Made | 26th July 2007 | ||
Laid before Parliament | 27th July 2007 | ||
Coming into force | 1st October 2007 |
Amendments to the Civil Procedure Rules 1998
3.
In Part 2—
"Proceedings before the Court of Protection | Mental Capacity Act 2005[4], s.51"; and |
(b) in rule 2.3(1), for "patient" substitute "protected party".
4.
In Part 6—
Type of document | Nature of party | Persons to be served |
Claim form | Child who is not also a protected party |
"
One of the child's parents or guardians; or if there is no parent or guardian, an adult with whom the child resides or in whose care the child is. |
Claim form | Protected party |
One of the following persons with authority in relation to the protected party as: (i) the attorney under a registered enduring power of attorney, (ii) the donee of a lasting power of attorney, (iii) the deputy appointed by the Court of Protection; or if there is no such person, an adult with whom the protected party resides or in whose care the protected party is. |
Application for an order appointing a litigation friend, where the child or protected party has no litigation friend | Child or protected party | See rule 21.8. |
Any other document | Child or protected party | The litigation friend who is conducting the proceedings on behalf of the child or protected party."; and |
(d) in rule 6.6(2), for "patient" substitute "protected party".
5.
In Part 12—
6.
In rule 14.1(4) and the parenthesis following rule 14.1(4)(b), in each place where it appears, for "patient" substitute "protected party".
7.
For rule 19.9 substitute the rules set out in Schedule 1 to these Rules.
8.
For Part 21 substitute Part 21 (children and protected parties) as set out in Schedule 2 to these Rules.
9.
In rule 30.7, for "patient" substitute "protected party".
10.
In rule 32.13(3)(e), for "patient" substitute "protected party".
11.
For the parenthesis following rule 36.9(2) substitute—
12.
In rule 39.2(3)(d), for "patient" substitute "protected party".
13.
In rule 45.10(2)(c), for "patient" substitute "protected party".
14.
In Part 46—
(c) in rule 46.3(2), for "£250" substitute "£345"; and
(d) in rule 46.3(4), for "£350" substitute "£485".
15.
In Part 47—
16.
In Part 48—
17.
For rule 49(2) substitute—
18.
In Part 52—
"Statutory appeals – court's power to hear any person | Rule 52.12A"; |
(b) at the end of the table of contents, insert—
"IV STATUTORY RIGHTS OF APPEAL | |
Appeals under the Law of Property Act 1922[8] | Rule 52.18 |
Appeals from certain tribunals | Rule 52.19 |
Appeals under certain planning legislation | Rule 52.20"; |
(c) after rule 52.12, insert—
(2) An application under paragraph (1) must be made promptly."; and
Appeals under the Law of Property Act 1922
52.18.
An appeal lies to the High Court against a decision of the Secretary of State under paragraph 16 of Schedule 15 to the Law of Property Act 1922[9].
Appeals from certain tribunals
52.19.
—(1) A person who was a party to proceedings before a tribunal referred to in section 11(1) of the Tribunals and Inquiries Act 1992[10] and is dissatisfied in point of law with the decision of the tribunal may appeal to the High Court.
(2) The tribunal may, of its own initiative or at the request of a party to the proceedings before it, state, in the form of a special case for the decision of the High Court, a question of law arising in the course of the proceedings.
Appeals under certain planning legislation
52.20.
—(1) Where the Secretary of State has given a decision in proceedings on an appeal under Part VII of the Town and Country Planning Act 1990[11] against an enforcement notice—
may appeal to the High Court against the decision on a point of law.
(2) Where the Secretary of State has given a decision in proceedings on an appeal under Part VIII of that Act against a notice under section 207 of that Act—
may appeal to the High Court against the decision on a point of law.
(3) Where the Secretary of State has given a decision in proceedings on an appeal under section 39 of the Planning (Listed Buildings and Conservation Areas) Act 1990[12] against a listed building enforcement notice—
may appeal to the High Court against the decision on a point of law.".
19.
In Part 65—
"
VI DRINKING BANNING ORDERS UNDER THE VIOLENT CRIME REDUCTION ACT 2006 Scope of this Section and interpretation |
Rule 65.31 |
Application where the relevant authority is a party in principal proceedings | Rule 65.32 |
Application where the relevant authority is not a party in principal proceedings | Rule 65.33 |
Application by a relevant authority to join a person to the principal proceedings | Rule 65.34 |
Evidence | Rule 65.35 |
Application for an interim order | Rule 65.36 |
VII PARENTING ORDERS UNDER THE ANTI-SOCIAL BEHAVIOUR ACT 2003 | |
Scope of this Section and interpretation | Rule 65.37 |
Applications for parenting orders | Rule 65.38 |
Applications by the relevant authority to be joined to proceedings | Rule 65.39 |
Applications by the relevant authority to join a parent to proceedings | Rule 65.40 |
Evidence | Rule 56.41"; |
(b) at the end of rule 65.1(e), for "." substitute ";";
(c) after rule 65.1(e), insert—
(d) in rule 65.8—
(f) after rule 65.10(1), insert—
(g) after rule 65.36, insert—
Scope of this Section and interpretation
65.37.
