectively);
- why the information is claimed to constitute information in respect of which the Claimant has a reasonable expectation of privacy or confidential information of a nature that should not be published or continued to be published, including details of any damage or distress suffered or anticipated, where an interim non-disclosure order or final non-disclosure order to restrain publication is sought; and,
- in claims for misuse of private information, why it is claimed that the Claimant’s right to private and family life outweighs the right to freedom of expression; in respect of confidential information, in so far as known, the extent to which the information is already in the public domain; the nature and any available details of any particular damage caused or likely to be caused by the publication, proposed publication or processing complained of.
- When, at the time of sending the letter of claim, the Claimant intends to make an application for dispensation from the requirements of CPR PD16 (Statements of Case) with a view to bringing his/her claim anonymously, this should be indicated in the letter of claim, which should also give an indication of the basis upon which any application would be made. Any response from the Defendant should be provided to the Court upon an application.
3.4 Defendant’s Response to Letter of Claim
Letter of Claim (Data Protection)
The Letter of Claim should additionally include the following information—
- any further information necessary to identify the data subject;
- the data controller to which the claim is addressed;
- the information or categories of information which is claimed to constitute personal data including, where necessary, the information which is said to constitute sensitive personal data or to fall within a special category of personal data;
- sufficient details to identify the relevant processing;
- the identification of the duty or duties which are said to have been breached and details of the manner in which they are said to have been breached, including any positive case on behalf of the Claimant;
- why the personal data ought not to be processed/further processed, if applicable;
- the nature and any available details as to any particular damage caused or likely to be caused by the processing/breach of duty complained of; and
- Where a representative data protection claim is intended to be brought on behalf of data subjects, the letter of claim should also: set out the nature of the entity which intends to bring the claim and explain how it fulfils the relevant suitability criteria – see Article 80 of the General Data Protection regulation (GDPR); include details of the data subjects on whose behalf the claim would be brought; and, confirmation that they have mandated the representative body to represent them and receive compensation, where applicable.
3.5 Letter of Claim (Harassment where the course of conduct includes publication)
The Letter of Claim should include the following—
- sufficient details about the course of conduct which is claimed to constitute harassment, including sufficient details to identify the publication(s) or proposed publication(s) forming part of the course of conduct;
- how or why the Claimant says that the course of conduct amounts to harassment, including, if relevant how or why it has caused, or is likely to cause, alarm or distress; and
- where relevant, how or why and in what amount the Claimant says that the course of conduct has caused financial loss.
3.6 Defendant’s Response to Letter of Claim
The Defendant should provide a full response to the Letter of Claim, as soon as reasonably possible. If the Defendant believes that he/she will be unable to respond within 14 days (or such shorter time limit as specified in the Letter of Claim), then he/she should specify the date by which he/she intends to respond.
3.7 The Response should include the following—
whether or to what extent the Claimant’s claim is accepted, whether more information is required or whether it is rejected;
if the claim is accepted in whole or in part, the Defendant should indicate which remedies it is willing to offer;
if more information is required, then the Defendant should specify precisely what information is needed to enable the claim to be dealt with and why;
if the claim is rejected, then the Defendant should explain the reasons why it is rejected, including a sufficient indication of any statutory exemptions or facts on which the Defendant is likely to rely in support of any substantive defence;
in a defamation or malicious falsehood claim, the defamatory or false imputation(s) the Defendant contends was conveyed by the statement complained of, if any; and
where the Claimant to a proposed action has indicated his/her intention to make an application to bring the claim anonymously, the Defendant should indicate whether the Defendant accepts such an order would be appropriate and give an indication of the basis for the Defendant’s position.
3.8 Settlement and Alternative Dispute Resolution
Court proceedings should be a last resort. The parties should consider whether some form of alternative dispute resolution (ADR) procedure might enable them to settle their dispute without commencing court proceedings, and if so, endeavour to agree which form to adopt.
Although ADR is not compulsory, the court will expect the parties to have considered ADR. A party’s refusal to engage with ADR (including its failure to respond to an invitation to participate in ADR) might be considered unreasonable by the court and could lead to the court ordering that party to pay additional costs.
3.9 Some of the options for resolving disputes without commencing proceedings are—
(a) without prejudice discussions and negotiations between the parties;
(b) mediation – a form of facilitated negotiation assisted by an independent neutral third party;;
(c) early neutral evaluation (ENE) – a third party giving an informed opinion on the dispute (for example, a lawyer experienced in the field of defamation or an individual experienced in the subject matter of the claim); and
(d) reference to a press regulator established to deal with complaints from members of the public about the editorial content of newspapers and magazines or an arbitration scheme operated by such a regulator.
3.10 CPR Part 36 (Offers to Settle) permits claimants and defendants to make offers to settle before and after proceedings have been issued. The parties should consider if it is appropriate to make a Part 36 Offer before proceedings are issued. If such an offer is made, the party making the offer must supply sufficient evidence and/or information to enable the offer to be properly considered.
The defendant may make an offer to settle a defamation action through the offers to amend procedure under sections 2 – 4 of the Defamation Act 1996. This procedure requires the defendant to make an offer to publish an apology or a redaction statement. The defendant may also be required to pay damages and costs to the claimant.
Stocktake
3.11 Where the procedure set out in this Protocol has not resolved the dispute between the parties, they should undertake a further review of their respective positions. The parties should consider the state of the papers and the evidence in order to see if proceedings can be avoided and, at the least, narrow the issues between them which can assist efficient case management.
.
3.12 Further reference
The parties may find reference to the following of particular assistance:
- CPR Part 53 and Practice Direction: Defamation Claims;
- CPR Part 25: Interim Remedies and Security for Costs;
- Master of the Rolls’ Practice Guidance: Interim Non-Disclosure Orders, August 2011 [2012] 1 WLR 1003, SEN CTS (White Book, Volume 1, B13-001 onwards);
- CPR PD48 paragraphs 3.1 and 3.2: Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 Relating to Civil Litigation Funding and Costs: Transitional Provision and Exceptions – Insolvency-related proceedings and publication and privacy proceedings; and
- 2013 CPR rule 44.15 and PD44.paragraphs 19.1-19.6: Providing information about funding arrangements (White Book, Volume 1, 44x.15, 44xPD.3); 2013 Practice Direction – Pre-Action Conduct, paragraph 9.3: Information about funding arrangements (2013 White Book Volume 1 C1-008); and, 2013 CPR rule 44.3B(1)(c): Limits on recovery under funding arrangements (White Book Volume 1, 44x.3B).
Contents of this Part
Scope of this Part and definitions
57.1
(1) This Part contains rules about –
(a) probate claims;
(b) claims for the rectification of wills;
(c) claims and applications to –
(i) substitute another person for a personal representative; or
(ii) remove a personal representative;
(d) claims under the Inheritance (Provision for Family Dependents) Act 1975(3);
(e) proceedings under the Presumption of Death Act 20131 and
(f) proceedings under the Guardianship (Missing Persons) Act 2017.
(2) In this Part:
(a) ‘probate claim‘ means a claim for –
(i) the grant of probate of the will, or letters of administration of the estate, of a deceased person;
(ii) the revocation of such a grant; or
(iii) a decree pronouncing for or against the validity of an alleged will;
not being a claim which is non-contentious (or common form) probate business;
(Section 128 of the Supreme Court Act 19812defines non-contentious (or common form) probate business.)
(b) ‘relevant office’ means –
(i) in the case of High Court proceedings in a Chancery district registry, that registry;
(ii) in the case of any other High Court proceedings, Chancery Chambers at the Royal Courts of Justice, Strand, London, WC2A 2LL; and
(iii) in the case of County Court proceedings, the office of the County Court hearing centre in question;
(c) ‘testamentary document’ means a will, a draft of a will, written instructions for a will made by or at the request of, or under the instructions of, the testator, and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed;
(d) ‘will’ includes a codicil.
To the topI PROBATE CLAIMS
General
57.2
(1) This Section contains rules about probate claims.
(2) Probate claims in the High Court are assigned to the Chancery Division.
(3) Probate claims in the County Court must only be started by sending the claim to, or making the claim at –
(a) a County Court hearing centre where there is also a Chancery district registry; or
(b) the County Court at Central London.
(4) All probate claims are allocated to the multi-track.
To the topHow to start a probate claim
57.3 A probate claim must be commenced –
(a) in the relevant office; and
(b) using the procedure in Part 7.
To the topAcknowledgment of Service and Defence
57.4
(1) A defendant who is served with a claim form must file an acknowledgment of service.
(2) Subject to paragraph (3), the period for filing an acknowledgment of service is –
(a) if the defendant is served with a claim form which states that particulars of claim are to follow, 28 days after service of the particulars of claim; and
(b) in any other case, 28 days after service of the claim form.
(3) If the claim form is served out of the jurisdiction under rule 6.32 or 6.33, the period for filing an acknowledgment of service is 14 days longer than the relevant period specified in rule 6.35 or Practice Direction 6B.
(4) Rule 15(4) (which provides the period for filing a defence) applies as if the words ‘under Part 10’ were omitted from rule 15.4(1)(b).
To the topLodging of testamentary documents and filing of evidence about testamentary documents
57.5
(1) Any testamentary document of the deceased person in the possession or control of any party must be lodged with the court.
(2) Unless the court directs otherwise, the testamentary documents must be lodged in the relevant office –
(a) by the claimant when the claim form is issued; and
(b) by a defendant when he acknowledges service.
(3) The claimant and every defendant who acknowledges service of the claim form must in written evidence –
(a) describe any testamentary document of the deceased of which he has any knowledge or, if he does not know of any such testamentary document, state that fact, and
(b) if any testamentary document of which he has knowledge is not in his possession or under his control, give the name and address of the person in whose possession or under whose control it is or, if he does not know the name or address of that person, state that fact.
(A specimen form for the written evidence about testamentary documents is annexed to Practice Direction 57.)
(4) Unless the court directs otherwise, the written evidence required by paragraph (3) must be filed in the relevant office –
(a) by the claimant, when the claim form is issued; and
(b) by a defendant when he acknowledges service.
(5) Except with the permission of the court, a party shall not be allowed to inspect the testamentary documents or written evidence lodged or filed by any other party until he himself has lodged his testamentary documents and filed his evidence.
(6) The provisions of paragraphs (2) and (4) may be modified by a practice direction under this Part.
To the topRevocation of existing grant
57.6
(1) In a probate claim which seeks the revocation of a grant of probate or letters of administration every person who is entitled, or claims to be entitled, to administer the estate under that grant must be made a party to the claim.
(2) If the claimant is the person to whom the grant was made, he must lodge the probate or letters of administration in the relevant office when the claim form is issued.
(3) If a defendant has the probate or letters of administration under his control, he must lodge it in the relevant office when he acknowledges service.
(4) Paragraphs (2) and (3) do not apply where the grant has already been lodged at the court, which in this paragraph includes the Principal Registry of the Family Division or a district probate registry.
To the topContents of statements of case
57.7
(1) The claim form must contain a statement of the nature of the interest of the claimant and of each defendant in the estate.
(2) If a party disputes another party’s interest in the estate he must state this in his statement of case and set out his reasons.
(3) Any party who contends that at the time when a will was executed the testator did not know of and approve its contents must give particulars of the facts and matters relied on.
(4) Any party who wishes to contend that –
(a) a will was not duly executed;
(b) at the time of the execution of a will the testator lacked testamentary capacity; or
(c) the execution of a will was obtained by undue influence or fraud,
must set out the contention specifically and give particulars of the facts and matters relied on.
(5)
(a) A defendant may give notice in his defence that he does not raise any positive case, but insists on the will being proved in solemn form and, for that purpose, will cross-examine the witnesses who attested the will.
(b) If a defendant gives such a notice, the court will not make an order for costs against him unless it considers that there was no reasonable ground for opposing the will.
To the topCounterclaim
57.8
(1) A defendant who contends that he has any claim or is entitled to any remedy relating to the grant of probate of the will, or letters of administration of the estate, of the deceased person must serve a counterclaim making that contention.
(2) If the claimant fails to serve particulars of claim within the time allowed, the defendant may, with the permission of the court, serve a counterclaim and the probate claim shall then proceed as if the counterclaim were the particulars of claim.
To the topProbate counterclaim in other proceedings
57.9
(1) In this rule ‘probate counterclaim’ means a counterclaim in any claim other than a probate claim by which the defendant claims any such remedy as is mentioned in rule 57.1(2)(a).
(2 Subject to the following paragraphs of this rule, this Part shall apply with the necessary modifications to a probate counterclaim as it applies to a probate claim.
(3) A probate counterclaim must contain a statement of the nature of the interest of each of the parties in the estate of the deceased to which the probate counterclaim relates.
(4) Unless an application notice is issued within 7 days after the service of a probate counterclaim for an order under rule 3.1(2)(e) or 3.4 for the probate counterclaim to be dealt with in separate proceedings or to be struck out, and the application is granted, the court will order the transfer of the proceedings to either –
(a) the Chancery Division (if it is not already assigned to that Division) and to either the Royal Courts of Justice or a Chancery district registry (if it is not already proceeding in one of those places); or
(b) if the County Court has jurisdiction, to a County Court hearing centre where there is also a Chancery District Registry or the County Court at Central London.
(5) If an order is made that a probate counterclaim be dealt with in separate proceedings, the order shall order the transfer of the probate counterclaim as required under paragraph (4).
To the topFailure to acknowledge service or to file a defence
57.10
(1) A default judgment cannot be obtained in a probate claim and rule 10.2 and Part 12 do not apply.
(2) If any of several defendants fails to acknowledge service the claimant may –
(a) after the time for acknowledging service has expired; and
(b) upon filing written evidence of service of the claim form and (if no particulars of claim were contained in or served with the claim form) the particulars of claim on that defendant;
proceed with the probate claim as if that defendant had acknowledged service.
(3) If no defendant acknowledges service or files a defence then, unless on the application of the claimant the court orders the claim to be discontinued, the claimant may, after the time for acknowledging service or for filing a defence (as the case may be) has expired, apply to the court for an order that the claim is to proceed to trial.
(4) When making an application under paragraph (3) the claimant must file written evidence of service of the claim form and (if no particulars of claim were contained in or served with the claim form) the particulars of claim on each of the defendants.
(5) Where the court makes an order under paragraph (3), it may direct that the claim be tried on written evidence.
To the topDiscontinuance and dismissal
57.11
(1) Part 38 does not apply to probate claims.
(2) At any stage of a probate claim the court, on the application of the claimant or of any defendant who has acknowledged service, may order that –
(a) the claim be discontinued or dismissed on such terms as to costs or otherwise as it thinks just; and
(b) a grant of probate of the will, or letters of administration of the estate, of the deceased person be made to the person entitled to the grant.
To the topII RECTIFICATION OF WILLS
Rectification of Wills
57.12
(1) This Section contains rules about claims for the rectification of a will.
(Section 20 of the Administration of Justice Act 19823provides for rectification of a will. Additional provisions are contained in rule 55 of the Non-Contentious Probate Rules 19874.)
(2) Every personal representative of the estate shall be joined as a party.
(3) Practice Direction 57 makes provision for lodging the grant of probate or letters of administration with the will annexed in a claim under this Section.
To the topIII SUBSTITUTION AND REMOVAL OF PERSONAL REPRESENTATIVES
Substitution and Removal of Personal Representatives
57.13
(1) This Section contains rules about claims and applications for substitution or removal of a personal representative.
(2) Claims under this Section must be brought in the High Court and are assigned to the Chancery Division.
(Section 50 of the Administration of Justice Act 19855 gives the High Court power to appoint a substitute for, or to remove, a personal representative.)
(3) Every personal representative of the estate shall be joined as a party.
(4) Practice Direction 57 makes provision for lodging the grant of probate or letters of administration in a claim under this Section.
(5) If substitution or removal of a personal representative is sought by application in existing proceedings, this rule shall apply with references to claims being read as if they referred to applications.
To the topIV CLAIMS UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975
Scope of this section
57.14 This Section contains rules about claims under the Inheritance (Provision for Family and Dependants) Act 19756 (‘the Act’).
To the topProceedings in the High Court
57.15
(1) Proceedings in the High Court under the Act shall be issued in either –
(a) the Chancery Division; or
(b) the Family Division.
(2) The Civil Procedure Rules apply to proceedings under the Act which are brought in the Family Division, except that the provisions of the Family Proceedings Rules 20107relating to the drawing up and service of orders apply instead of the provisions in Part 40 and Practice Direction 40B.
To the topProcedure for claims under section 1 of the Act
57.16
(1) A claim under section 1 of the Act must be made by issuing a claim form in accordance with Part 8.
(2) Rule 8.3 (acknowledgment of service) and rule 8.5 (filing and serving written evidence) apply as modified by paragraphs (3) to (5) of this rule.
(3) The written evidence filed and served by the claimant with the claim form must, except in the circumstances specified in paragraph (3A), have exhibited to it an official copy of –
(a) the grant of probate or letters of administration in respect of the deceased’s estate; and
(b) every testamentary document in respect of which probate or letters of administration were granted.
(3A) Where no grant has been obtained, the claimant may make a claim without naming a defendant and may apply for directions as to the representation of the estate. The written evidence must—
(a) explain the reasons why it has not been possible for a grant to be obtained;
(b) be accompanied by the original or a copy (if either is available) of the will or other testamentary document in respect of which probate or letters of administration are to be granted; and
(c) contain the following information, so far as known to the claimant—
(i) brief details of the property comprised in the estate, with an approximate estimate of its capital value and any income that is received from it;
(ii) brief details of the liabilities of the estate;
(iii) the names and addresses of the persons who are in possession of the documents relating to the estate; and
(iv) the names of the beneficiaries and their respective interests in the estate.
(3B) Where a claim is made in accordance with paragraph (3A), the court may give directions as to the parties to the claim and as to the representation of the estate either on the claimant’s application or on its own initiative.
(Section 4 of the 1975 Act as amended confirms that nothing prevents the making of an application under the Act before representation with respect to the estate of the deceased person is taken out.)
(4) Subject to paragraph (4A), the time within which a defendant must file and serve –
(a) an acknowledgment of service; and
(b) any written evidence,
is not more than 21 days after service of the claim form on him.
(4A) If the claim form is served out of the jurisdiction under rule 6.32 or 6.33, the period for filing an acknowledgment of service and any written evidence is 7 days longer than the relevant period specified in rule 6.35 or Practice Direction 6B.
(5) A defendant who is a personal representative of the deceased must file and serve written evidence, which must include the information required by Practice Direction 57.
To the topV PROCEEDINGS UNDER THE PRESUMPTION OF DEATH ACT 2013
Scope and interpretation
57.17
(1) This Section contains rules about proceedings under the Presumption of Death Act 2013.
(2) In this Section, terms used in the Presumption of Death Act 2013 Act have the meaning given by that Act, and—
(a) ‘the 2013 Act’ means the Presumption of Death Act 2013;
(b) ‘a claim for a declaration of presumed death’ means a claim under section 1 of the 2013 Act for a declaration that a missing person is presumed to be dead;
(c) ‘a claim for a variation order’ means a claim for an order under section 5 of the 2013 Act varying or revoking a declaration of presumed death.
To the topProceedings to be in the High Court
57.18
(1) Proceedings under the 2013 Act must be issued in the High Court in either—
(a) the Chancery Division; or
(b) the Family Division.
(2) The Civil Procedure Rules apply to proceedings under the 2013 Act which are brought in the Family Division, except that the provisions of the Family Procedure Rules 2010(a) relating to the drawing up and service of orders apply instead of the provisions in Part 40 and Practice Direction 40B.
To the topProcedure for claims for a declaration of presumed death or a variation order
57.19
(1) A claim for a declaration of presumed death or for a variation order must be made by issuing a claim form in accordance with Part 8.
(2) In addition to the matters set out in rule 8.2 (contents of the claim form), the claim form must also include or be accompanied by the information required by Practice Direction 57B.
(3) Rules 8.2A, 8.3, 8.4 and 8.5 apply as modified by paragraphs (4) to (7) of this rule (and references elsewhere in these Rules to a defendant and to an acknowledgment of service are, where relevant, to be read as references to the substitute terms in rules 8.2A, 8.3, 8.4 and 8.5 as so modified).
(4) Rule 8.2A (issue of claim form without naming defendants) applies as if for ‘without naming a defendant’ in paragraph (1) there were substituted ‘without serving notice on any person’.
(5) Rule 8.3 (acknowledgment of service) applies—
(a) as if, instead of referring to a defendant, it referred to a person giving notice of intention to intervene or applying for permission to intervene, as the case may be;
(b) as if, instead of referring to an acknowledgment of service, it referred to a notice of intention to intervene or an application for permission to intervene, as the case may be; and
(c) subject to paragraph (7), with the substitution of 21 days for 14 days as the time within which the notice of intention to intervene or application for permission to intervene must be filed and served.
(6) Rules 8.4 (consequence of not filing an acknowledgment of service) and 8.5 (filing and serving written evidence) apply—
(a) as if, instead of referring to a defendant, they referred to a person giving notice of intention to intervene or applying for permission to intervene, as the case may be; and
(b) as if, instead of referring to an acknowledgment of service, they referred to a notice of intention to intervene or an application for permission to intervene, as the case may be.
(7) If the claim form is served out of the jurisdiction under rule 6.32 or 6.33, the period for filing notice of intention to intervene or an application for permission to intervene, as the case may be, and any written evidence, is 7 days longer than the relevant period for serving an acknowledgement of service specified in rule 6.35 or Practice Direction 6B.
To the topGiving notice of claim
57.20
(1) Where the claim is for a declaration of presumed death, the claimant must give notice of the claim by serving a copy of it on the following persons (where not the claimant)—
(a) the spouse or civil partner of the missing person;
(b) any parent of the missing person;
(c) any child of the missing person;
(d) any sibling of the missing person;
(e) if there are no persons within sub-paragraphs (a) to (d), the nearest relative of the missing person known to the claimant; and
(f) any other person (including in particular any insurance company) appearing to the claimant to have an interest in the claim.
(2) Where the claim is for a variation order, the claimant must give notice of the claim by serving a copy of it on the following persons (where not the claimant)—
(a) the person who was the claimant for the declaration of presumed death or (as the case may be) previous variation order which it is sought to have varied or revoked;
(b) the spouse or civil partner of the missing person;
(c) any parent of the missing person;
(d) any child of the missing person;
(e) any sibling of the missing person;
(f) if there are no persons within sub-paragraphs (b) to (e), the nearest relative of the missing person known to the claimant; and
(g) any other person (including in particular any insurance company) appearing to the claimant to have an interest in the claim.
(3) Notice under paragraph (1)(a) to (f) or paragraph (2)(a) to (g) must be given within 7 days after the claim is issued.
To the topAdvertisement of claim
57.21
(1) The claimant (whether the claim is for a declaration of presumed death or for a variation order) must, within 7 days of issue of the claim, ensure that notice of the claim is published—
(a) in a form which meets the requirements set out in Practice Direction 57B; and
(b) in at least one newspaper circulating in the vicinity of the last known address of the missing person.
(2) The claimant must, at least 5 days before the hearing, file a copy of the page of the newspaper bearing the advertisement of notice of the claim required by paragraph (1) and the date on which it was published.
To the topInterveners
57.22
(1) The Attorney General, or a person who is entitled to intervene in proceedings under section 11(1), must first notify the court of the intention to intervene in accordance with the requirements of Practice Direction 57B.
(2) Any other person who wishes to intervene in such proceedings must submit an application for permission to intervene in accordance with the requirements of Practice Direction 57B.
(3) Where the court grants permission to intervene, it may do so on conditions and may give case management directions.
(4) The court may direct that a person who intervenes in proceedings, other than the Attorney General, be joined as a claimant or defendant.
To the topRequirement to provide information
57.23
(1) An application for an order under section 12(1) of the 2013 Act must be supported by evidence and must in particular—
(a) specify or describe the information in respect of which the order is sought;
(b) set out the reasons why the person making the application believes that the person against whom the order is sought is likely to have such information; and
(c) include any further details, where known, of the missing person which are likely to assist in providing the information sought.
(2) The person making the application must serve a copy of the application notice on the person against whom the order is sought, and on every other party to the proceedings (within the meaning of section 20(2) of the 2013 Act), at least 14 days before the date fixed for the hearing of the application.
(3) An application for discharge or variation under section 12(6) of an order made under section 12(1) may be made without notice unless the court directs otherwise.
Requirement to send copy of declaration to the Public Guardian
57.24
Where a declaration of presumed death made under the 2013 Act satisfies section 3(3)(a) or (b) of that Act, the court must send a copy of the declaration to the Public
Guardian.
SECTION VI PROCEEDINGS UNDER THE GUARDIANSHIP (MISSING PERSONS) ACT 2017
Scope and interpretation
57.25
(1) This Section contains rules about proceedings under the Guardianship
(Missing Persons) Act 2017.
(2) In this Section, terms used in the Guardianship (Missing Persons) Act 2017 have the
meaning given by that Act, and—
(a) “the 2017 Act” means the Guardianship (Missing Persons) Act 2017;
(b) “the missing person” means the person who is or has been asserted to be “missing”
within the meaning of the 2017 Act;
(c) “a claim for a guardianship order” means an application under section 2 (applying
for a guardianship order) of the 2017 Act for a guardianship order;
(d) “an application for a revocation/variation order” means—
(i) an application under section 12 (variation of a guardianship order) of the 2017
Act for an order varying a guardianship order; or
(ii) an application under section 13 (revocation of a guardianship order) of the
2017 Act for an order revoking a guardianship order;
(e) “an application relating to a guardianship order” means any application which
relates to the exercise of functions of a guardian but which is not a claim for a
guardianship order or an application for a revocation/variation of a guardianship
order;
(f) “an intervener” means either a person who falls within section 21(1) of the 2017
Act and who has given notice of intention to intervene, or a person to whom the
court has given permission to intervene.
Proceedings to be in the High Court
57.26
(1) Proceedings under the 2017 Act must be issued in the High Court in either—
(a) the Chancery Division; or
(b) the Family Division.
(2) The Civil Procedure Rules apply to proceedings under the 2017 Act which are
brought in the Family Division, except that in the Family Division the provisions of Part 29
of the Family Procedure Rules 2010(a) relating to the drawing up and service of orders
shall apply instead of the provisions in the Civil Procedure Rules Part 40 and Practice
Direction 40B.
Procedure for making claims for a guardianship order
57.27
(1) A claim for a guardianship order must be made by issuing a claim form in
accordance with Part 8.
(2) Following issue, the court shall fix a date for the first hearing of the claim and which
shall, unless the court otherwise orders, be not less than 56 days from the date of issue; but
any person may apply for the claim or an application to be heard at an earlier date.
(3) In addition to the matters set out in rule 8.2 (contents of the claim form), the claim
form must also include the information required by paragraph 1.1 of Practice Direction 57C
and be accompanied by a witness statement containing the information required by
paragraph 1.2 and, where appropriate, paragraph 1.3 of Practice Direction 57C.
(4) The claim form must name the missing person as the defendant but—
(a) the claimant need take no steps to serve the claim form upon the missing person
unless the court orders otherwise;
(b) the court shall consider at the first hearing what, if any, directions to make
regarding service or dispensing with service of the claim form upon the missing
person;
(c) Rules 6.9, 6.15, 6.16 and 7.5 (rules as to service of the claim form) shall not apply.
(5) Rules 8.3, 8.4 and 8.5 (rules relating to part 8 claims) shall not apply.
(Rule 57.29 sets out further steps that a claimant must take.)
Procedure for making applications for revocation/variation of guardianship orders and applications relating to guardianship orders
57.28
(1) An application for a revocation/variation order and an application relating to
a guardianship order must be made in accordance with Part 23 as modified by this rule and
by paragraph 2 of Practice Direction 57C.
(2) In addition to the matters set out in rule 23.6 (what an application notice must
include), the application notice must also include, or be accompanied by, a witness
statement which contains the information required by paragraph 2 of Practice Direction 57C
in relation to that type of application.
(3) Following issue, the court shall fix a date for the first hearing of the application which
shall, unless the court otherwise orders, be not less than 56 days from the date of issue; but
any person may apply for the application to be heard at an earlier date.
(4) The applicant need take no steps to serve the application or any order upon the
missing person unless the court orders otherwise.
(5) Rules 23.9 and 23.11 apply as modified by paragraphs (6) and (7).
(6) Rule 23.9(2) (service of application where application made without notice) applies as
if it did not refer to the missing person as defendant, but did refer also to any interveners.
(7) Rule 23.11 (power of court to proceed in the absence of a party) applies as if the
words “or any intervener” were inserted after both references to “any respondent”.
(Rules 57.29 and 57.30 set out further steps that applicants must take.)
Giving notice and advertisement of claim for a guardianship order or an application for a revocation/variation order
57.29
(1) The claimant or applicant must, within 14 days of notification of the date of
the first hearing of the claim for a guardianship order or of an application for a
revocation/variation order—
(a) send notice of the claim or application to those of the following persons whose
identity and current residential or e-mail address or nominated address for service
are known to the claimant or applicant—
(i) the spouse or civil partner of the missing person;
(ii) any parent of the missing person;
(iii) any child of the missing person;
(iv) any sibling of the missing person;
(v) if there are no persons within paragraphs (i) to (iv), the nearest relative of the
missing person known to the claimant or applicant;
(vi) any guardian or any former guardian of the missing person;
(vii) any person who has previously intervened in and/or become a party to these or
any proceedings in which a guardianship order was sought in relation to the
missing person,
by sending (subject to any redaction ordered by the court, and subject to paragraph
(2)) the material set out in paragraph 3.1 of Practice Direction 57C to the relevant
addresses; and
(b) advertise notice of the claim or application—
(i) in a form which meets the requirements set out in paragraph 4.1 of Practice
Direction 57C;
(ii) in at least one public news media circulating in or relating to the vicinity of
the last known usual place of residence of the missing person;
being “Advertisement of the claim/application”.
(2) If the person has a nominated address for service known to the claimant or applicant,
and provided that such address for service has been nominated expressly for the purpose of
2017 Act proceedings, the material need only be sent to that address; and, if the claimant or
applicant has no access to any, or no, e-mail address of their own, they need not send the
material to any e-mail address.
(3) The claimant or applicant must file at court no later than 7 days before the first
hearing of the claim or application, a witness statement—
(a) confirming compliance with paragraph (1)(a), and attaching Form N215
(Certificate of Service) completed to describe each method of sending to each
person, as if references on that form to “service” were to “sending”; and
(b) confirming compliance with paragraph (1)(b), and containing or attaching evidence
of Advertisement of the claim/application, including details of how, where and
when it was advertised.
Giving notice and advertisement of applications relating to guardianship orders or the potential exercise of powers under the 2017 Act
57.30
(1) Unless the court dispenses with the need for notice, notice of an application
relating to a guardianship order must be sent to those of the following persons whose
identity and current residential or e-mail address or nominated address for service are
known to the applicant—
(a) the spouse or civil partner of the missing person;
(b) any parent of the missing person;
(c) any child of the missing person;
(d) any sibling of the missing person;
(e) if there are no persons within sub-paragraphs (a) to (d), the nearest relative of the
missing person known to the applicant;
(f) any guardian or any former guardian of the missing person;
(g) any person who has previously intervened in and/or become a party to these or any
proceedings in which a guardianship order was sought in relation to the missing
person,
by sending (subject to any redaction ordered by the court, and subject to paragraph (2)) the
material set out in paragraph 3.1 of Practice Direction 57C to the relevant addresses within
14 days after the court has notified the date for the hearing of the application.
(2) If the person has a nominated address for service known to the applicant, and
provided that such address for service has been nominated expressly for the purpose of
2017 Act proceedings, the material need only be sent to that address; and, if the applicant
has no access to any, or no, e-mail address of their own, they need not send the material to
any e-mail address.
(3) The applicant must file at court no later than 7 days before the first hearing of the
application, a witness statement confirming compliance with paragraph (1) above and
attaching Form N215 (Certificate of Service) completed to describe each method of sending
to each person as if references on that form to “service” were to “sending”.
(4) The court may make—
(a) a direction for advertisement of the application; and
(b) any further provision for notification or service of the application.
(5) If the court is considering whether to exercise a power under the 2017 Act without an
application having been made, the court may require—
(i) notice of the matter to be given (in such manner the court may direct) to any
of the persons listed in paragraph (1), or to any other person; and
(ii) the matter to be advertised in such manner as the court may direct.
Interveners
57.31
(1) A person who is entitled under section 21(1) (right to intervene) of the 2017
Act to intervene in a claim for a guardianship order, an application for a
revocation/variation order, or an application relating to a guardianship order should, not less
than 14 days before the first hearing date of the claim or application, notify the court and
the claimant/applicant of any intention to intervene in accordance with the requirements of
paragraph 5.1 of Practice Direction 57C.
(2) On receipt of a notice under paragraph (1) the court may give case management
directions.
(3) Failure to comply with paragraph (1) shall not prevent the person from intervening (if
they are otherwise entitled to do so) but may be taken into account on any question relating
to costs.
(4) Any other person who wishes to intervene in such proceedings must, not less than 14
days before the first hearing date of the claim or application, file with the court and serve on
the claimant/applicant an application for permission to intervene in accordance with Part 23
and paragraph 5.2 of Practice Direction 57C.
(5) Within 7 days of receiving an application for permission to intervene—
(a) from a person who has not been sent or served with the claim form or the
application notice, the claimant/applicant must serve a copy of the claim form or
application, the evidence in support and notice of the hearing date, upon the person
seeking permission to intervene; and in any case
(b) the claimant or applicant must file with the court and serve upon the person
seeking permission to intervene, a statement of whether or not they object and any
evidence in support of any objection.
(6) Where the court grants permission to intervene to a person who otherwise has no
entitlement to intervene under section 21(1) (right to intervene) of the 2017 Act, it may do
so on conditions and may give case management directions.
(7) The court may direct that a person who intervenes in proceedings be added as a
claimant (provided that they consent in writing) or defendant to the claim.
Requirement to send copy of all orders made to the Public Guardian
57.32
Where the court makes a guardianship order, a revocation/variation order, an order
relating to the functions of a guardian, or an order granting or refusing permission to
intervene, it shall send a copy of such order to the Public Guardian.
Death of the missing person
57.33
(1) If the missing person has died before or dies after the issue of the claim then,
subject to any order of the court, the claim shall not abate or be stayed, and rule 19.12 shall
not apply.
(2) If the claimant considers that there is real doubt as to whether the missing person is
still alive, the claim form may incorporate claims under both the Presumption of Death Act
2013 (“the 2013 Act”) and the 2017 Act.
(3) If the court determines at any point in the claim that the missing person has not been
known to be alive for a period of seven years whether before or after the issue of the claim,
the court may order that the claim should continue as if it had been brought under the 2013
Act.
(4) The court may make an order under or in relation to paragraphs (2) and (3) on such
terms and conditions and with such consequential provisions as it considers appropriate.
Footnotes
- 2013 c. 13. Back to text
- 1981 c.54. Back to text
- 1982 c.53. Back to text
- S.I. 1987/2024 as amended by S.I. 1991/1876, S.I. 1998/1903 and 1999/1015. Back to text
- 1985 c.61. Back to text
- 1975 c.63. Back to text
- The relevant parts of the FPR 2010 for the purpose of this section are r 29.11-29.14. Back to text
Part 13 PROCEEDINGS UNDER SECTION 54 OR SECTION 54A OF THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 2008
Contents of this Part
Interpretation and application
13.1
(1) A reference in this Part to the 2002 Act is a reference to that Act as applied with modifications by the Human Fertilisation and Embryology (Parental Order) Regulations 2018.
(1A) Where an application is made under section 54A of the 2008 Act, a reference in this Part to ‘applicants’ is a reference to the sole applicant.
(2) In this Part –
‘the other parent’ means any person who is a parent of the child but is not one of the applicants or the woman who carried the child (including any man who is the father by virtue of section 35 or 36 of the 2008 Act or any woman who is a parent by virtue of section 42 or 43 of that Act);
‘parental order”’ means an order under section 54 or section 54A of the 2008 Act;
‘parental order proceedings’ means proceedings for the making of a parental order under the 2008 Act or an order under any provision of the 2002 Act;
‘parental order reporter’ means an officer of the service or a Welsh family proceedings officer appointed to act on behalf of a child who is the subject of parental order proceedings;
‘provision for contact’ means–
(i) contact provision contained in a child arrangements order under section 8 of the 1989 Act, or
(ii) an order under section 34 of the 1989 Act;
‘contact provision’ has the meaning given to it in section 26(5A) of the 2002 Act;
(3) Except where the contrary intention appears, the rules in this Part apply to parental order proceedings.
Application of Part 12
13.2
Rules apply as appropriate, with any necessary modifications, to parental order proceedings.
Who the parties are
13.3
(1) An application for a parental order under section 54 of the 2008 Act may be made by such of the following who satisfy the conditions set out in section 54(1) of the 2008 Act –
(b) civil partners of each other; or
(c) two persons who are living as partners in an enduring family relationship and are not within the prohibited degrees of relationship in relation to each other.
(1A) An application for a parental order under section 54A of the 2008 may only be made by one person who satisfied the conditions set out in subsection (1) of that section.
(2) The respondents to an application for a parental order are –
(a) the woman who carried the child;
(b) the other parent (if any);
(c) any person in whose favour there is provision for contact; and
(d) any other person or body with parental responsibility for the child at the date of the application.
(3) The court will direct that a person with parental responsibility for the child be made a party to proceedings where that person requests to be one.
(4) The court may at any time direct that –
(a) any other person or body be made a respondent to the proceedings; or
(b) a respondent be removed from the proceedings.
(5) If the court makes a direction for the addition or removal of a party, it may give consequential directions about –
(a) serving a copy of the application form on any new respondent;
(b) serving relevant documents on the new party; and
(c) the management of the proceedings.
Notice of proceedings to person with foreign parental responsibility
13.4
(1) This rule applies where a child is subject to proceedings to which this Part applies and at the date of the application –
(a) a person holds or is believed to hold parental responsibility for the child under the law of another State which subsists in accordance with Article 16 of the 1996 Hague Convention following the child becoming habitually resident in a territorial unit of the United Kingdom; and
(b) that person is not otherwise required to be joined as a respondent under rule 13.3.
(2) The applicant shall give notice of the proceedings to any person to whom the applicant believes paragraph (1) applies.
(3) The applicant and every respondent to the proceedings shall provide such details as they possess as to the identity and whereabouts of any person they believe to hold parental responsibility for the child in accordance with paragraph (1) to the court officer, upon making, or responding to the application as appropriate.
(4) Where the existence of such a person only becomes apparent to a party at a later date during the proceedings, that party must notify the court officer of those details at the earliest opportunity.
(5) Where a person to whom paragraph (1) applies receives notice of proceedings, that person may apply to the court to be joined as a party using the Part 18 procedure.