—(1) This Section of this Part applies in relation to applications for parenting orders under sections 26A and 26B of the Anti-social Behaviour Act 2003 by a relevant authority.
(2) In this Section—
Applications for parenting orders
65.38.
—(1) Subject to paragraph (2)—
(2) Where the relevant authority becomes aware of the circumstances that lead it to apply for an order after its claim is issued or its defence filed, the application must be made by application notice as soon as possible thereafter.
(3) Where the application is made by application notice, it must normally be made on notice to the person against whom the order is sought.
Applications by the relevant authority to be joined to proceedings
65.39.
—(1) Where the relevant authority is not a party to the proceedings—
(2) The applications—
Applications by the relevant authority to join a parent to proceedings
65.40.
—(1) An application under section 26C(3) of the 2003 Act by a relevant authority which is a party to the proceedings to join a parent to those proceedings must be made—
(2) Rule 19.2 does not apply in relation to an application made by a relevant authority under section 26C(3) of the 2003 Act to join a parent to the proceedings.
(3) The application notice must contain—
(4) The application must normally be made on notice to the person against whom the order is sought.
Evidence
65.41.
An application under section 26A, 26B or 26C of the 2003 Act must be accompanied by written evidence.".
20.
The following are revoked—
Transitional provisions
21.
—(1) The amendments to Part 19 made by rule 7 of these Rules apply as follows—
(d) rule 19.9D applies to a derivative claim that arises in the course of other proceedings only if—
(e) rules 19.9E and 19.9F apply to a derivative claim only if rule 19.9A, 19.9B or 19.9C also applies to the claim.
(2) The rules of court relating to a derivative claim (within the meaning of those rules) in force immediately before 1st October 2007 apply as if they had not been amended to any derivative claim in respect of which the claim form was issued before 1st October 2007.
22.
—(1) The amendments to Part 46 made by rule 14(b), (c) and (d) of these Rules only apply where the hearing of the fast track trial commences on or after 1st October 2007.
(2) Where the hearing of the fast track trial commences before 1st October 2007, the rules of court relating to the amount of fast track trial costs which the court may award that were in force immediately before 1st October 2007 apply as if they had not been amended.
Sir Anthony Clarke, M.R.
Martin Moore-Bick, L.J.
Rupert Jackson, J.
Michael Briggs, J.
HHJ Stephen Oliver-Jones Q.C.
Master Stephen Whitaker
District Judge Carlos Dabezies
District Judge Robert Hill
David di Mambro
Philip Rainey
Richard Walford
Peter Candon
Andrew Parker
I allow these Rules
Jack Straw
Lord Chancellor
26th July 2007
(2) A derivative claim must be started by a claim form.
(3) The company, body corporate or trade union for the benefit of which a remedy is sought must be made a defendant to the claim.
(4) After the issue of the claim form, the claimant must not take any further step in the proceedings without the permission of the court, other than—
Derivative claims under Chapter 1 of Part 11 of the Companies Act 2006 – application for permission
19.9A.
—(1) In this rule—
(2) When the claim form for a derivative claim is issued, the claimant must file—
(3) The claimant must not make the company a respondent to the permission application.
(4) Subject to paragraph (7), the claimant must notify the company of the claim and permission application by sending to the company as soon as reasonably practicable after the claim form is issued—
(5) The claimant may send the notice and documents required by paragraph (4) to the company by any method permitted by Part 6 as if the notice and documents were being served on the company.
(6) The claimant must file a witness statement confirming that the claimant has notified the company in accordance with paragraph (4).
(7) Where notifying the company of the permission application would be likely to frustrate some party of the remedy sought, the court may, on application by the claimant, order that the company need not be notified for such period after the issue of the claim form as the court directs.
(8) An application under paragraph (7) may be made without notice.
(9) Where the court dismisses the claimant's permission application without a hearing, the court will notify the claimant and (unless the court orders otherwise) the company of that decision.
(10) The claimant may ask for an oral hearing to reconsider the decision to dismiss the permission application, but the claimant—
(11) Where the court dismisses the permission application at a hearing pursuant to paragraph (10), it will notify the claimant and the company of its decision.
(12) Where the court does not dismiss the application under section 261(2) of the Act, the court will—
Derivative claims under Chapter 1 of Part 11 of the Companies Act 2006 – members of companies taking over claims by companies or other members
19.9B.
—(1) This rule applies to proceedings under section 262(1) or 264(1) of the Companies Act 2006.
(2) The application for permission must be made by an application notice in accordance with Part 23.
(3) Rule 19.9A (except for paragraphs (1), (2) and (4)(b) of that rule, and paragraph (12)(b) so far as it applies to the claim form) applies to an application under this rule and references to the claimant in rule 19.9A are to be read as references to the person who seeks to take over the claim.
Derivative claims – other bodies corporate and trade unions
19.9C.
—(1) This rule sets out the procedure where—
is alleged to be entitled to a remedy; and
(b) either—
(2) The member who starts, or seeks to take over, the claim must apply to the court for permission to continue the claim.