What the court or a court officer will do when the application has been issued
13.5
(1) As soon as practicable after the issue of proceedings –
(i) if section 48(1) of the 2002 Act applies (restrictions on making parental orders), consider whether it is proper to hear the application;
(ii) subject to paragraph (2), set a date for the first directions hearing;
(iii) appoint a parental order reporter; and
(iv) set a date for the hearing of the application; and
(i) return to the applicants the copies of the application together with any other documents the applicant is required to serve; and
(ii) send a certified copy of the entry in the register of live births to the parental order reporter.
(2) Where it considers it appropriate the court may, instead of setting a date for a first directions appointment, give the directions provided for in rule 13.9.
Service of the application and other documents
13.6
(1) The applicants must, within 14 days before the hearing or first directions hearing, serve on the respondents –
(b) a form for acknowledging service; and
(2) The applicants must serve a notice of proceedings on any local authority or voluntary organisation that has at any time provided accommodation for the child.
Acknowledgement
13.7
Within 7 days of the service of an application for a parental order, each respondent must file an acknowledgment of service and serve it on all the other parties.
Date for first directions hearing
13.8
Unless the court directs otherwise, the first directions hearing must be within 4 weeks beginning with the date on which the application is issued.
The first directions hearing
13.9
(1) At the first directions hearing in the proceedings the court will –
(a) fix a timetable for the filing of –
(i) any report from a parental order reporter;
(ii) if a statement of facts has been filed, any amended statement of facts; and
(b) give directions relating to the report of the parental order reporter and other evidence;
(c) consider whether any other person should be a party to the proceedings and, if so, give directions in accordance with rule 13.3(3) or (4) joining that person as a party;
(d) give directions relating to the appointment of a litigation friend for any protected party unless a litigation friend has already been appointed;
(e) consider, in accordance with rule 29.17, whether the case needs to be transferred to another court and, if so, give appropriate directions;
(i) tracing the other parent or the woman who carried the child;
(iii) subject to paragraph (2), disclosure as soon as possible of information and evidence to the parties; and
(2) Rule 13.12 (reports of the parental order reporter and disclosure to parties) applies to any direction given under paragraph (1)(f)(iii) as it applies to a direction given under rule 13.12(1).
(3) The parties or their legal representatives must attend the first directions hearing unless the court directs otherwise.
(4) Directions may also be given at any stage in the proceedings –
(a) of the court’s own initiative; or
(b) on the application of a party or the parental order reporter.
(5) Where the court proposes to exercise its powers in paragraph (1) of its own initiative the procedure set out in rule 4.3(2) to (7) applies.
(6) For the purposes of giving directions or for such purposes as the court directs –
(a) the court may set a date for a further directions hearing or other hearing; and
(b) the court officer will give notice of any date so fixed to the parties and to the parental order reporter.
(7) Directions of a court which are still in force immediately prior to the transfer of proceedings to another court shall continue to apply following the transfer subject to –
(a) any changes of terminology which are required to apply those directions to the court to which the proceedings are transferred; and
(b) any variation or revocation of the direction.
(8) The court or court officer will –
(a) take a note of the giving, variation or revocation of a direction under this rule; and
(b) as soon as practicable serve a copy of the note on every party.
(9) After the first directions hearing the court will monitor compliance by the parties with the court’s timetable and directions.
Where the agreement of the other parent or the woman who carried the child is not required
13.10
(1) This rule applies where the agreement of the other parent or the woman who carried the child to the making of the parental order is not required as the person in question cannot be found or is incapable of giving agreement.
(a) state that the agreement is not required in the application form, or at any later stage by filing a written note with the court;
(b) file a statement of facts setting out a summary of the history of the case and any other facts to satisfy the court that the other parent or the woman who carried the child cannot be found or is incapable of giving agreement.
(3) On receipt of the application form or written note –
(i) unless the other parent or the woman who carried the child cannot be found, inform the other parent or the woman who carried the child that their agreement is not required;
(ii) send a copy of the statement of facts filed in accordance with paragraph (2)(b) to –
(aa) the other parent unless the other parent cannot be found;
(bb) the woman who carried the child unless the woman cannot be found; and
(cc) the parental order reporter; and
(b) if the applicants consider that the other parent or the woman who carried the child is incapable of giving agreement the court will consider whether to –
(i) appoint a litigation friend for the other parent or the woman who carried the child under rule 15.6(1) or
(ii) give directions for an application to be made under rule 15.6(3),
unless a litigation friend is already appointed for the other parent or the woman who carried the child.
Agreement
13.11
(1) Unless the court directs otherwise, the agreement of the other parent or the woman who carried the child to the making of the parental order may be given in the form referred to in Practice Direction 5A or a form to the like effect.
(2) Any form of agreement executed in Scotland must be witnessed by a Justice of the Peace or a Sheriff.
(3) Any form of agreement executed in Northern Ireland must be witnessed by a Justice of the Peace.
(4) Any form of agreement executed outside the United Kingdom must be witnessed by –
(a) any person for the time being authorised by law in the place where the document is executed to administer an oath for any judicial or other legal purpose;
(b) a British Consular officer;
(d) if the person executing the document is serving in any of the regular armed forces of the Crown, an officer holding a commission in any of those forces.
Reports of the parental order reporter and disclosure to the parties
13.12
(1) The court will consider whether to give a direction that a confidential report of the parental order reporter be disclosed to each party to the proceedings.
(2) Before giving such a direction the court will consider whether any information should be deleted including information which discloses the particulars referred to in rule 29.1(1) where a party has given notice under rule 29.1(2) (disclosure of personal details).
(3) The court may direct that the report shall not be disclosed to a party.
Notice of final hearing
13.13
A court officer will give notice to the parties and to the parental order reporter –
(a) of the date and place where the application will be heard; and
(b) of the fact that, unless the person wishes or the court requires, the person need not attend.
The final hearing
13.14
(1) Any person who has been given notice in accordance with rule 13.13 may attend the final hearing and be heard on the question of whether an order should be made.
(2) The court may direct that any person must attend a final hearing.
Proof of identity of the child
13.15
(1) Unless the contrary is shown, the child referred to in the application will be deemed to be the child referred to in the form of agreement to the making of the parental order where the conditions in paragraph (2) apply.
(a) the application identifies the child by reference to a full certified copy of an entry in the registers of live-births;
(b) the form of agreement identifies the child by reference to a full certified copy of an entry in the registers of live-births attached to the form; and
(c) the copy of the entry in the registers of live-births referred to in sub-paragraph (a) is the same or relates to the same entry in the registers of live-births as the copy of the entry in the registers of live-births attached to the form of agreement.
(3) Where the precise date of the child’s birth is not proved to the satisfaction of the court, the court will determine the probable date of birth.
(4) The probable date of the child’s birth may be specified in the parental order as the date of the child’s birth.
(5) Where the child’s place of birth cannot be proved to the satisfaction of the court –
(a) the child may be treated as having been born in the registration district and sub-district in which the court is sitting where it is probable that the child may have been born in –
(b) in any other case, the particulars of the country of birth may be omitted from the parental order.
Disclosing information to an adult who was subject to a parental order
13.16
(1) Subject to paragraph (2), the person who is subject to the parental order has the right to receive from the court which made the parental order a copy of the following –
(a) the application form for a parental order (but not the documents attached to that form);
(b) the parental order and any other orders relating to the parental order proceedings;
(c) a transcript of the court’s decision; and
(d) a report made to the court by the parental order reporter.
(2) The court will not provide a copy of a document or order referred to in paragraph (1) unless the person making the request has completed the certificate relating to counselling in the form for that purpose referred to in Practice Direction 5A.
(3) This rule does not apply to a person under the age of 18 years.
Application for recovery orders
13.17
(1) An application for any of the orders referred to in section 41(2) of the 2002 Act (recovery orders) may be made without notice, in which case the applicant must file the application –
(a) where the application is made by telephone, the next business day after the making of the application; or
(b) in any other case, at the time when the application is made.
(2) Where the court refuses to make an order on an application without notice it may direct that the application is made on notice in which case the application shall proceed in accordance with rules 13.1 to 13.14.
(3) The respondents to an application under this rule are –
(a) in a case where parental order proceedings are pending, all parties to those proceedings;
(b) any person having parental responsibility for the child;
(c) any person in whose favour there is provision for contact;
(d) any person who was caring for the child immediately prior to the making of the application; and
(e) any person whom the applicant alleges to have effected, or to have been or to be responsible for, the taking or keeping of the child.
Keeping of registers, custody, inspection and disclosure of documents and information
13.18
(1) Omitted
(2) All documents relating to parental order proceedings and related proceedings under the 2002 Act must, while they are in the custody of the court, be kept in a place of special security.
(3) Any person who obtains any information in the course of, or relating to, parental order proceedings must treat that information as confidential and must only disclose it if –
(a) the disclosure is necessary for the proper exercise of that person’s duties; or
(b) the information is requested by –
(i) a court or public authority (whether in Great Britain or not) having power to determine parental order proceedings and related matters, for the purpose of that court or authority discharging its duties relating to those proceedings and matters; or
(ii) a person who is authorised in writing by the Secretary of State to obtain the information for the purposes of research.
Documents held by the court not to be inspected or copied without the court’s permission
13.19
Subject to the provisions of these rules, any practice direction or any direction given by the court –
(a) no document or order held by the court in parental order proceedings and related proceedings under the 2002 Act will be open to inspection by any person; and
(b) no copy of any such document or order, or of an extract from any such document or order, shall be taken by or given to any person.
Orders
13.20
(1) A parental order takes effect from the date when it is made, or such later date as the court may specify.
(2) In proceedings in Wales a party may request that an order be drawn up in Welsh as well as English.
Copies of orders
13.21
(1) Within 7 days beginning with the date on which the final order was made in proceedings, or such shorter time as the court may direct, a court officer will send –
(a) a copy of the order to the applicant;
(b) a copy, which is sealed(GL), authenticated with the stamp of the court or certified as a true copy of a parental order, to the Registrar General;
(c) a notice of the making or refusal of-
(ii) an order quashing or revoking a parental order or allowing an appeal against an order in proceedings,
to every respondent and, with the permission of the court, any other person.
(2) The court officer will also send notice of the making of a parental order to –
(a) any court in Great Britain which appears to the court officer to have made any such order as is referred to in section 46(2) of the 2002 Act (order relating to parental responsibility for, and maintenance of, the child); and
(b) the principal registry, if it appears to the court officer that a parental responsibility agreement has been recorded at the principal registry.
(3) A copy of any final order may be sent to any other person with the permission of the court.
(4) The court officer will send a copy of any order made during the course of the proceedings to all the parties to those proceedings unless the court directs otherwise.
(5) If an order has been drawn up in Welsh as well as in English in accordance with rule 13.20(2), any reference in this rule to sending an order is to be taken as a reference to sending both the Welsh and English orders.
Amendment and revocation of orders
13.22
(1) This rule applies to an application under paragraph 4 of Schedule 1 to the 2002 Act (amendment of a parental order and revocation of direction).
(2) Omitted
(3) Subject to paragraph (4), an application may be made without serving a copy of the application notice.
(4) The court may direct that an application notice be served on such persons as it thinks fit.
(5) Where the court makes an order granting the application, a court officer shall send the Registrar General a notice –
(a) specifying the amendments; or
(b) informing the Registrar General of the revocation,
giving sufficient particulars of the order to enable the Registrar General to identify the case.
See also Practice Direction 27A, Practice Direction 27B, Practice Direction 27C
Part 27 HEARINGS AND DIRECTIONS APPOINTMENTS
Contents of this Part
Application of this Part
27.1
This Part is subject to any enactment, any provision in these rules or a practice direction.
(Rule 27.4(7) makes additional provision in relation to requirements to stay proceedings where the respondent does not appear and a relevant European regulation or international convention applies)
Reasons for a decision : proceedings before a lay justice or justices
27.2
(1) This rule applies to proceedings in the family court before a lay justice or justices.
(2) After a hearing, the court will make its decision as soon as is practicable.
(3) The court must give written reasons for its decision.
(4) Paragraphs (5) and (6) apply where the functions of the court are being performed by –
(a) two or three lay justices; or
(b) by a single lay justice in accordance with these rules and Practice Direction 2A.
(5) The justices’ legal adviser must, before the court makes an order or refuses an application or request, make notes of –
(a) the names of the lay justice or justices constituting the court by which the decision is made; and
(b) in consultation with the lay justice or justices, the reasons for the court’s decision.
(6) The justices’ legal adviser must make a written record of the reasons for the court’s decision.
(7) When making an order or refusing an application, the court, or one of the lay justices constituting the court by which the decision is made, will announce its decision and –
(a) the reasons for that decision; or
(b) a short explanation of that decision.
(8) Subject to any other rule or practice direction, the court officer will supply a copy of the order and the reasons for the court’s decision to the persons referred to in paragraph (9) –
(a) by close of business on the day when the court announces its decision; or
(b) where that time is not practicable and the proceedings are on notice, no later than 72 hours from the time when the court announced its decision.
(9) The persons referred to in paragraph (8) are –
(a) the parties (unless the court directs otherwise);
(b) any person who has actual care of a child who is the subject of proceedings, or who had such care immediately prior to the making of the order;
(c) in the case of an emergency protection order and a recovery order, the local authority in whose area the child lives or is found;
(d) in proceedings to which Part 14 applies –
(i) an adoption agency or local authority which has prepared a report on the suitability of the applicant to adopt a child;
(ii) a local authority which has prepared a report on the placement of the child for adoption;
(e) any other person who has requested a copy if the court is satisfied that it is required in connection with an appeal or possible appeal.
(Rule 12.16(5) provides for the applicant to serve a section 8 order and an order in emergency proceedings made without notice within 48 hours after the making of the order. Rule 10.6(1) provides for the applicant to serve the order in proceedings under Part 4 of the 1996 Act. Rule 4.1(3)(a) permits the court to extend or shorten the time limit for compliance with any rule. Rule 6.33 provides for other persons to be supplied with copy documents under paragraph (8).)
Attendance at hearing or directions appointment
27.3
Unless the court directs otherwise, a party shall attend a hearing or directions appointment of which that party has been given notice.
Proceedings in the absence of a party
27.4
(1) Proceedings or any part of them shall take place in the absence of any party, including a party who is a child, if –
(a) the court considers it in the interests of the party, having regard to the matters to be discussed or the evidence likely to be given; and
(b) the party is represented by a children’s guardian or solicitor,
and when considering the interests of a child under sub-paragraph (a) the court shall give the children’s guardian, the solicitor for the child and, if of sufficient understanding and the court thinks it appropriate, the child, an opportunity to make representations.
(2) Subject to paragraph (3), where at the time and place appointed for a hearing or directions appointment the applicant appears but one or more of the respondents do not, the court may proceed with the hearing or appointment.
(3) The court shall not begin to hear an application in the absence of a respondent unless –
(a) it is proved to the satisfaction of the court that the respondent received reasonable notice of the date of the hearing; or
(b) the court is satisfied that the circumstances of the case justify proceeding with the hearing.
(4) Where, at the time and place appointed for a hearing or directions appointment, one or more of the respondents appear but the applicant does not, the court may refuse the application or, if sufficient evidence has previously been received, proceed in the absence of the applicant.
(5) Where, at the time and place appointed for a hearing or directions appointment, neither the applicant nor any respondent appears, the court may refuse the application.
(6) Paragraphs (2) to (5) do not apply to a hearing to which paragraphs (5) to (8) of rule 12.14 do not apply by virtue of paragraph (9) of that rule.
(7) Nothing in this rule affects any provision of an international convention by which the United Kingdom is bound which requires a court to stay proceedings where a respondent in another State has not been adequately served with proceedings in accordance with the requirements of that convention.
Application to set aside judgment or order following failure to attend
27.5
(1) Where a party does not attend a hearing or directions appointment and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside(GL).
(2) An application under paragraph (1) must be supported by evidence.
(3) Where an application is made under paragraph (1), the court may grant the application only if the applicant –
(a) acted promptly on finding out that the court had exercised its power to enter judgment or make an order against the applicant;
(b) had a good reason for not attending the hearing or directions appointment; and
(c) has a reasonable prospect of success at the hearing or directions appointment.
Court bundles and place of filing of documents and bundles
27.6
(1) The provisions of Practice Direction 27A must be followed for the preparation of court bundles and for other related matters in respect of hearings and directions appointments.
Representation of companies or other corporations
27.7
A company or other corporation may be represented at a hearing or directions appointment by an employee if –
(a) the employee has been authorised by the company or corporation to appear at the hearing or directions appointment on its behalf; and
(b) the court gives permission.
Impounded documents
27.8
(1) Documents impounded by order of the court must not be released from the custody of the court except in compliance with –
(b) a written request made by a Law Officer or the Director of Public Prosecutions.
(2) A document released from the custody of the court under paragraph (1)(b) must be released into the custody of the person who requested it.
(3) Documents impounded by order of the court, while in the custody of the court, may not be inspected except by a person authorised to do so by a court order.
Recording, transcription and informal notes of proceedings
27.9
(1) At any hearing, the proceedings will be tape recorded or digitally recorded unless the court directs otherwise.
(2) No party or member of the public may use unofficial recording equipment in any court without the permission of the court. (To do so without permission constitutes a contempt of court under section 9 of the Contempt of Court Act 1981( ).)
(3) Unless the court directs otherwise, a person to whom paragraph (4) applies may require a transcript of the recording of any hearing in proceedings to be supplied to them, upon payment of the charges authorised by any scheme in force for the making of the recording or the transcript.
(4) This paragraph applies to—
(a)a party to the proceedings;
(b)the King’s Proctor; and
(c)where a declaration of parentage has been made under section 55A of the 1986 Act( ), the Registrar General.
(5) A person to whom paragraph (4) does not apply may be provided with a transcript of the recording of any hearing—
(a)with the permission of the court; and
(b)upon payment of the charges authorised by any scheme in force for the making of the recording or the transcript.
(6) At any hearing, the court may give appropriate directions to assist a party, in particular one who is or has been or may become unrepresented, for the compilation and sharing of a note or other informal record of the proceedings made by another party.”.
Hearings in private
27.10
(1) Proceedings to which these rules apply will be held in private, except –
(a) where these rules or any other enactment provide otherwise;
(b) subject to any enactment, where the court directs otherwise.
(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present.
Attendance at private hearings
27.11
(1) This rule applies when proceedings are held in private, except in relation to –
(a) hearings conducted for the purpose of judicially assisted conciliation or negotiation;
(b) proceedings to which the following provisions apply –
(i) Part 13 (proceedings under section 54 or section 54A of the Human Fertilisation and Embryology Act 2008);
(ii) Part 14 (procedure for applications in adoption, placement and related proceedings); and
(iii) any proceedings identified in a practice direction as being excepted from this rule.
(2) When this rule applies, no person shall be present during any hearing other than –
(b) a party to the proceedings;
(c) a litigation friend for any party, or legal representative instructed to act on that party’s behalf;
(d) an officer of the service or Welsh family proceedings officer;
(f) duly accredited representatives of news gathering and reporting organisations;
(ff) a duly authorised lawyer attending for journalistic, research or public legal educational purposes; and
(g) any other person whom the court permits, or who is required by any practice direction, to be present.
(Practice Direction 27C makes provision for the attendance at hearings of Independent Domestic Violence Advisers and Independent Sexual Violence Advisers.)
(3) At any stage of the proceedings the court may direct that persons within paragraph (2)(f) and (ff) shall not attend the proceedings or any part of them, where satisfied that –
(i) in the interests of any child concerned in, or connected with, the proceedings;
(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
(iii) for the orderly conduct of the proceedings; or
(b) justice will otherwise be impeded or prejudiced.
(4) The court may exercise the power in paragraph (3) of its own initiative or pursuant to representations made by any of the persons listed in paragraph (5), and in either case having given to any person within paragraph (2)(f) and (ff) who is in attendance an opportunity to make representations.
(5) At any stage of the proceedings, the following persons may make representations to the court regarding restricting the attendance of persons within paragraph (2)(f) and (ff) in accordance with paragraph (3) –
(a) a party to the proceedings;
(b) any witness in the proceedings;
(c) where appointed, any children’s guardian;
(d) where appointed, an officer of the service or Welsh family proceedings officer, on behalf of the child the subject of the proceedings;
(e) the child, if of sufficient age and understanding.
(6) This rule does not affect any power of the court to direct that witnesses shall be excluded until they are called for examination.
(7) In this rule—
“duly accredited” refers to accreditation in accordance with any administrative scheme for the time being approved for the purposes of this rule by the Lord Chancellor; and
“duly authorised lawyer” means a person who meets the criteria specified in Practice Direction 27B.
Contents of this Practice Direction
SECTION I – SCOPE AND INTERPRETATION
1.1 Rule 2.4 provides that Judges, Masters and District Judges may exercise any function of the court except where an enactment, rule or practice direction provides otherwise. In respect of proceedings in the High Court, Section II of this Practice Direction sets out the matters over which Masters or District Judges do not have jurisdiction or which they may deal with only on certain conditions. References to Circuit Judges include Recorders and references to Masters and District Judges include Deputies.
1.1A Circuit Judges and District Judges may exercise any jurisdiction conferred on the County Court or on a judge of the County Court. Section III of this Practice Direction sets out the matters that will be allocated to a Circuit Judge as well as those that may, or will normally, be allocated to a District Judge.
1.1B This Practice Direction does not affect jurisdiction conferred by other enactments. Reference should also be made to other relevant Practice Directions (eg, Part 24, paragraph 3 and Part 26, paragraphs 12.1-10). The jurisdiction conferred on Masters and District Judges by this Practice Direction shall be exercised in accordance with directions from time to time provided by the President of the King’s Bench Division, the Chancellor of the High Court, the Presiding Judges, or the Chancery Supervising Judges.
1.1C This Practice Direction is not concerned with family proceedings. It is also not concerned with proceedings in the Family Division except to the extent that such proceedings can be dealt with in the Chancery Division or the Family Division, eg, proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 or under section 14 of the Trusts of Land and Appointment of Trustees Act 1996. District Judges (including District Judges of the Principal Registry of the Family Division) have jurisdiction to hear such proceedings, subject to any Direction given by the President of the Family Division.
1.2 Masters or District Judges who have jurisdiction to hear a matter or to whom a matter has been allocated, may refer that matter to a Judge instead of dealing with it themselves.
1.3 For the purpose of this Practice Direction, in the County Court—
(a) ‘Circuit Judge’ means, in addition to a Circuit Judge, all judges of the Senior Courts, including retired and deputy judges of those courts, Recorders and Upper Tribunal judges (including the Senior President of Tribunals, Chamber Presidents, deputy Presidents of the Upper Tribunal and deputy judges of the Upper Tribunal, but excluding District Judges and District Judges (Magistrates’ Courts)) and the Judge Advocate General; and
(b) ‘District Judge’ means all other Courts and tribunal judges, and High Court Officers (for example, Masters and Registrars), including deputy or temporary High Court Officers, who are judges of the County Court under section 5 of the County Courts Act 1984.
To the topSECTION II – THE HIGH COURT
Injunctions, Pre-trial Orders and Interim Remedies
2. Search orders (rule 25.1(1)(h)), freezing orders (rule 25.1(1)(f)) and an ancillary order under rule 25.1(1)(g) may only be made by a Judge.
3.1 A Master or District Judge may not make orders or grant interim remedies-
(a) relating to the liberty of the subject;
(b) relating to criminal proceedings or matters except procedural applications in appeals to the High Court (including appeals by case stated) under any enactment;
(c) relating to a claim for judicial review, except that interim applications in claims for judicial review may be made to Masters of the King’s Bench Division;
(d) relating to appeals from Masters or District Judges;
(e) in appeals against costs assessment under Parts 44 to 47, except on an appeal under rule 47.21 against the decision of an authorised court officer;
(f) in applications under section 42 of the Senior Courts Act 1981 by a person subject to a Civil or a Criminal or an All Proceedings Order (vexatious litigant) for permission to start or continue proceedings; or
g) in applications under section 139 of the Mental Health Act 1983 for permission to bring proceedings against a person.
3.1A Notwithstanding the provisions of paragraph 3.1 a Master of the Crown Office or a Master of the Administrative Court may–
(a) make orders and grant interim remedies relating to claims for judicial review (including claims for judicial review relating to criminal causes, appeals under the Extradition Act 2003 and applications to vary bail conditions, provided the prosecutor does not oppose the variation);
(b) determine liability for costs and make summary assessments of costs in relation to claims for judicial review; and
(c) make orders and grant interim remedies relating to applications under section 42 of the Senior Courts Act 1981 for permission to start or continue claims for judicial review.
To the topEarly Trials
4.1 A Master or District Judge may only give directions for early trial after consulting the Head of the relevant Division or a Judge nominated by the Head of Division.
To the topAssignment of Claims to Masters and Transfer between Masters
6.1 The Senior Master and the Chief Master will make arrangements for proceedings to be assigned to individual Masters. They may vary such arrangements generally or in particular cases, for example, by transferring a case from a Master to whom it had been assigned to another Master.
6.2 The fact that a case has been assigned to a particular Master does not prevent another Master from dealing with that case if circumstances require, whether at the request of the assigned Master or otherwise.
To the topFreezing Orders: Cross Examination of Deponents about Assets
7 Where the court has made a freezing order under rule 25.1(f) and has ordered a person to make a witness statement or affidavit about his assets and to be cross-examined on its contents, unless the Judge directs otherwise, the cross-examination will take place before a Master or a District Judge, or if the Master or District Judge directs, before an examiner of the Court.
To the topHuman Rights
7A A deputy High Court Judge, a Master or District Judge may not try –
(1) a case in a claim made in respect of a judicial act under the Human Rights Act 1998, or
(2) a claim for a declaration of incompatibility in accordance with section 4 of the Human Rights Act 1998.
To the topChancery Proceedings
7B.1 In proceedings in the Chancery Division, a Master may not deal with the following without the consent of the Chancellor of the High Court–
(a) granting an indemnity for costs out of the assets of a company on the application of minority shareholders bringing a derivative action; or
(b) making orders in proceedings in the Patents Court except–
(i) orders by way of settlement, except settlement of procedural disputes;
(ii) applications for extension of time;
(iii) applications for permission to serve out of the jurisdiction;
(iv) applications for security for costs;
(v) other matters as directed by a judge of the court; and
(vi) enforcement of money judgments.
7B.2 In proceedings in the Chancery Division, a District Judge may not deal with the following without the consent of the Supervising Judge for the region in which the District Judge is sitting, or without the consent of their nominee–
(a) approving compromises (other than applications under the Inheritance (Provision for Family and Dependants) Act 1975) (i) on behalf of a person under disability where that person’s interest in a fund, or if there is no fund, the maximum amount of the claim, exceeds £100,000 or any larger sum specified by the Chancellor of the High Court and (ii) on behalf of absent, unborn and unascertained persons;
(b) making final orders under section 1(1) of the Variation of Trusts Act 1958, except for the removal of protective trusts where the interest of the principal beneficiary has not failed or determined;
(c) giving permission to executors, administrators and trustees to bring or defend proceedings or to continue the prosecution or defence of proceedings, and granting an indemnity for costs out of the trust estate;
(d) granting an indemnity for costs out of the assets of a company on the application of minority shareholders bringing a derivative action;
(e) making an order for rectification, except for–
(i) rectification of the register under the Land Registration Act 1925; or
(ii) alteration or rectification of the register under the Land Registration Act 2002.
7B.3 The consent of the Supervising Judge for a District Judge to deal with proceedings specified in paragraph 7B.2 may be given either in respect of an individual case, or in respect of the categories of cases listed at 7B.2(a) to (e). The consent of the Supervising Judge’s nominee may only be given in respect of an individual case.
7B.4 Where a winding-up order has been made against a company, any proceedings against the company by or on behalf of debenture holders may be dealt with, at the Royal Courts of Justice, by a Registrar and, in a District Registry with insolvency jurisdiction, by a District Judge.
To the topSECTION III – THE COUNTY COURT
Injunctions, Anti-social Behaviour Orders, Committal and Freezing Orders
8.1 Applications for orders and interim injunctions which may not be made or granted by a District Judge in the High Court may not be allocated to a District Judge in the County Court. In the first instance, the following applications for orders and interim remedies(including injunctions whether interim or final) will be allocated to a District Judge—
(a)proceedings which have been or may be allocated to a District Judge pursuant to paragraph 11.1 below;
(b)injunctions sought in money claims which have not yet been allocated to a track and the amount claimed does not exceed the fast track financial limit;
(c)injunctions that are to be made under any of the following provisions—
(i) sections 36A, 26B or 26C or 91(3) of the Anti-social Behaviour Act 2002;
(ii)section 27(3) of the Police and Justice Act 2009;
(iii)section 3 of the Protection from Harassment Act 1997;
(iv)sections 34, 40 or 41 of the Policing and Crime Act 2009; or
(v)Part 1 of the Anti-Social Behaviour, Crime and Policing Act 2014.
8.2 An application for an order varying or discharging an injunction or an undertaking given to the court may be allocated to a District Judge.
8.3 Any proceedings in which the court may make an order committing a person to prison or attach a power of arrest to an injunction or remand a person will be allocated to a Circuit Judge, unless the order, power of arrest or remand is made—
(a)In proceedings which have been or may be allocated to a District Judge pursuant to paragraph 8.1 above;
(b)pursuant to section 23 of the Attachment of Earnings Act 1971; or
(c)pursuant to section 14 and section 118 (but only in relation to proceedings before a District Judge) of the County Courts Act 1984,
or where the order may be made in relation to a breach of an undertaking given in proceedings referred to in (a), (b) or (c) above.
8.4
(1) An application for a freezing order will be allocated to a Circuit Judge authorised for the purpose by the Master of the Rolls or the Deputy Head of Civil Justice.
(2) If a Circuit Judge makes a freezing order, paragraph 7 applies as appropriate.
To the topHomelessness Appeals
9 Appeals under section 204 or section 204A of the Housing Act 1996 will be
allocated to a Circuit Judge.
Other pre-trial Orders and Interim Remedies
10 The proceedings specified paragraph 3.1(d) and (e) above will be allocated to a Circuit Judge.
To the topTrials and Assessments of Damages
11.1 The following proceedings referred to in paragraph 8.1(a) will normally be allocated to a District Judge—
(a) any claim which has been allocated to the small claims track, fast track or intermediate track or which is treated as being allocated to the multi-track under rule 8.9(c), or any claim referred to in the table at Section B of Practice Direction 49E, except claims:
(i) under Part I of the Landlord and Tenant Act 1927;
(ii) for a new tenancy under section 24 or for the termination of a tenancy under section 29(2) of the Landlord and Tenant Act 1954;
(iii) for an order under section 38 or 40 of the Landlord and Tenant Act 1987;
(iv) under paragraph 26 or 27 of Schedule 11 to or section 27 of the Agricultural Holdings Act 1986;
(v) under section 45(2) of the Matrimonial Causes Act 1973 for a declaration of legitimation by virtue of the Legitimacy Act 1976;
(vi) under section 35, 38 or 40 of the Fair Trading Act 1973; or
(vii) under Part II of the Mental Health Act 1983.
(b) proceedings for the recovery of land, proceedings under section 82A(2) of the Housing Act 1985 or section 6A(2) of the Housing Act 1988 (demotion claims) or proceedings in the County Court under Chapter 1A of the Housing Act 1996 (demoted tenancies);
(c) the assessment of damages or other sum due to a party under a judgment without any financial limit; and
(d) any other proceedings with the direction or permission of the Designated Civil Judge or Supervising Judge or Supervising Judge’s nominee.
11.2
(1) A case allocated to the small claims track may only be assigned to a Circuit Judge to hear with their consent.
(2) A case may only be referred to a Circuit Judge under section 65 of the County Courts Act 1984 with their consent.
To the topOther proceedings
12
(1) Proceedings under the following enactments will be allocated to a Circuit Judge—
(a) sections 29 and 30 of the Literary and Scientific Institutions Act 1854;
(b) the Bankers Books Evidence Act 1879;
(c) section 1 of the Law of Distress Amendment Act 1895;
(d) the Stannaries Court (Abolition) Act 1896;
(e) section 6 of the Allotments Act 1922;
(f) the Chancel Repairs Act 1932;
(g) paragraph 7(b) of Schedule 8 to the Opencast Coal Act 1958;
(h) sections 57, 66, 101(3) and 121 of the County Courts Act 1984; and
(i) paragraph 6 of Schedule 18 to the Housing Act 1985.
(2) A request for the appointment of a court officer to take affidavits under section 56(1)(c) of the County Courts Act 1984, will be made to a Circuit Judge.
(3) Proceedings referred to in the following enactments will be allocated to a District Judge—
(a) sections 85, 101(1), 104 and Part VI of, and Schedule 1 to, the County Court’s Act 1984;
(b) section 49 of the Vehicle Excise and Registration Act 1994;
(c) paragraphs 9 and 10 of Schedule 1 to the London Local Authorities Act 1996;
(d) paragraphs 6 and 7 of the Local Authorities and Transport for London Act 2003; and
(e) section 64 of the Tribunals Courts and Enforcement Act 2007.
(4) In respect of any proceedings not referred to in this Section, if an enactment which specified the level of judge having jurisdiction to deal with those proceedings was amended by Schedule 9 to the Crime and Courts Act 2013 to confer jurisdiction on the County Court or a judge of the County Court, the proceedings will be allocated to a Circuit Judge or District Judge as if the enactment had not been so amended, unless any other enactment, rule or practice direction provides for the allocation of those proceedings.
To the topDistribution of Business between Circuit Judge and District Judge
13 In any case where proceedings may be allocated to either a Circuit Judge or a District Judge, allocation is subject to any arrangements made by the Designated Civil Judge for the proper distribution of business between Circuit Judges and District Judges.
14.1 In district registries of the High Court and in the County Court, the Designated Civil Judge may make arrangements for proceedings to be assigned to individual District Judges and may vary such arrangements generally or in particular cases, save that in cases proceeding in the Chancery Division or the County Court Chancery Business List those arrangements shall be made by the Supervising Judge
or their nominee.
14.2 The fact that a case has been assigned to a particular District Judge does not prevent another District Judge from dealing with the case if the circumstances require.
To the topHuman Rights
15 A case in which an allegation of indirect discrimination is made against a public authority that would, if the court finds that it occurred, be unlawful under section 19B of the Race Relations Act 1976 will be allocated to a Circuit Judge.
To the topThis Part applies to applications issued by the court on or after 6 April 2022. For applications issued by the court before 6 April 2022 see the following link.
See also Practice Direction 9A
Part 9 APPLICATIONS FOR A FINANCIAL REMEDY
Contents of this Part
I APPLICATION AND INTERPRETATION
Application
9.1
(1) The rules in this Part apply to an application for a financial remedy.
(2) This Part is subject to any provision made by or pursuant to Part 41 (proceeding by electronic means).
(“Financial remedy” and “financial order” are defined in rule 2.3.)
To the topOmitted
9.2
To the topInterpretation
9.3
(1) In this Part –
‘avoidance of disposition order’ means –
(a) in proceedings under the 1973 Act, an order under section 37(2)(b) or (c) of that Act;
(b) in proceedings under the 1984 Act, an order under section 23 (2)(b) or 23(3) of that Act2;
(c) in proceedings under Schedule 5 to the 2004 Act, an order under paragraph 74(3) or (4); or
(d) in proceedings under Schedule 7 to the 2004 Act, an order under paragraph 15(3) or (4);
‘the Board’ means the Board of the Pension Protection Fund;
‘fast-track procedure’ means the procedure set out in Chapter 5;
‘FDR appointment’ means a Financial Dispute Resolution appointment in accordance with rule 9.17;
‘Financial Circumstances Form’ means the Financial Circumstances Form published by the Permanent Bureau of the Hague Conference under Article 11(4) of the 2007 Hague Convention for use in relation to applications under Article 10 of that Convention;
‘order preventing a disposition’ means –
(a) in proceedings under the 1973 Act, an order under section 37(2)(a) of that Act;
(b) in proceedings under the 1984 Act, an order under section 23(2)(a) of that Act;
(c) in proceedings under Schedule 5 to the 2004 Act, an order under paragraph 74(2); or
(d) in proceedings under Schedule 7 to the 2004 Act, an order under paragraph 15(2);
(a) an occupational pension scheme;
(b) a personal pension scheme;
(c) shareable state scheme rights;
(d) a retirement annuity contract;
(e) an annuity or insurance policy purchased, or transferred, for the purpose of giving effect to rights under an occupational pension scheme or a personal pension scheme; and
(f) an annuity purchased, or entered into, for the purpose of discharging liability in respect of a pension credit under section 29(1)(b) of the Welfare Reform and Pensions Act 1999 or under corresponding Northern Ireland legislation;
‘pension attachment order’ means –
(a) in proceedings under the 1973 Act, an order making provision under section 25B or 25C of that Act3;
(b) in proceedings under the 1984 Act, an order under section 17(1)(a)(i) of that Act making provision equivalent to an order referred to in paragraph (a);
(c) in proceedings under Schedule 5 to the 2004 Act, an order making provision under paragraph 25 or paragraph 26; or
(d) in proceedings under Schedule 7 to the 2004 Act, an order under paragraph 9(2)4 or (3) making provision equivalent to an order referred to in paragraph (c);
‘pension compensation attachment order’ means –
(a) in proceedings under the 1973 Act, an order making provision under section 25F of that Act5;
(b) in proceedings under the 1984 Act, an order under section 17(1)(a)(i) of that Act6 making provision equivalent to an order referred in to paragraph (a);
(c) in proceedings under Schedule 5 to the 2004 Act, an order under paragraph 34A; and
(d) in proceedings under Schedule 7 to the 2004 Act, an order under paragraph 9(2) or (3) making provision equivalent to an order referred to in paragraph (c);
‘pension compensation sharing order’ means –
(a) in proceedings under the 1973 Act, an order under section 24E of that Act7;
(b) in proceedings under the 1984 Act, an order under section 17(1)(c) of that Act;
(c) in proceedings under Schedule 5 to the 2004 Act, an order under paragraph 19A ; and
(d) in proceedings under Schedule7 to the 2004 Act, an order under paragraph 9(2) or (3)8 making provision equivalent to an order referred to in paragraph (c);
‘pension sharing order’ means –
(a) in proceedings under the 1973 Act, an order making provision under section 24B of that Act9;
(b) in proceedings under the 1984 Act, an order under section 17(1)(b) of that Act;
(c) in proceedings under Schedule 5 to the 2004 Act, an order under paragraph 15; or
(d) in proceedings under Schedule 7 to the 2004 Act, an order under paragraph 9(2) or (3) making provision equivalent to an order referred to in paragraph (c);
‘pension scheme’ means, unless the context otherwise requires, a scheme for which the Board has assumed responsibility in accordance with Chapter 3 of Part 2 of the Pensions Act 2004 (pension protection) or any provision in force in Northern Ireland corresponding to that Chapter;
‘PPF compensation’ has the meaning given to it –
(a) in proceedings under the 1973 Act, by section 21C of the 1973 Act10;
(b) in proceedings under the 1984 Act, by section 18(7) of the 1984 Act; and
(c) in proceedings under the 2004 Act, by paragraph 19F of Schedule 5 to the 2004 Act;
‘relevant valuation’ means a valuation of pension rights or benefits as at a date not more than 12 months earlier than the date fixed for the first appointment which has been furnished or requested for the purposes of any of the following provisions –
(a) the Pensions on Divorce etc (Provision of Information) Regulations 200011;
(b) regulation 5 of and Schedule 2 to the Occupational Pension Schemes (Disclosure of Information) Regulations 199612 and regulation 11 of and Schedule 1 to the Occupational Pension Schemes (Transfer Value) Regulations 199613;
(c) section 93A or 94(1)(a) or (aa) of the Pension Schemes Act 199314;
(d) section 94(1)(b) of the Pension Schemes Act 1993 or paragraph 2(a) (or, where applicable, 2(b)) of Schedule 2 to the Personal Pension Schemes (Disclosure of Information) Regulations 198715;
(e) the Dissolution etc. (Pensions) Regulations 200516;
‘standard procedure’ means the procedure set out in Chapter 4;
(a) in proceedings under the 1973 Act, an order under section 31 of that Act; or
(b) in proceedings under the 2004 Act, an order under Part 11 of Schedule 5 to that Act.
(aa) where an application for establishment or modification of maintenance is made under Article 10 of the2007 Hague Convention, references in this Part to ‘financial statement’ apply to the applicant as if for ‘financial statement’ there were substituted ‘Financial Circumstances Form’;
(b) Sub-paragraph (aa) does not apply where the relief sought includes relief which is of a type to which the 2007 Hague Convention does not apply.
To the topII PROCEDURE FOR APPLICATIONS
When an Application for a financial order may be made
9.4
An application for a financial order may be made –
(a) in an application for a matrimonial or civil partnership order; or
(b) at any time after an application for a matrimonial or civil partnership order has been made.
To the topWhere to start proceedings
9.5
(1) An application for a financial remedy must be filed –
(a) if there are proceedings for a matrimonial order or a civil partnership order which are proceeding in the family court, in that court; or
(b) if there are proceedings for a matrimonial order or a civil partnership order which are proceeding in the High Court, in the registry in which those proceedings are taking place.
Application for an order preventing a disposition
9.6
(1) The Part 18 procedure applies to an application for an order preventing a disposition.
(2) An application for an order preventing a disposition may be made without notice to the respondent.
(‘Order preventing a disposition’ is defined in rule 9.3.)
To the topApplication for interim orders
9.7
(1) A party may apply at any stage of the proceedings for –
(a) an order for maintenance pending suit;
(b) an order for maintenance pending outcome of proceedings;
(c) an order for interim periodical payments;
(d) an interim variation order (da) an order for payment in respect of legal services; or
(e) any other form of interim order.
(2) An application for an order mentioned in paragraph (1) shall be made using the Part 18 procedure.
(3) Where a party makes an application before filing a financial statement, the written evidence in support must –
(a) explain why the order is necessary; and
(b) give up to date information about that party’s financial circumstances.
(4) Unless the respondent has filed a financial statement, the respondent must, at least 7 days before the court is to deal with the application, file a statement of his means and serve a copy on the applicant.
(5) An application for an order mentioned in paragraph (1)(e) may be made without notice.
To the topApplication for periodical payments order at same rate as an order for maintenance pending suit
9.8
(1) This rule applies where there are matrimonial proceedings and –
(a) a conditional order of divorce or nullity of marriage has been made;
(b) at or after the date of the conditional order an order for maintenance pending suit is in force; and
(c) the spouse in whose favour the conditional order was made has made an application for an order for periodical payments.
(2) The spouse in whose favour the conditional order was made may apply, using the Part 18 procedure, for an order providing for payments at the same rate as those provided for by the order for maintenance pending suit.
To the topApplication for periodical payments order at same rate as an order for maintenance pending outcome of proceedings
9.9
(1) This rule applies where there are civil partnership proceedings and –
(a) a conditional order of dissolution or nullity of civil partnership has been made;
(b) at or after the date of the conditional order an order for maintenance pending outcome of proceedings is in force;
(c) the civil partner in whose favour the conditional order was made has made an application for an order for periodical payments.
(2) The civil partner in whose favour the conditional order was made may apply, using the Part 18 procedure, for an order providing for payments at the same rate as those provided for by, the order for maintenance pending the outcome of proceedings.
To the topApplication to set aside a financial remedy order
9.9A
(1) In this rule—
(a) “financial remedy order” means an order or judgment that is a financial remedy, and includes—
(i) part of such an order or judgment; or
(ii) a consent order; and
(b) “set aside” means—
(i) in the High Court, to set aside a financial remedy order pursuant to section 17(2) of the Senior Courts Act 1981 and this rule;
(ii) in the family court, to rescind or vary a financial remedy order pursuant to section 31F(6) of the 1984 Act17.
(2) A party may apply under this rule to set aside a financial remedy order where no error of the court is alleged.
(3) An application under this rule must be made within the proceedings in which the financial remedy order was made.
(4) An application under this rule must be made in accordance with the Part 18 procedure, subject to the modifications contained in this rule.
(5) Where the court decides to set aside a financial remedy order, it shall give directions for the rehearing of the financial remedy proceedings or make such other orders as may be appropriate to dispose of the application.
Standard and fast-track procedures for financial remedy proceedings
9.9B
(1) In this rule “order for periodical payments” means an order under—
(a)section 23(1)(a), (b), (d) or (e) of the 1973 Act;
(b)section 27(5) or (6)(a), (b), (d) or (e) of the 1973 Act;
(c)paragraph 1(2)(a) or (b), 2(2)(a) or 9 of Schedule 1 to the 1989 Act;
(d)paragraph 2(1)(a), (b), (d) or (e) of Schedule 5 to the 2004 Act;
(e)paragraph 40 or 41(1)(a), (b), (d) or (e) of Schedule 5 to the 2004 Act.
(2) Subject to paragraph (3), an application for a financial remedy must be dealt with under the standard procedure.
(3) The fast-track procedure applies to—
(a)any application where the financial remedy sought is only for an order for periodical payments;
(b)any application made under—
(i)the 1978 Act;
(ii)Schedule 6 to the 2004 Act;
(iii) Omitted
(iv)Article 10 of the 2007 Hague Convention;
(c)any application for the variation of an order for periodical payments, except where the applicant seeks the dismissal (immediate or otherwise) of the periodical payments order and its substitution with one or more of a lump sum order, a property adjustment order, a pension sharing order or a pension compensation sharing order.
(4) At any stage in the proceedings the court may order that an application proceeding under the fast-track procedure must proceed under the standard procedure.
(Rule 9.18A provides for specific occasions when the court may direct that a case should proceed under the standard procedure.)
III APPLICATIONS FOR FINANCIAL REMEDIES FOR CHILDREN
Application by parent, guardian etc for financial remedy in respect of children
9.10
(1) The following people may apply for a financial remedy in respect of a child –
(a) a parent, guardian or special guardian of any child of the family;
(b) any person who is named in a child arrangements order as a person with whom a child of the family is to live, and any applicant for such an order;
(c) any other person who is entitled to apply for a child arrangements order which names that person as a person with whom a child is to live;
(d) a local authority, where an order has been made under section 31(1)(a) of the 1989 Act placing a child in its care;
(e) the Official Solicitor, if appointed the children’s guardian of a child of the family under rule 16.24; and
(f) subject to paragraph (1A), a child of the family who has been given permission to apply for a financial remedy.
(1A) Where the application is –
(a) for the variation of an order under section 2(1)(c), 6 or 7 of the 1978 Act or paragraph 2(1)(c) of, or Part 2 or 3 of, Schedule 6 to the 2004 Act for periodical payments in respect of a child;
(b) the application is made by the child in question; and
(c) the child in question is aged 16 or over,
the child does not require permission to make the application.
To the topChildren to be separately represented on certain applications
9.11
(1) Where an application for a financial remedy includes an application for an order for a variation of settlement, the court must, unless it is satisfied that the proposed variation does not adversely affect the rights or interests of any child concerned, direct that the child be separately represented on the application.
(2) On any other application for a financial remedy the court may direct that the child be separately represented on the application.
(3) Where a direction is made under paragraph (1) or (2), the court may if the person to be appointed so consents, appoint –
(a) a person other than the Official Solicitor; or
(b) the Official Solicitor,
to be a children’s guardian and rule16.24(5) and (6) and rules 16.25 to 16.28 apply as appropriate to such an appointment.
To the topIV STANDARD PROCEDURE
Duties of the court and the applicant upon issuing an application
9.12
(1) When an application under this Part is issued, except where Chapter 5 of this Part applies –
(a) the court will fix a first appointment not less than 12 weeks and not more than 16 weeks after the date of the filing of the application; and
(b) subject to paragraph (2),within 4 days beginning with the date on which the application was filed, a court officer will –
(i) serve a copy of the application on the respondent; and
(ii) give notice of the date of the first appointment to the applicant and the respondent.
(2) Where the applicant wishes to serve a copy of the application on the respondent and on filing the application so notifies the court
(a) paragraph (1)(b) does not apply;
(b) a court officer will return to the applicant the copy of the application and the notice of the date of the first appointment; and
(i) within 4 days beginning with the date on which the copy of the application is received from the court, serve the copy of the application and notice of the date of the first appointment on the respondent; and
(ii) file a certificate of service at or before the first appointment.
(Rule 6.37 sets out what must be included in a certificate of service.)
(3) The date fixed under paragraph (1), or for any subsequent appointment, must not be cancelled except with the court’s permission and, if cancelled, the court must immediately fix a new date.
(4) In relation to an application to which the 2007 Hague Convention applies, where the applicant does not already know the address of the respondent at the time the application is issued, paragraph (2) does not apply and the court will serve the application in accordance with paragraph (1).
To the topService of application on mortgagees, trustees etc
9.13
(1) Where an application for a financial remedy includes an application for an order for a variation of settlement, the applicant must serve copies of the application on –
(a) the trustees of the settlement;
(b) the settlor if living; and
(c) such other persons as the court directs.
(2) In the case of an application for an avoidance of disposition order, the applicant must serve copies of the application on the person in whose favour the disposition is alleged to have been made.
(3) Where an application for a financial remedy includes an application relating to land, the applicant must serve a copy of the application on any mortgagee of whom particulars are given in the application.
(4) Any person served under paragraphs (1), (2) or (3) may make a request to the court in writing, within 14 days beginning with the date of service of the application, for a copy of the applicant’s financial statement or any relevant part of that statement.
(a) is served with copies of the application in accordance with paragraphs (1), (2) or (3); or
(b) receives a copy of a financial statement, or a relevant part of that statement, following an application made under paragraph (4),
may within 14 days beginning with the date of service or receipt file a statement in answer.
(6) Where a copy of an application is served under paragraphs (1), (2) or (3), the applicant must file a certificate of service at or before the first appointment.
(7) A statement in answer filed under paragraph (5) must be verified by a statement of truth.
To the topProcedure before the first appointment
9.14
(1) Not less than 35 days before the first appointment both parties must simultaneously exchange with each other and file with the court a financial statement in the form referred to in Practice Direction 5A.
(2) The financial statement must–
(a) be verified by a statement of truth;and
(b) accompanied by the following documents only –
(i) any documents required by the financial statement;
(ii) any other documents necessary to explain or clarify any of the information contained in the financial statement; and
(iii) any documents provided to the party producing the financial statement by a person responsible for a pension arrangement, either following a request under rule 9.30 or as part of a relevant valuation; and
(iv) any notification or other document referred to in rule 9.37(2), (4) or (5) which has been received by the party producing the financial statement.
(2ZA) Paragraph (2A) applies where the court has determined that the procedure in this Chapter should apply to an application under Article 10 of the 2007 Hague Convention.
(2A) The requirement of paragraph (2)(a)relating to verification by a statement of truth does not apply to the financial statement of either party where the application has been made under–
(b) Article 10 of the 2007 Hague Convention, using the Financial Circumstances Form,
and the relief sought is limited to a type to which that Convention, applies, but the court may at any time direct that the financial statement of either party shall be verified by a statement of truth.
(3) Where a party was unavoidably prevented from sending any document required by the financial statement, that party must at the earliest opportunity –
(a) serve a copy of that document on the other party; and
(b) file a copy of that document with the court, together with a written explanation of the failure to send it with the financial statement.
(4) No disclosure or inspection of documents may be requested or given between the filing of the application for a financial remedy and the first appointment, except –
(a) copies sent with the financial statement, or in accordance with paragraph (3); or
(b) in accordance with paragraphs (5) and (6).
(Rule 21.1 explains what is meant by disclosure and inspection.)
(5) Not less than 14 days before the hearing of the first appointment, each party must file with the court and serve on the other party –
(a) a concise statement of the issues between the parties;
(c) a questionnaire setting out by reference to the concise statement of issues any further information and documents requested from the other party or a statement that no information and documents are required; and
(d) a notice stating whether that party will be in a position at the first appointment to proceed on that occasion to a FDR appointment.
(6) Not less than 14 days before the hearing of the first appointment, the applicant must file with the court and serve on the respondent confirmation –
(a) of the names of all persons served in accordance with rule 9.13(1) to (3); and
(b) that there are no other persons who must be served in accordance with those paragraphs.
To the topDuties of the court at the first appointment
9.15
(1) The first appointment must be conducted with the objective of defining the issues and saving costs.
(2) At the first appointment the court must determine –
(a) the extent to which any questions seeking information under rule 9.14(5)(c) must be answered; and
(b) what documents requested under rule 9.14(5)(c) must be produced,
and give directions for the production of such further documents as may be necessary.
(3) The court must give directions where appropriate about –
(a) the valuation of assets (including the joint instruction of joint experts);
(b) obtaining and exchanging expert evidence, if required;
(c) the evidence to be adduced by each party; and
(d) further chronologies or schedules to be filed by each party.
(4) The court must direct that the case be referred to a FDR appointment unless—
(a) the first appointment or part of it has been treated as a FDR appointment and the FDR appointment has been effective; or
(b) there are exceptional reasons which make a referral to a FDR appointment inappropriate.
(5) If the court decides that a referral to a FDR appointment is not appropriate it must direct one or more of the following –
(a) that a further directions appointment be fixed;
(b) that an appointment be fixed for the making of an interim order;
(c) that the case be fixed for a final hearing and, where that direction is given, the court must determine the judicial level at which the case should be heard.
(Rule 3.4 makes provision in relation to cases in which the court considers non-court dispute resolution is appropriate.)
(6) In considering whether to make a costs order under rule 28.3(5), the court must have particular regard to the extent to which each party has complied with the requirement to send documents with the financial statement and the explanation given for any failure to comply.
(a) where an application for an interim order has been listed for consideration at the first appointment, make an interim order;
(b) having regard to the contents of the notice filed by the parties under rule 9.14(5)(d), treat the appointment (or part of it) as a FDR appointment to which rule 9.17 applies;
(c) in a case where a pension sharing order or a pension attachment order is requested, direct any party with pension rights to file and serve a Pension Inquiry Form, completed in full or in part as the court may direct; and
(d) in a case where a pension compensation sharing order or a pension compensation attachment order is requested, direct any party with PPF compensation rights to file and serve a Pension Protection Fund Inquiry Form, completed in full or in part as the court may direct.
(8) Both parties must personally attend the first appointment unless the court directs otherwise.
To the topAfter the first appointment
9.16
(1) Between the first appointment and the FDR appointment, a party is not entitled to the production of any further documents except –
(a) in accordance with directions given under rule 9.15(2); or
(b) with the permission of the court.
(a) a party may apply for further directions or a FDR appointment;
(b) the court may give further directions or direct that parties attend a FDR appointment.
To the topThe FDR appointment
9.17
(1) The FDR appointment must be treated as a meeting held for the purposes of discussion and negotiation.
(2) The judge hearing the FDR appointment must have no further involvement with the application, other than to conduct any further FDR appointment or to make a consent order or a further directions order.
(3) Not less than 7 days before the FDR appointment, the applicant must file with the court details of all offers and proposals, and responses to them.
(4) Paragraph (3) includes any offers,proposals or responses made wholly or partly without prejudice(GL), but paragraph (3) does not make any material admissible as evidence if, but for that paragraph, it would not be admissible.
(5) At the conclusion of the FDR appointment, any documents filed under paragraph (3), and any filed documents referring to them, must, at the request of the party who filed them, be returned to that party and not retained on the court file.
(6) Parties attending the FDR appointment must use their best endeavours to reach agreement on matters in issue between them.
(7) The FDR appointment may be adjourned from time to time.
(8) At the conclusion of the FDR appointment, the court may make an appropriate consent order.
(9) If the court does not make an appropriate consent order as mentioned in paragraph (8), the court must give directions for the future course of the proceedings including, where appropriate –
(a) the filing of evidence, including up to date information;
(b) fixing a final hearing date; and
(c)any necessary directions for the filing of open proposals for settlement under rule 9.27A or rule 9.28.
(10) Both parties must personally attend the FDR appointment unless the court directs otherwise.
To the topV FAST-TRACK PROCEDURE
Duties of the court and the applicant upon filing an application
9.18
(A1) This Chapter applies where, in accordance with rule 9.9B, the fast-track procedure applies to an application for a financial remedy.
(ii) Schedule 6 to the 2004 Act;
(iii) Schedule 1 to the 1989 Act; or
(v) Article 10 of the 2007 Hague Convention.
(b) for the variation of an order for a financial remedy.
(1) Where an application is issued –
(a) the court will fix a first hearing date not less than 6 weeks and not more than 10 after the date of the filing of the application; and
(b) subject to paragraph (2),within 4 days beginning with the date on which the application was filed, a court officer will –
(i) serve a copy of the application on the respondent; and
(ii) give notice of the date of the first hearing to the applicant and the respondent.
(2) Where the applicant wishes to serve a copy of the application on the respondent and, on filing the application, so notifies the court –
(a) paragraph (1)(b) does not apply;
(b) a court officer will return to the applicant the copy of the application and the notice of the date of the first hearing; and
(i) within 4 days beginning with the date on which the copy of the application is received from the court, serve the copy of the application and notice of the date of the first hearing on the respondent; and
(iii) file a certificate of service at or before the first hearing.
(3) The date fixed under paragraph (1),or for any other subsequent hearing or appointment must not be cancelled except with the court’s permission and, if cancelled, the court must immediately fix a new date.
(4) omitted
(5) In relation to an application to which the 2007 Hague Convention applies, where the applicant does not already know the address of the respondent at the time the application is issued, paragraph (2) does not apply and the court will serve the application in accordance with paragraph (1).
Request for change of procedure
9.18A
(1) Paragraph (2) applies where the applicant wishes to seek a direction from the court that the standard procedure should apply to an application to which the fast-track procedure would otherwise apply.
(2) Where this paragraph applies, a request for a direction—
(a)must be made with the application for a financial remedy; and
(b)must state—
(i)that the applicant seeks a direction that the standard procedure should apply; and
(ii)the applicant’s reasons for seeking such a direction.
(3) Paragraph (4) applies where—
(a)a respondent wishes to seek a direction from the court that the standard procedure should apply to an application to which the fast-track procedure would otherwise apply; or
(b)a respondent wishes to make representations on an application made by the applicant to which paragraph (1) applies.
(4) Where this paragraph applies, the respondent’s request or representations—
(a)must be filed with the court within 7 days of service of the application for a financial remedy; and
(b)must state—
(i)which procedure (standard or fast-track) the respondent wishes the court to direct should apply to the application for a financial remedy; and
(ii)the respondent’s reasons for seeking such a direction.
(5) Where a request or representations referred to in this rule have been made, the court must—
(a)determine without notice to the parties and before the first hearing whether the standard procedure or the fast-track procedure should apply to the application for a financial remedy; and
(b)notify the parties of its determination and any directions made in consequence of that determination.
To the topProcedure before the first hearing
9.19
(1) Not more than 21 days after the date of the issue of the application both parties must simultaneously exchange with each other and file with the court a financial statement referred to in Practice Direction 5A.
(2) The financial statement must –
(a) be verified by a statement of truth; and
(b) contain the following documents only –
(i) any documents required by the financial statement; and
(ii) any other documents necessary to explain or clarify any of the information contained in the financial statement.
(2A) The requirement of paragraph (2)(a)relating to verification by statement of truth does not apply to the financial statement of either party where the application has been made under –
(b) Article 10 of the 2007 Hague Convention, using the Financial Circumstances Form,
but the court may at any time direct that the financial statement of either party shall be verified by a statement of truth.
(3) Where a party was unavoidably prevented from sending any document required by the financial statement, that party must at the earliest opportunity –
(a) serve a copy of that document on the other party; and
(b) file a copy of that document with the court, together with a statement explaining the failure to send it with the financial statement.
(4) No disclosure or inspection of documents may be requested or given between the filing of the application for a financial remedy and the first hearing except copies sent with the financial statement or in accordance with paragraph (3).
(Rule 21.1 explains what is meant by disclosure and inspection.)
To the topConsideration of the application at the first hearing
9.20
(1) If the court is able to determine the application at the first hearing, it must do so unless it considers that there are good reasons not to do so.
(2) Paragraphs (3) to (7) apply where the court does not determine the application at the first hearing.
(3) The court may give directions relating to—
(a)the filing of further evidence;
(b)the production of further documents;
(c)any other matter required for the fair determination of the matter.
(4) The court may use the first hearing or part of it as a FDR appointment.
(5) Where the court uses the first hearing or part of it as a FDR appointment, rule 9.17 applies with these modifications—
(a)for paragraph (3) substitute—
“(3) At the first hearing, the applicant must produce to the court all offers and proposals and responses to them.”; and
(b) paragraph (7) does not apply.
(6) The court may direct that the application be referred to a FDR appointment.
(7) If the court decides that a referral to a FDR appointment is not appropriate it must direct one or more of the following—
(a)that a further directions appointment be fixed;
(b)that an appointment be fixed for the making of an interim order;
(c)that the case be fixed for a final hearing and, where that direction is given, the court must determine the judicial level at which the case should be heard.
(Rule 3.4 makes provision in relation to cases in which the court considers non-court dispute resolution is appropriate.)
To the topWho the respondent is on an application under section 20 or section 20A of the 1978 Act19 or Part 6 of Schedule 6 to the 2004 Act
9.21
In relation to proceedings set out in column 1 of the following table, column 2 sets out who the respondents to those proceedings will be.
| Proceedings | Respondent |
|---|---|
| Application under section 20 of the 1978 Act | The other party to the marriage; and where the order to which the application relates requires periodical payments to be made to, or in respect of, a child who is 16 years of age or over, that child. |
| Application under paragraphs 30 to 34 of Schedule 6 to the 2004 Act | The other party to the civil partnership; and where the order to which the application relates requires periodical payments to be made to, or in respect of, a child who is 16 years of age or over, that child. |
| Application for the revival of an order under section 20A of the 1978 Act or paragraph 40 of Schedule 6 to the 2004 Act | The parties to the proceedings leading to the order which it is sought to have revived |
Duty to make entries in the court’s register
9.21A
Where a court officer receives notice of any direction made in the High Court or family court under section 28 of the 1978 Act by virtue of which an order made under that Act or the 2004 Act ceases to have effect, particulars of the direction must be noted in the court’s records.
To the topVA CERTAIN APPLICATIONS
9.22 Omitted
To the topOmitted
9.23
To the topVI GENERAL PROCEDURE
Power to order delivery up of possession etc.
9.24
(1) This rule applies where the court has made an order under –
(a) section 24A of the 1973 Act24;
(b) section 17(2) of the 1984 Act;
(c) Part 3 of Schedule 5 to the 2004 Act; or
(d) paragraph 9(4) of Schedule 7 to the 2004 Act.
(2) When the court makes an order mentioned in paragraph (1), it may order any party to deliver up to the purchaser or any other person –
(a) possession of the land, including any interest in, or right over, land;
(b) receipt of rents or profits relating to it; or
(c) both.
To the topWhere proceedings may be heard
9.25
(1) Paragraph (2) applies to an application –
(b) under Part 3 of the 1984 Act; or
(c) under Schedule 7 to the 2004 Act.
(2) An application mentioned in paragraph (1) must be heard –
(a) Omitted
(b) where the case is proceeding in the High Court –
(i) at the Royal Courts of Justice; or
(ii) in matrimonial or civil partnership proceedings, any court at which sittings of the High Court are authorised.
To the topApplications for consent orders for financial remedy
9.26
(1) Subject to paragraph (5) and to rule 35.2, in relation to an application for a consent order –
(a) the applicant must file two copies of a draft of the order in the terms sought, one of which must be endorsed with a statement signed by the respondent to the application signifying agreement; and
(b) each party must file with the court and serve on the other party, a statement of information in the form referred to in Practice Direction 5A.
(2) Where each party’s statement of information is contained in one form, it must be signed by both the applicant and respondent to certify that they have read the contents of the other party’s statement.
(3) Where each party’s statement of information is in a separate form, the form of each party must be signed by the other party to certify that they have read the contents of the statement contained in that form.
(4) Unless the court directs otherwise, the applicant and the respondent need not attend the hearing of an application for a consent order.
(5) Where all or any of the parties attend the hearing of an application for a financial remedy the court may –
(a) dispense with the filing of a statement of information; and
(b) give directions for the information which would otherwise be required to be given in such a statement in such a manner as it thinks fit.
(6) In relation to an application for a consent order under Part 3 of the 1984 Act or Schedule 7 to the 2004 Act, the application for permission to make the application may be heard at the same time as the application for a financial remedy if evidence of the respondent’s consent to the order is filed with the application.
(The following rules contain provision in relation to applications for consent orders – rule 9.32 (pension sharing order), rule 9.34 (pension attachment order), rule 9.41 (pension compensation sharing orders) and rule 9.43 (pension compensation attachment orders.)
To the topQuestions as to the court’s jurisdiction or whether the proceedings should be stayed
9.26A
(1) This rule applies to applications for maintenance where a question as to jurisdiction arises under –
(a) to (d) Omitted
(e) Article 18 of the 2007 Hague Convention.
(2) If at any time after the issue of the application it appears to the court that it does not or may not have jurisdiction to hear an application, or that under the instruments referred to in paragraph (1) it is or may be required to stay the proceedings or to decline jurisdiction, the court must –
(b) fix a date for a hearing to determine jurisdiction or whether there should be a stay or other order.
(3) The court officer will serve notice of the hearing referred to at paragraph (2)(b) on the parties to the proceedings.
(4) The court must, in writing –
(a) give reasons for its decision under paragraph (2), and
(b) where it makes a finding of fact, state such finding.
(5) The court may with the consent of all the parties deal with any question as to the jurisdiction of the court, or as to whether the proceedings should be stayed, without a hearing.
To the topInternational Maintenance Obligations: Communication with the Central Authority for England and Wales
9.26AA
(1) Where the Lord Chancellor requests information or a document from the court officer for the relevant court for the purposes of Articles 12 or 25(2) of the 2007 Hague Convention, the court officer shall provide the requested information or document to the Lord Chancellor forthwith.
(2) In this rule, ‘relevant court’ means the court at which an application under Article 10 of the 2007 Hague Convention has been filed.
[The Lord Chancellor is the Central Authority for England and Wales in relation to the 2007 Hague Convention]
To the topAdding or removing parties
9.26B
(1) The court may direct that a person or body be added as a party to proceedings for a financial remedy if –
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.
(2) The court may direct that any person or body be removed as a party if it is not desirable for that person or body to be a party to the proceedings.
(3) If the court makes a direction for the addition or removal of a party under this rule, it may give consequential directions about –
(a) the service of a copy of the application form or other relevant documents on the new party; and
(b) the management of the proceedings.
(4) The power of the court under this rule to direct that a party be added or removed may be exercised either on the court’s own initiative or on the application of an existing party or a person or body who wishes to become a party.
(5) An application for an order under this rule must be made in accordance with the Part 18 procedure and, unless the court directs otherwise, must be supported by evidence setting out the proposed new party’s interest in or connection with the proceedings or, in the case of removal of a party, the reasons for removal.
To the topMethod of making periodical payments
9.26C
(1) This rule applies where under section 1(4) or (4A) of the Maintenance Enforcement Act 199130the court orders that payments under a qualifying periodical maintenance order are to be made by a particular means.
(2) The court officer will record on a copy of the order the means of payment that the court has ordered.
(3) The court officer will notify in writing the person liable to make payments under the order how the payments are to be made.
(4) Where under section 1(4A) of the Maintenance Enforcement Act 1991 the court orders payment to the court by a method of payment under section 1(5) of that Act, the court officer will notify the person liable to make payments under the order of sufficient details of the account into which payments should be made to enable payments to be made into that account.
(5) Where payments are made to the court, the court officer will give or send a receipt to any person who makes such a payment and who asks for a receipt.
(6) Where payments are made to the court, the court officer will make arrangements to make the payments to –
(a) the person entitled to them; or
(b) if the person entitled to them is a child, to the child or to the person with whom the child has his or her home.
(7) The Part 18 procedure applies to an application under section 1(7) of the Maintenance Enforcement Act 1991 (application from an interested party to revoke, suspend, revive or vary the method of payment).
(8) Where the court makes an order under section 1(7) of the Maintenance Enforcement Act 1991 or dismisses an application for such an order, the court officer will, as far as practicable, notify in writing all interested parties of the effect of the order and will take the steps set out in paragraphs (2), (3) and (4), as appropriate.
(9) In this rule, ‘interested party’ and ‘qualifying periodical maintenance order’ have the meanings given in section 1(10) of the Maintenance Enforcement Act 1991.
To the topCourt officer to notify subsequent marriage or formation of civil partnership of a person entitled to payments under a maintenance order
9.26D
(a) there is an order of a type referred to in paragraph (4) which requires payments to be made to the court or to an officer of the court; and
(b) the court is notified in writing by –
(i) the person entitled to receive payments under the order;
(ii) the person required to make payments under the order; or
(iii) the personal representative of such a person,
that the person entitled to receive payments under the order has subsequently married or formed a civil partnership.
(2) The court officer will, where practicable, notify in writing the courts referred to in paragraph (3) of the notification of the subsequent marriage or formation of a civil partnership.
(3) The courts to be notified are –
(a) any other court which has made an order of a type referred to in paragraph (4);
(b) in the case of a provisional order made under section 3 of the 1920 Act or section 3 of the 1972 Act, the court which confirmed the order;
(c) if an order of a type referred to in paragraph (4) has been transmitted abroad for registration under section 2 of the 1920 Act or section 2 of the 1972 Act, the court in which the order is registered; and
(d) any other court in which an application to enforce the order has been made.
(a) those to which the following provisions apply—
(i) section 38 of the 1973 Act;
(ii) section 4(2) of the 1978 Act;
(iii) paragraph 65 of Schedule 5 to the 2004 Act; and
(iv) paragraph 26(2) of Schedule 6 to the 2004 Act; and
(b) an attachment of earnings order made to secure payments under an order referred to in sub-paragraph (a).
(5) In this rule –
‘the 1920 Act’ means the Maintenance Orders (Facilities for Enforcement) Act 192031; and
‘the 1972 Act’ means the Maintenance Orders (Reciprocal Enforcement) Act 197232.
To the topEnforcement and apportionment where periodical payments are made under more than one order
9.26E
(1) This rule applies where periodical payments are required to be made by a payer to a payee under more than one periodical payments order.
(2) Proceedings for the recovery of payments under more than one order may be made in one application by the payee, which must indicate the payments due under each order.
(3) Paragraphs (4) and (5) apply where any sum paid to the court on any date by a payer who is liable to make payments to the court under two or more periodical payments orders is less than the total sum that the payer is required to pay to the court on that date in respect of those orders.
(4>) The payment made will be apportioned between the orders in proportion to the amounts due under each order over a period of one year.
(5) If, as a result of the apportionment referred to in paragraph (4), the payments under any periodical payments order are no longer in arrears, the residue shall be applied to the amount due under the other order or, if there is more than one other order, shall be apportioned between the other orders in accordance with paragraph (4).
(6) In this rule –
‘payee’ means a person entitled to receive payments under a periodical payments order; and
‘payer’ means a person required to make payments under a periodical payments order.”
To the topVII ESTIMATES OF COSTS
Estimates of Costs
9.27
(1) Except where paragraph (4) applies, not less than one day before every hearing or appointment, each party must file with the court and serve on each other party an estimate of the costs incurred by that party up to the date of that hearing or appointment.
(2) Not less than one day before the first appointment, each party must file with the court and serve on each other party an estimate of the costs that party expects to incur up to the FDR appointment if a settlement is not reached.
(3) Not less than one day before the FDR appointment, each party must file with the court and serve on each other party an estimate of the costs that party expects to incur up to the final hearing if a settlement is not reached.
(4) Not less than 14 days before the date fixed for the final hearing of an application for a financial remedy, each party (“the filing party”) must (unless the court directs otherwise) file with the court and serve on each other party a statement giving full particulars of all costs in respect of the proceedings which the filing party has incurred or expects to incur, to enable the court to take account of the parties’ liabilities for costs when deciding what order (if any) to make for a financial remedy.
(5) A costs estimate filed and served in accordance with paragraph (1), (2) or (3) and particulars of costs filed and served in accordance with paragraph (4) must include confirmation—
(a)that they have been served on each other party; and
(b)in the case of a party who is legally represented, that they have been discussed with the party on whose behalf they are provided.
(6) Each party must bring to a hearing or appointment a copy of any estimate of costs filed and served in accordance with paragraph (1), (2) or (3) and any particulars of costs filed and served in accordance with paragraph (4).
(7) The amount of—
(a)a costs estimate filed and served in accordance with paragraph (1), (2) or (3); and
(b)particulars of costs filed and served in accordance with paragraph (4),must be recorded in a recital to the order made at the hearing or appointment before which the estimate or particulars were filed or served.
(8) If a party fails to comply with paragraph (1), (2), (3) or (4)—
(a)this fact must be recorded in a recital to the order made at the hearing or appointment before which the costs estimate or particulars of costs should have been filed and served; and
(b)the court must direct that the relevant costs estimate or particulars of costs must be filed with the court and served on each other party within three days of the hearing or appointment or within such other time period as the court directs.
(Rule 28.3 makes provision for orders for costs in financial remedy proceedings.)
(Practice Direction 9A makes provision for statements of truth to be included in estimates of costs and particulars of costs filed and served in accordance with this rule.)
Duty to make open proposals after a FDR appointment or where there has been no FDR appointment
9.27A
(1) Where at a FDR appointment the court does not make an appropriate consent order or direct a further FDR appointment, each party must file with the court and serve on each other party an open proposal for settlement—
(a)by such date as the court directs; or
(b)where no direction is given under sub-paragraph (a), within 21 days after the date of the FDR appointment.
(2) Where no FDR appointment takes place, each party must file with the court and serve on each other party an open proposal for settlement—
(a)by such date as the court directs; or
(b)where no direction is given under sub-paragraph (a), not less than 42 days before the date fixed for the final hearing.
To the topDuty to make open proposals before a final hearing
9.28
(1) Not less than 14 days before the date fixed for the final hearing of an application for a financial remedy, the applicant must (unless the court directs otherwise) file with the court and serve on the respondent an open statement which sets out concise details, including the amounts involved, of the orders which the applicant proposes to ask the court to make.
(2) Not more than 7 days after service of a statement under paragraph (1), the respondent must file with the court and serve on the applicant an open statement which sets out concise details, including the amounts involved, of the orders which the respondent proposes to ask the court to make.
To the topVIII PENSIONS
Application and interpretation of this Chapter
9.29
(a) where an application for a financial remedy has been made; and
(b) the applicant or respondent is the party with pension rights.
(a) in proceedings under the 1973 Act and the 1984 Act, all words and phrases defined in sections 25D(3) and (4) of the 1973 Act26 have the meaning assigned by those subsections;
(b) in proceedings under the 2004 Act –
(i) all words and phrases defined in paragraphs 16(4) to (5) and 29 of Schedule 5 to that Act have the meanings assigned by those paragraphs; and
(ii) ‘the party with pension rights’ has the meaning given to ‘civil partner with pension rights’ by paragraph 29 of Schedule 5 to the 2004 Act;
(c) all words and phrases defined in section 46 of the Welfare Reform and Pensions Act 199927 have the meanings assigned by that section.
To the topWhat the party with pension rights must do when the court fixes a first appointment
9.30
(1) Where the court fixes a first appointment as required by rule 9.12(1)(a) the party with pension rights must request the person responsible for each pension arrangement under which the party has or is likely to have benefits to provide the information referred to in regulation 2(2) of the Pensions on Divorce etc (Provision of Information) Regulations 2000.
(The information referred to in regulation 2 of the Pensions on Divorce etc (Provision of Information) Regulations 2000 relates to the valuation of pension rights or benefits.)
(2) The party with pension rights must comply with paragraph (1) within 7 days beginning with the date on which that party receives notification of the date of the first appointment.
(3) Within 7 days beginning with the date on which the party with pension rights receives the information under paragraph (1) that party must send a copy of it to the other party, together with the name and address of the person responsible for each pension arrangement.
(4) A request under paragraph (1) need not be made where the party with pension rights is in possession of, or has requested, a relevant valuation of the pension rights or benefits accrued under the pension arrangement in question.
To the topApplications for pension sharing orders
9.31
Where an application for a financial remedy includes an application for a pension sharing order, or where a request for such an order is added to an existing application for a financial remedy, the applicant must serve a copy of the application on the person responsible for the pension arrangement concerned.
To the topApplications for consent orders for pension sharing
9.32
(a) the parties have agreed on the terms of an order and the agreement includes a pension sharing order;
(b) service has not been effected under rule 9.31; and
(c) the information referred to in paragraph (2) has not otherwise been provided.
(2) The party with pension rights must –
(a) request the person responsible for the pension arrangement concerned to provide the information set out in Section C of the Pension Inquiry Form; and
(b) on receipt, send a copy of the information referred to in sub-paragraph (a) to the other party.
To the topApplications for pension attachment orders
9.33
(1) Where an application for a financial remedy includes an application for a pension attachment order, or where a request for such an order is added to an existing application for a financial remedy, the applicant must serve a copy of the application on the person responsible for the pension arrangement concerned and must at the same time send –
(a) an address to which any notice which the person responsible is required to serve on the applicant is to be sent;
(b) an address to which any payment which the person responsible is required to make to the applicant is to be sent; and
(c) where the address in sub-paragraph (b) is that of a bank, a building society or the Department of National Savings, sufficient details to enable the payment to be made into the account of the applicant.
(2) A person responsible for a pension arrangement who receives a copy of the application under paragraph (1) may, within 21 days beginning with the date of service of the application, request the party with the pension rights to provide that person with the information disclosed in the financial statement relating to the party’s pension rights or benefits under that arrangement.
(3) If the person responsible for a pension arrangement makes a request under paragraph (2), the party with the pension rights must provide that person with a copy of the section of that party’s financial statement that relates to that party’s pension rights or benefits under that arrangement.
(4) The party with the pension rights must comply with paragraph (3) –
(a) within the time limited for filing the financial statement by rule 9.14(1); or
(b) within 21 days beginning with the date on which the person responsible for the pension arrangement makes the request,
(5) A person responsible for a pension arrangement who receives a copy of the section of a financial statement as required pursuant to paragraph (4) may, within 21 days beginning with the date on which that person receives it, send to the court, the applicant and the respondent a statement in answer.
(6) A person responsible for a pension arrangement who files a statement in answer pursuant to paragraph (5) will be entitled to be represented at the first appointment, or such other hearing as the court may direct, and the court must within 4 days, beginning with the date on which that person files the statement in answer, give the person notice of the date of the first appointment or other hearing as the case maybe.
To the topApplications for consent orders for pension attachment
9.34
(1) This rule applies where service has not been effected under rule 9.33(1).
(2) Where the parties have agreed on the terms of an order and the agreement includes a pension attachment order, then they must serve on the person responsible for the pension arrangement concerned –
(a) a copy of the application for a consent order;
(b) a draft of the proposed order, complying with rule 9.35; and
(c) the particulars set out in rule 9.33(1).
(3) No consent order that includes a pension attachment order must be made unless either –
(a) the person responsible for the pension arrangement has not made any objection within 21 days beginning with the date on which the application for a consent order was served on that person; or
(b) the court has considered any such objection, and for the purpose of considering any objection the court may make such direction as it sees fit for the person responsible to attend before it or to furnish written details of the objection.
To the topPension sharing orders or pension attachment orders
9.35
An order for a financial remedy, whether by consent or not, which includes a pension sharing order or a pension attachment order, must –
(a) in the body of the order, state that there is to be provision by way of pension sharing or pension attachment in accordance with the annex or annexes to the order; and
(b) be accompanied by a pension sharing annex or a pension attachment annex as the case may require, and if provision is made in relation to more than one pension arrangement there must be one annex for each pension arrangement.
To the topDuty of the court upon making a pension sharing order or a pension attachment order
9.36
(1) A court which varies or discharges a pension sharing order or a pension attachment order, must send, or direct one of the parties to send –
(a) to the person responsible for the pension arrangement concerned; or
(b) where the Board has assumed responsibility for the pension scheme or part of it, the Board;
the documents referred to in paragraph (4).
(2) A court which makes a pension sharing order or pension attachment order, must send, or direct one of the parties to send to the person responsible for the pension arrangement concerned, the documents referred to in paragraph (4).
(3) Where the Board has assumed responsibility for the pension scheme or part of it after the making of a pension sharing order or attachment order but before the documents have been sent to the person responsible for the pension arrangement in accordance with paragraph (2), the court which makes the pension sharing order or the pension attachment order, must send, or direct one of the parties to send to the Board the documents referred to in paragraph (4).
(4) The documents to be sent in accordance with paragraph (1) to (3) are –
(i) proceedings under the 1973 Act, a copy of the judicial separation order;
(ii) proceedings under Schedule 5 to the 2004 Act, a copy of the separation order;
(iii) proceedings under Part 3 of the 1984 Act, a copy of the document of divorce, annulment or legal separation;
(iv) proceedings under Schedule 7 to the 2004 Act, a copy of the document of dissolution, annulment or legal separation;
(b) in the case of divorce or nullity of marriage, a copy of the final order under rule 7.19 or 7.20; or
(c) in the case of dissolution or nullity of civil partnership, a copy of the order making the conditional order final under rule 7.19 or 7.20; and
(d) a copy of the pension sharing order or the pension attachment order, or as the case may be of the order varying or discharging that order, including any annex to that order relating to that pension arrangement but no other annex to that order.
(5) The documents referred to in paragraph (4) must be sent –
(a) in proceedings under the 1973 Act and the 1984 Act, within 7 days beginning with the date on which –
(i) the relevant pension sharing or pension attachment order, or any order varying or discharging such an order, is made; or
(ii) the final order of divorce or nullity or judicial separation order is made,
(b) in proceedings under the 2004 Act, within 7 days beginning with the date on which –
(i) the relevant pension sharing or pension attachment order, or any order varying or discharging such an order, is made; or
(ii) the final order of dissolution or nullity or separation order is made,
whichever is the later.
To the topProcedure where Pension Protection Fund becomes involved with the pension scheme
9.37
(a) rules 9.30 to 9.34 or 9.36 apply; and
(b) the party with the pension rights (“the member”) receives or has received notification in compliance with the Pension Protection Fund (Provision of Information) Regulations 2005 (‘the2005 Regulations’)28 –
(i) from the trustees or managers of a pension scheme, that there is an assessment period in relation to that scheme; or
(ii) from the Board that it has assumed responsibility for the pension scheme or part of it.
(2) If the trustees or managers of the pension scheme notify or have notified the member that there is an assessment period in relation to that scheme, the member must send to the other party, all the information which the Board is required from time to time to provide to the member under the 2005 Regulations including –
(a) a copy of the notification; and
(b) a copy of the valuation summary,
in accordance with paragraph (3).
(3) The member must send the information or any part of it referred to in paragraph (2) –
(a) if available, when the member sends the information received under rule 9.30(1); or
(b) otherwise, within 7 days of receipt.
(4) If the Board notifies the member that it has assumed responsibility for the pension scheme, or part of it, the member must –
(a) send a copy of the notification to the other party within 7 days of receipt; and
(b) comply with paragraph (5).
(5) Where paragraph (4) applies, the member must –
(a) within 7 days of receipt of the notification, request the Board in writing to provide a forecast of the member’s compensation entitlement as described in the 2005 Regulations; and
(b) send a copy of the forecast of the member’s compensation entitlement to the other party within 7 days of receipt.
(a) ‘assessment period’ means an assessment period within the meaning of Part 2 of the Pensions Act 2004; and
(b) ‘valuation summary’ has the meaning assigned to it by the 2005 Regulations.
To the topIX PENSION PROTECTION FUND COMPENSATION
Application and interpretation of this Chapter
9.38
(a) where an application for a financial remedy has been made; and
(b) the applicant or respondent is, the party with compensation rights.
(2) In this Chapter ‘party with compensation rights’ –
(a) in proceedings under the 1973 Act and the 1984 Act, has the meaning given to it by section 25G(5) of the 1973 Act;
(b) in proceedings under the 2004 Act, has the meaning given to ‘civil partner with compensation rights’ by paragraph 37(1) of Schedule 5 to the 2004 Act29.
To the topWhat the party with compensation rights must do when the court fixes a first appointment
9.39
(1) Where the court fixes a first appointment as required by rule 9.12(1)(a) the party with compensation rights must request the Board to provide the information about the valuation of entitlement to PPF compensation referred to in regulations made by the Secretary of State under section 118 of the Pensions Act 2008.
(2) The party with compensation rights must comply with paragraph (1) within 7 days beginning with the date on which that party receives notification of the date of the first appointment.
(3) Within 7 days beginning with the date on which the party with compensation rights receives the information under paragraph (1) that party must send a copy of it to the other party, together with the name and address of the trustees or managers responsible for each pension scheme.
(4) Where the rights to PPF Compensation are derived from rights under more than one pension scheme, the party with compensation rights must comply with this rule in relation to each entitlement.
To the topApplications for pension compensation sharing orders
9.40
Where an application for a financial remedy includes an application for a pension compensation sharing order or where a request for such an order is added to an existing application for a financial remedy, the applicant must serve a copy of the application on the Board.
To the topApplications for consent orders for pension compensation sharing
9.41
(a) the parties have agreed on the terms of an order and the agreement includes a pension compensation sharing order;
(b) service has not been effected under rule 9.40; and
(c) the information referred to in paragraph (2) has not otherwise been provided.
(2) The party with compensation rights must –
(a) request the Board to provide the information set out in Section C of the Pension Protection Fund Inquiry Form; and
(b) on receipt, send a copy of the information referred to in sub-paragraph (a) to the other party.
To the topApplications for pension compensation attachment orders
9.42
Where an application for a financial remedy includes an application for a pension compensation attachment order or where a request for such an order is added to an existing application for a financial remedy, the applicant must serve a copy of the application on the Board and must at the same time send –
(a) an address to which any notice which the Board is required to serve on the applicant is to be sent;
(b) an address to which any payment which the Board is required to make to the applicant is to be sent; and
(c) where the address in sub-paragraph (b) is that of a bank, a building society or the Department of National Savings, sufficient details to enable the payment to be made into the account of the applicant.
To the topApplications for consent orders for pension compensation attachment
9.43
(1) This rule applies where service has not been effected under rule 9.42.
(2) Where the parties have agreed on the terms of an order and the agreement includes a pension compensation attachment order, then they must serve on the Board –
(a) a copy of the application for a consent order;
(b) a draft of the proposed order, complying with rule 9.44; and
(c) the particulars set out in rule 9.42.
To the topPension compensation sharing orders or pension compensation attachment orders
9.44
An order for a financial remedy, whether by consent or not, which includes a pension compensation sharing order or a pension compensation attachment order, must –
(a) in the body of the order, state that there is to be provision by way of pension compensation sharing or pension compensation attachment in accordance with the annex or annexes to the order; and
(b) be accompanied by a pension compensation sharing annex or a pension compensation attachment annex as the case may require, and if provision is made in relation to entitlement to PPF compensation that derives from rights under more than one pension scheme there must be one annex for each such entitlement.
To the topDuty of the court upon making a pension compensation sharing order or a pension compensation attachment order
9.45
(1) court which makes, varies or discharges a pension compensation sharing order or a pension compensation attachment order, must send, or direct one of the parties to send, to the Board–
(i) proceedings under Part 3 of the 1984 Act, a copy of the document of divorce, annulment or legal separation;
(ii) proceedings under Schedule 7 to the 2004 Act, a copy of the document of dissolution, annulment or legal separation;
(i) divorce or nullity of marriage, a copy of the final order under rule 7.19 or 7.20;
(ii) dissolution or nullity of civil partnership, a copy of the order making the conditional order final under rule 7.19 or 7.20;
(c) in the case of separation –
(i) in the matrimonial proceedings, a copy of the judicial separation order;
(ii) in civil partnership proceedings, a copy of the separation order; and
(d) a copy of the pension compensation sharing order or the pension compensation attachment order, or as the case may be of the order varying or discharging that order, including any annex to that order relating to that PPF compensation but no other annex to that order.
(2) The documents referred to in paragraph (1) must be sent –
(a) in proceedings under the 1973 Act and the 1984 Act, within 7 days beginning with the date on which –
(i) the relevant pension compensation sharing or pension compensation attachment order is made; or
(ii) the final order of divorce or nullity or the judicial separation order is made,
(b) in proceedings under the 2004 Act, within 7 days beginning with the date on which –
(i) the relevant pension compensation sharing or pension compensation attachment order is made; or
(ii) the final order of dissolution or nullity or separation order is made,
whichever is the later.
To the topCHAPTER 10
COMMUNICATION OF INFORMATION FROM FINANCIAL REMEDY PROCEEDINGS
Communication of information: Practice Direction 9B
9.46
(1) For the purposes of the law relating to contempt of court, information from financial remedy proceedings may be communicated in accordance with Practice Direction 9B.
(2) Paragraph (1) is subject to any direction of the court.
(3) Nothing in this rule permits the communication to the public at large, or any section of the public, of any information relating to the proceedings.
(Rule 29.2 makes provision about disclosure of information under the 1991 Act.)
Footnotes
2. Sections 23(2) (a) and (b) and 23(3) have been prospectively substituted with savings by section 15 of and paragraph 4 of Schedule 2 to the Family Law Act 1996. Return to footnote 2
3. Section 25B was inserted by section 166(1) of the Pensions Act 1995 (c.26) and amended by section 21 of and paragraphs 1(1), (2), (4), (5)(a),(5)(b), (6), (7)(a), (7)(b), (8)(a), (8)(b), (8)(c) and (9) of the Welfare Reform and Pensions Act 1999 (c.30) and subsections (8) and (9) were inserted by section 16(3) of the Family Law Act 1996 and the section was modified by regulations 2 and 4(1) and (2)(b) of the Divorce etc (Pension Protection Fund) Regulations 2006 (S.I. 2006/1932). Section 25C was inserted by section 166(1) of the Pensions Act 1995 and amended by section 66(1) of and paragraph 11 of Schedule 8 to the Family Law Act 1996 and also amended by section 21 of and paragraphs 2(1), (2), (3)(a)(i) and (ii), (3)(b), (4)(a), (4)(b) and (5) of Schedule 4 to the Welfare Reform and Pensions Act 1999. Return to footnote 3
4. Paragraph 9(2) of Schedule 7 to the Civil Partnership Act 2004 was amended by section 120 of and paragraphs 14, 20(1), 20(2)(a) and (b) of the Pensions Act 2008 (c. 30). Return to footnote 4
5. Section 25F was inserted by section 120 of and paragraphs 1 and 7 of Schedule 6 to the Pensions Act 2008. Return to footnote 5
6. Section 17(1)(a)(i) was amended by section 66(1) of and paragraph 32(2) of Schedule 8 to the Family Law Act 1996 as amended by section 84(1) of and paragraphs 66(1) and (14) of Schedule 12 to the Welfare Reform and Pensions Act 1999. Return to footnote 6
7. Section 24E was inserted by section 120 of and paragraphs 1 and 3 of Schedule 6 to the Pensions Act 2008. Return to footnote 7
8. Paragraphs 9(2) and (3) of Schedule 7 to the Civil Partnership Act 2004 were amended by section 120 of and paragraphs 14 and 20(2)(b) of Schedule 6 to the Pensions Act 2008. Return to footnote 8
9. Section 24B was inserted by section 19 of and paragraphs 1 and 4 of Schedule 3 to the Welfare Reform and Pensions Act 1999. Return to footnote 9
10. Section 21C was inserted by section 120 of and paragraphs 1 and 2 of Schedule 6 to the Pensions Act 2008. Return to footnote 10
11. S.I. 2000/1048. Return to footnote 11
12. S.I. 1996/1655. Return to footnote 12
13. S.I. 1996/1847 Regulation 11 was amended by regulations 5(b), 5(c), 5(d)(i) and (ii), 5(e), 5(f) and 5(g) of the Occupational Pension Scheme (Transfer Values) (Amendment) Regulations 2008 (S.I. 2008/1050) and regulations 4(a)(ii) and 4(b) of the Occupational Pension Scheme (Winding Up and Transfer Values) (Amendment) Regulations 2005 (S.I.2005/72) and regulation 8 of the Occupational, Personal and Stakeholder Pensions (Miscellaneous Amendment) Regulations 2009 (S.I. 2009/615 and Schedule 1 was amended by regulations 7(a)(ii), (iii), (iv)(aa), (iv)(bb) and 7(b) of Occupational Pension Scheme (Transfer Values) (Amendment) Regulations 2008. Return to footnote 13
14. 1993 c.48 Section 93A was inserted by section 153 of the Pensions Act 1965 (c.26) and section 94(1)(a) and (aa) were amended by section 154(1) and (2) of the Pensions Act 1995. Return to footnote 14
15. S.I. 1987/1110. Return to footnote 15
16. S.I. 2005/2920. Return to footnote 16
17. 1984 c. 42. Section 31F was inserted by paragraph 1 of Schedule 10 to the Crime and Courts Act 2013. Return to footnote 17
19. Section 20A was inserted by section 33(1) of and paragraph 69 of Schedule 2 to the Family Law Reform Act 1987 and substituted by section 108(5) of and paragraph 39 of Schedule 13 to the Children Act 1989. Return to footnote 19
24. Section 24A was inserted by section 7 of the Matrimonial Homes and Property Act 1981 (c.24) and subsection 6 was inserted by section 46(1) of and Schedule 1 to that Act and the section was amended by section 66(1) and 66(3) of and paragraph 8 of Schedule 8 to and Schedule 10 to the Family Law Act 1996 and by section 261(1) of and paragraph 42 of Schedule 27 to the Civil Partnership Act 2004. Return to footnote 24
30. 1991 c. 17. Section 1(4A) was inserted by paragraph 77(5) of Schedule 10 to the Crime and Courts Act 2013 (c. 22). Return to footnote 30
31. 1920 c. 33. Return to footnote 31
32. 1972 c. 18. Return to footnote 32
26. Section 25D(3) and (4) was amended by sections 21 and 84(1) of and paragraphs 3(1) and (5) of Schedule 4 to and paragraphs 64 and 66(1) and (4) of Schedule 12 to the Welfare Reform and Pensions Act 1999 and section 66(1) of and Schedule 8 to the Family Law Act 1996. Return to footnote 26
27. Section 46 was amended by section 320 of and Part 1 of Schedule 13 to the Pensions Act 2004 (c.35) and articles 15(1) and (4) of the Taxation of Pension Schemes (Consequential Amendments) Order 2006 (S.I. 2006/745). Return to footnote 27
28. S.I. 2005/674. Return to footnote 28
29. Paragraph 37(1) was amended by section 120 of and paragraph 14, 16(1), (5)(a)(b) and 17(10) of Schedule 6 to the Pensions Act 2008. Return to footnote 29
To the topThe purpose of this Practice Direction is to reflect the principles of the Welsh Language Act 1993 and the Welsh Language (Wales) Measure 2011 that in the administration of justice in Wales, the English and Welsh languages should be treated on the basis of equality.
| Title |
|---|
| 1. GENERAL |
| 2. THE ALLOCATION QUESTIONNAIRE |
| 3. CASE MANAGEMENT |
| 4. LISTING BY THE COURT |
| 5. INTERPRETERS |
| 6. WITNESSES AND JURORS |
| 7. ROLE OF THE LIAISON JUDGE |
1. GENERAL
1.1 This practice direction applies to civil proceedings in or having a connection with Wales.
1.2The existing practice of conducting a hearing in Wales entirely in the Welsh language on an ad hoc basis and without notice will continue to apply when all parties and witnesses directly involved at the time consent to the proceedings being so conducted.
1.3 In every case in Wales in which it is possible that the Welsh language may be used by any party or witness [or in any document which may be placed before the court], the parties or their legal representatives must inform the court of that fact so that appropriate arrangements can be made for the management and listing of the case.
1.4 Any document placed before the court in civil proceedings in or having a connection with Wales may be in the English or Welsh Language. The parties or their legal representatives must inform the court as soon as practicable if a document in the Welsh language will or may be placed before the court so that appropriate arrangements can be made.
1.5 HMCTS forms in the Welsh language are available on the justice.gov.uk website. The Welsh Language Unit of HMCTS provides translation facilities.
1.6 If costs are incurred as a result of a party failing to comply with this direction, a costs Order may be made against that party or their legal representative.
1.7 Where a case is tried with a jury, the law does not permit the selection of jurors in a manner which enables the court to discover whether a juror does or does not speak Welsh or to secure a jury whose members are bilingual to try a case in which the Welsh language may be used.
To the top2. THE ALLOCATION QUESTIONNAIRE
2.1 In any proceedings in which a party is required to complete a directions questionnaire, that party must include details relating to the possible use of Welsh (i.e. details of any person wishing to give oral evidence in Welsh and of any documents in Welsh (e.g. documents to be disclosed under Part 31 or witness statements) which that party expects to use).
2.2 A party must include the details mentioned in paragraph 2.1 in the directions questionnaire even if that party has already informed the court of the possible use of Welsh in accordance with the provisions of section 1 above.
To the top3. CASE MANAGEMENT
3.1 At any interlocutory hearing, the court will take the opportunity to consider whether it should give case management directions. To assist the court, a party or that party’s legal representative should draw the court’s attention to the possibility of Welsh being used in the proceedings, even where he or she has already done so in compliance with other provisions of this direction.
3.2 In any case where a party is required to complete a pre-trial check list (listing questionnaire) and has already intimated the intention to use Welsh, that party should confirm the intended use of Welsh in the pre-trial check list and provide any details which have not been set out in the allocation questionnaire.
To the top4. LISTING BY THE COURT
4.1 The diary manager, in consultation with the Designated Civil Judge and the Liaison Judge(s) for the Welsh language, will ensure that a case in which the Welsh language is to be used is listed—
(a) wherever practicable before a Welsh speaking judge; and
(b) where translation facilities are needed, at a court with simultaneous translation facilities.
To the top5. INTERPRETERS
5.1 Whenever an interpreter is needed to translate evidence from English to Welsh or from Welsh to English, the Court Manager in whose court the case is to be heard will take steps to secure the attendance of an interpreter whose name is included in the list of approved court interpreters.
To the top6. WITNESSES AND JURORS
6.1 When each witness is called, the court officer administering the oath or affirmation will inform the witness that he or she may be sworn or may affirm in Welsh or English as he or she wishes.
6.2 Where a case is tried with a jury, the court officer swearing in the jury will inform the jurors in open court that each juror may take the oath or may affirm in Welsh or English as he or she wishes.
To the top7. ROLE OF THE LIAISON JUDGE
7.1
If any question or difficulty arises concerning the implementation of this practice direction, contact should in the first place be made with the Liaison Judge(s) for the Welsh language.
To the topCYFARWYDDYD YMARFER SY’N YMWNEUD Â DEFNYDDIO’R IAITH GYMRAEG MEWN ACHOSION YN Y LLYSOEDD SIFIL YNG NGHYMRU NEU SY’N GYSYLLTIEDIG Â CHYMRU
Diben y Cyfarwyddyd Ymarfer hwn yw adlewyrchu egwyddorion Deddf yr Iaith Gymraeg 1993 a Mesur yr Iaith Gymraeg (Cymru) 2011 sef y dylid trin y Gymraeg a’r Saesneg yn gyfartal wrth weinyddu cyfiawnder yng Nghymru.
| Cynnwys y Cyfarwyddyd Ymarfer hwn |
|---|
| Teitl |
| 1. CYFFREDINOL |
| 2. YR HOLIADUR CYFARWYDDIADAU |
| 3. RHEOLI ACHOSION |
| 4. RHESTRU GAN Y LLYS |
| 5. CYFIEITHWYR |
| 6. TYSTION A RHEITHWYR |
| 7. RÔL Y BARNWR CYSWLLT |
1. CYFFREDINOL
1.1 Mae’r cyfarwyddyd ymarfer hwn yn berthnasol i achosion sifil yng Nghymru neu sy’n gysylltiedig â Chymru.
1.2 Bydd yr ymarfer presennol o gynnal gwrandawiad yng Nghymru yn gyfan gwbl yn y Gymraeg ar sail ad hoc a heb rybudd yn parhau’n ddilys pan fo pob parti a phob tyst sy’n ymwneud yn uniongyrchol â’r achos ar y pryd yn cytuno iddo gael ei gynnal felly.
1.3 Ym mhob achos yng Nghymru lle y bydd tyst neu barti o bosibl am ddefnyddio’r Gymraeg [neu lle o bosibl y defnyddir y Gymraeg mewn unrhyw ddogfen a gyflwynir gerbron y llys], cyfrifoldeb y partïon neu eu cynrychiolwyr cyfreithiol yw hysbysu’r llys o hyn fel y gellir gwneud trefniadau priodol ar gyfer rheoli a rhestru’r achos.
1.4 Gall unrhyw ddogfen a gyflwynir gerbron y llys mewn achos sifil yng Nghymru neu sy’n gysylltiedig â Chymru fod yn Saesneg neu yn y Gymraeg. Rhaid i’r partïon neu eu cynrychiolwyr cyfreithiol hysbysu’r llys cyn gynted â’i bod yn ymarferol os bydd neu efallai bydd dogfennau yn yr iaith Gymraeg yn cael eu cyflwyno gerbron y llys fel y gellir gwneud trefniadau priodol.
1.5 Mae fersiynau iaith Gymraeg o ffurflenni GLlTEM ar gael ar wefan justice.gov.uk. Mae Uned Iaith Gymraeg GLlTEM yn darparu gwasanaethau cyfieithu.
1.6 Os achosir costau yn sgil methu â chydymffurfio â’r cyfarwyddyd hwn, gellir codi Gorchymyn Costau yn erbyn y parti neu ei gynrychiolydd cyfreithiol.
1.7 Pan fydd achos yn cael ei brofi gyda rheithgor, nid yw’r gyfraith yn caniatáu dethol rheithgor mewn modd sy’n galluogi’r Llys i ganfod a yw Rheithiwr yn siarad Cymraeg ai peidio nac i sicrhau Rheithgor y mae ei aelodau yn ddwyieithog i wrando achos lle o bosibl y defnyddir y Gymraeg.
2. YR HOLIADUR CYFARWYDDIADAU
2.1 Mewn unrhyw achos lle y mae gofyn i barti lenwi holiadur cyfarwyddiadau, rhaid iddo gynnwys manylion ynghylch defnydd posibl o’r Gymraeg, (h.y. manylion unrhyw berson a ddymunai roi tystiolaeth lafar yn y Gymraeg ac unrhyw ddogfennau yn y Gymraeg (e.e. dogfennau i’w datgelu dan Ran 31 neu ddatganiadau tystion) y mae’r parti hwnnw’n disgwyl eu defnyddio).
2.2 Rhaid i barti gynnwys y manylion a nodir ym mharagraff 2.1 yn yr holiadur cyfarwyddiadau, hyd yn oed os yw eisoes wedi hysbysu’r llys am ddefnydd posibl o’r Gymraeg yn unol â gofynion adran 1 uchod.
3. RHEOLI ACHOSION
3.1 Mewn unrhyw wrandawiad yng nghwrs achos bydd y llys yn manteisio ar y cyfle i ystyried a ddylai roi cyfarwyddiadau rheoli achos. I gynorthwyo’r llys, dylai parti neu ei gynrychiolydd cyfreithiol dynnu sylw’r llys at y posibilrwydd y gallai’r Gymraeg gael ei defnyddio yn yr achos, hyd yn oed os yw eisoes wedi gwneud hynny wrth gydymffurfio â gofynion eraill y cyfarwyddyd hwn.
3.2 Mewn unrhyw achos pan fydd gofyn i barti lenwi rhestr wirio cyn treial (holiadur rhestru) a’r parti hwnnw eisoes wedi nodi ei fwriad i ddefnyddio’r Gymraeg, dylai gadarnhau ei fwriad i ddefnyddio’r Gymraeg yn y rhestr wirio cyn treial, a rhoi unrhyw fanylion na chafodd eu nodi yn yr holiadur dyrannu.
4. RHESTRU GAN Y LLYS
4.1 Bydd rheolwr y dyddiadur, wrth ymgynghori â’r Barnwr Sifil Dynodedig a’r Barnwr/Barnwyr Cyswllt yr iaith Gymraeg, yn sicrhau bod achos lle defnyddir yr iaith Gymraeg yn cael ei restru—
(a) lle bynnag y bydd hynny’n ymarferol bosib, gerbron barnwr Cymraeg ei iaith; a
(b) lle bo angen cyfleusterau cyfieithu, mewn llys gyda chyfleusterau cyfieithu ar y pryd.
5. CYFIEITHWYR
5.1 Pryd bynnag y bydd angen cyfieithydd i gyfieithu tystiolaeth o’r Saesneg i’r Gymraeg neu o’r Gymraeg i’r Saesneg, bydd y Rheolwr Llys lle y cynhelir yr achos yn sicrhau y trefnir i gyfieithydd, y mae ei enw ar restr y llys o gyfieithwyr cymeradwy, fod yn bresennol.
6. TYSTION A RHEITHWYR
6.1 Wrth i bob tyst gael ei alw, bydd y swyddog llys sy’n gweinyddu’r llw neu’r cadarnhad yn hysbysu’r tyst y gall ef dyngu llw neu gadarnhau yn y Gymraeg neu yn y Saesneg yn ôl ei ddymuniad.
6.2 Pan gaiff achos ei brofi gan reithgor, bydd y swyddog llys sy’n gweinyddu llwon y rheithwyr yn hysbysu’r rheithwyr mewn llys agored y caiff pob rheithiwr dyngu llw neu gadarnhau yn y Gymraeg neu yn y Saesneg yn ôl ei ddymuniad.
7. RÔL Y BARNWR CYSWLLT
7.1 Os cyfyd unrhyw gwestiwn neu broblem ynghylch gweithredu’r Cyfarwyddyd Ymarfer hwn, dylid yn y lle cyntaf gysylltu â’r Barnwr/Barnwyr Cyswllt dros faterion y Gymraeg.”
See also Part 17
PRACTICE DIRECTION 17A – STATEMENTS OF TRUTH This Practice Direction supplements FPR Part 17
| Title | Number |
|---|---|
| Documents to be verified by a statement of truth | Para. 1.1 |
| Form of the statement of truth | Para. 2.1 |
| Who may sign the statement of truth | Para. 3.1 |
| Inability of persons to read or sign documents to be verified by a statement of truth | Para. 4.1 |
| Consequences of failure to verify | Para. 5.1 |
| Penalty | Para. 6.1 |
| Annex |
Documents to be verified by a statement of truth
1.1
Rule 17.2 sets out the documents which must be verified by a statement of truth.
1.2
If an applicant wishes to rely on matters set out in his application notice as evidence, the application notice must be verified by a statement of truth.
1.3
An expert’s report should also be verified by a statement of truth. For the form of the statement of truth verifying an expert’s report (which differs from that set out below), see paragraph 9.1(j) of Practice Direction 25B (The Duties Of An Expert, The Expert’s Report and Arrangements For An Expert To Attend Court).
1.4
In addition, the following documents must be verified by a statement of truth –
(a) an application notice for –
(i) a third party debt order (CPR Part 72 as modified by rule 33.24);
(ii) a hardship payment order (CPR Part 72 as modified by rule 33.24); or
(iii) a charging order (CPR Part 73 as modified by rule 33.25); and
(b) a notice of objections to an account being taken by the court, unless verified by an affidavit or witness statement.
1.5
The statement of truth may be contained in the document it verifies or it may be in a separate document served subsequently, in which case it must identify the document to which it relates.
1.6
Where the form to be used includes a jurat for the content to be verified by an affidavit, then a statement of truth is not required in addition.
1.7
In this Practice Direction, ‘statement of case’ has the meaning given to it by rule 17.1.
To the topForm of the statement of truth
2.1
The form of the statement of truth verifying a statement of case or an application notice should be as follows:
‘[I understand] [the (applicant or as the case may be) understands] that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. [I believe] [the (applicant or as may be) believes] that the facts stated in this [name document being verified] are true.”
2.2
The form of the statement of truth verifying a witness statement should be as follows:
“I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
I believe that the facts stated in this witness statement are true.”
2.3
Where the statement of truth is contained in a separate document, the document containing the statement of truth must be headed with the title of and court reference for the proceedings. The document being verified should be identified in the statement of truth as follows –
(a) application form: ‘the application form issued on [date]’;
(b) statement of case: ‘the (application or answer as may be) served on [name of party] on [date]’;
(c) application notice: ‘the application notice issued on [date] for [set out the remedy sought]’;
(d) witness statement: ‘the witness statement filed on [date] or served on [party] on [date]’.
2.4
Practice Direction 9A makes provision in relation to statements of truth to be included in costs estimates and particulars of costs to be filed and served in accordance with rule 9.27(1), (2), (3) or (4).”.
Who may sign the statement of truth
3.1
In a statement of case or an application notice, the statement of truth must be signed by –
(a) the party or his litigation friend; or
(b) the legal representative of the party or litigation friend.
3.2
A statement of truth verifying a witness statement must be signed by the witness.
3.3
A statement of truth verifying a notice of objections to an account must be signed by the objecting party or his or her legal representative.
3.4
Where a document is to be verified on behalf of a company or corporation, subject to paragraph 3.7 below, the statement of truth must be signed by a person holding a senior position in the company or corporation. That person must state the office or position he or she holds.
3.5
Each of the following persons is a person holding a senior position –
(a) in respect of a registered company or corporation, a director, the treasurer, secretary, chief executive, manager or other officer of the company or corporation; and
(b) in respect of a corporation which is not a registered company, in addition to those persons set out in (a), the major, chairman, president, chief executive of a local authority or town clerk or other similar officer of the corporation.
3.6
Where the document is to be verified on behalf of a partnership, those who may sign the statement of truth are –
(a) any of the partners; or
(b) a person having the management or control of the partnership business.
3.7
Where a party is legally represented, the legal representative may sign the statement of truth on his or her behalf. The statement signed by the legal representative will refer to the client’s belief, not his or her own. In signing he or she must state the capacity in which he or she signs and the name of his or her firm where appropriate.
3.8
Where a legal representative has signed a statement of truth, his or her signature will be taken by the court as his or her statement –
(a) that the client on whose behalf he or she has signed had authorised him or her to do so;
(b) that before signing he or she had explained to the client that in signing the statement of truth he or she would be confirming the client’s belief that the facts stated in the document were true; and
(c) that before signing he or she had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 17.6).
3.9
A legal representative who signs a statement of truth must print his or her full name clearly beneath his or her signature.
3.10
The individual who signs a statement of truth must sign in his or her own name and not that of his or her firm or employer.
3.11
The following are examples of the possible application of this practice direction describing who may sign a statement of truth verifying statements in documents other than a witness statement. These are only examples and not an indication of how a court might apply the practice direction to a specific situation.
Managing Agent
An agent who manages property or investments for the party cannot sign a statement of truth. It must be signed by the party or by the legal representative of the party.
Trusts
Where some or all of the trustees comprise a single party one, some or all of the trustees comprising the party may sign a statement of truth. The legal representative of the trustees may sign it.
Companies
Paragraphs 3.4 and 3.5 apply. The word ‘manager’ will be construed in the context of the phrase ‘a person holding a senior position’ which it is used to define. The court will consider the size of the company and the importance and nature of the proceedings. It would expect the manager signing the statement of truth to to have personal knowledge of the content of the document or to be responsible for those who have that knowledge of the content. A small company may not have a manager, apart from the directors, who holds a senior position. A large company will have many such managers. In a large company with specialist claims, insurance or legal departments the statement may be signed by the manager of such a department if he or she is responsible for handling the claim or managing the staff handling it.
To the topInability of persons to read or sign documents to be verified by a statement of truth
4.1
Where a document containing a statement of truth is to be signed by a person who is unable to read or sign the document, it must contain a certificate made by an authorised person.
4.2
An authorised person is a person able to administer oaths and take affidavits but need not be independent of the parties or their representatives.
4.3
The authorised person must certify –
(a) that the document has been read to the person signing it;
(b) that the person appeared to understand it and approved its content as accurate;
(c) that the declaration of truth has been read to that person;
(d) that that person appeared to understand the declaration and the consequences of making a false declaration; and
(e) that that person signed or made his mark in the presence of the authorised person.
4.4
The form of the certificate is set out at the Annex to this Practice Direction.
4A.1
Where
(a) a form referred to in Practice Direction 5A; or
(b) a form completed or generated by electronic means in accordance with Part 41 FPR,
(c) a document other than a form referred to in sub-paragraph (a) or (b), such as a witness statement
makes provision for an electronic signature of a statement of truth, references in this Practice Direction to “sign”, “signs”, “signed” and “signing” are to be read as including an electronic signature. An electronic signature could, for example, be in the form of the following being included next to a statement of truth: a tick box, a printed name, an image of a signature or a digital signature generated by commercial software. (Section 7 of the Electronic Communications Act 2000 provides for the use of an electronic signature in an electronic communication.)
4A.2
Paragraph 4A.1 is subject to any direction of the court on a case by case basis that the signature on a given statement of truth must be in a specified form, for example by being handwritten.
To the topConsequences of failure to verify
5.1
If a statement of case is not verified by a statement of truth, the statement of case will remain effective unless it is struck out, but a party may not rely on the contents of a statement of case as evidence until it has been verified by a statement of truth.
5.2
Any party may apply to the court for an order that unless within such period as the court may specify the statement of case is verified by the service of a statement of truth, the statement of case will be struck out.
5.3
The usual order for the costs of an application referred to in paragraph 5.2 will be that the costs be paid by the party who had failed to verify, in any event and immediately.
To the topPenalty
6.
Attention is drawn to rule 17.6 which sets out the consequences of verifying a statement of case containing a false statement without an honest belief in its truth, and to the procedures set out in Part 37 (Applications and proceedings in relation to contempt of court).
To the topAnnex
Certificate to be used where a person is unable to read or sign a document to be verified by a statement of truth
I certify that I [name and address of authorised person] have read the contents of this document and the declaration of truth to the person signing the document [if there are exhibits, add ‘and explained the nature and effect of the exhibits referred to in it’] who appeared to understand (a) the document and approved its content as accurate and (b) the declaration of truth and the consequences of making a false declaration, and made his or her mark in my presence.
This practice direction supplements CPR Part 17
Contents of this Practice Direction
A party applying for an amendment will usually be responsible for the costs of and arising from the amendment.
Applications to amend where the permission of the court is required
1.1 The application may be dealt with at a hearing or, if rule 23.8 applies, without a hearing.
1.2 When making an application to amend a statement of case, the applicant should file with the court:
(1) the application notice, and
(2) a copy of the statement of case with the proposed amendments.
1.3 Where permission to amend has been given, the applicant should within 14 days of the date of the order, or within such other period as the court may direct, file with the court the amended statement of case.
1.4 The amended statement of case should be verified by a statement of truth unless the court orders otherwise.
1.5 A copy of the order and the amended statement of case should be served on every party to the proceedings, unless the court orders otherwise.
To the topGeneral
2.1 The amended statement of case and the court copy of it should be endorsed as follows:
(1) where the court’s permission was required:
Amended [Particulars of Claim or as may be] by Order of [Master …………][District Judge…… or as may be] [Legal Adviser] dated……………
(2) Where the court’s permission was not required:
Amended [Particulars of Claim or as may be] under CPR [rule 17.1(1) or (2)(a)] dated………………
2.2 The statement of case in its amended form need not show the original text. However, where the court thinks it desirable for both the original text and the amendments to be shown, the court may direct that the amendments should be shown either:
(1) by coloured amendments, either manuscript or computer generated, or
(2) by use of a numerical code in a monochrome computer generated document.
2.3 Where colour is used, the text to be deleted should be struck through in colour and any text replacing it should be inserted or underlined in the same colour.
2.4 The order of colours to be used for successive amendments is: (1) red, (2) green, (3) violet and (4) yellow.
(For information about changes to parties see Part 19 and Practice Direction 19A.)
To the topFootnotes
- See Part 22 for information about the statement of truth. Back to text
Updated: Wednesday, 19 February 2020