(3) The application for permission must be made by an application notice in accordance with Part 23.
(4) The procedure for applications in relation to companies under section 261, 262 or 264 (as the case requires) of the Companies Act 2006 applies to the permission application as if the body corporate or trade union were a company.
(5) Rule 19.9A (except for paragraphs (1), (2) and (4)(b) of that rule, and paragraph (12)(b) so far as it applies to the claim form) also applies to the permission application as if the body corporate or trade union were a company.
Derivative claims arising in the course of other proceedings
19.9D.
If a derivative claim (except such a claim in pursuance of an order under section 994 of the Companies Act 2006) arises in the course of other proceedings—
Derivative claims – costs
19.9E.
The court may order the company, body corporate or trade union for the benefit of which a derivative claim is brought to indemnify the claimant against liability for costs incurred in the permission application or in the derivative claim or both.
Derivative claims – discontinuance and settlement
19.9F.
Where the court has given permission to continue a derivative claim, the court may order that the claim may not be discontinued or settled without the permission of the court."
Scope of this Part | Rule 21.1 |
Requirement for a litigation friend in proceedings by or against children and protected parties | Rule 21.2 |
Stage of proceedings at which a litigation friend becomes necessary | Rule 21.3 |
Who may be a litigation friend without a court order | Rule 21.4 |
How a person becomes a litigation friend without a court order | Rule 21.5 |
How a person becomes a litigation friend by court order | Rule 21.6 |
Court's power to change a litigation friend and to prevent a person acting as a litigation friend | Rule 21.7 |
Appointment of a litigation friend by court order- supplementary | Rule 21.8 |
Procedure where appointment of a litigation friend ceases | Rule 21.9 |
Compromise etc. by or on behalf of a child or protected party | Rule 21.10 |
Control of money recovered by or on behalf of a child or protected party | Rule 21.11 |
Expenses incurred by a litigation friend | Rule 21.12 |
Appointment of a guardian of a child's estate | Rule 21.13 |
(2) In this Part—
Requirement for a litigation friend in proceedings by or against children and protected parties
21.2.
—(1) A protected party must have a litigation friend to conduct proceedings on his behalf.
(2) A child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under paragraph (3).
(3) The court may make an order permitting a child to conduct proceedings without a litigation friend.
(4) An application for an order under paragraph (3)—
(5) Where—
the court may appoint a person to be the child's litigation friend.
Stage of proceedings at which a litigation friend becomes necessary
21.3.
—(1) This rule does not apply where the court has made an order under rule 21.2(3).
(2) A person may not, without the permission of the court—
How a person becomes a litigation friend without a court order
21.5.
—(1) If the court has not appointed a litigation friend, a person who wishes to act as a litigation friend must follow the procedure set out in this rule.
(2) A deputy appointed by the Court of Protection under the 2005 Act with power to conduct proceedings on the protected party's behalf must file an official copy(GL) of the order of the Court of Protection which confers his power to act either—
(3) Any other person must file a certificate of suitability stating that he satisfies the conditions specified in rule 21.4(3) either—
(4) The litigation friend must—
How a person becomes a litigation friend by court order
21.6.
—(1) The court may make an order appointing a litigation friend.
(2) An application for an order appointing a litigation friend may be made by—
(3) Where—
(2) An application for an order under paragraph (1) must be supported by evidence.
(3) The court may not appoint a litigation friend under this rule unless it is satisfied that the person to be appointed satisfies the conditions in rule 21.4(3).
Appointment of a litigation friend by court order – supplementary
21.8.
—(1) An application for an order under rule 21.6 or 21.7 must be served on every person on whom, in accordance with rule 6.6 (service on parent, guardian etc.), the claim form must be served.
(2) Where an application for an order under rule 21.6 is in respect of a protected party, the application must also be served on the protected party unless the court orders otherwise.
(3) An application for an order under rule 21.7 must also be served on—
(4) On an application for an order under rule 21.6 or 21.7, the court may appoint the person proposed or any other person who satisfies the conditions specified in rule 21.4(3).
Procedure where appointment of a litigation friend ceases
21.9.
—(1) When a child who is not a protected party reaches the age of 18, the litigation friend's appointment ceases.
(2) Where a protected party regains or acquires capacity to conduct the proceedings, the litigation friend's appointment continues until it is ended by court order.
(3) An application for an order under paragraph (2) may be made by—
(4) The child or protected party in respect of whom the appointment to act has ceased must serve notice on the other parties—
(5) If the child or protected party does not serve the notice required by paragraph (4) within 28 days after the day on which the appointment of the litigation friend ceases the court may, on application, strike out(GL) any claim brought by or defence raised by the child or protected party.
(6) The liability of a litigation friend for costs continues until—
Compromise etc. by or on behalf of a child or protected party
21.10.
—(1) Where a claim is made—
no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.
(2) Where—
the claim must—
(3) In proceedings to which Section II of Part 45 applies, the court will not make an order for detailed assessment of the costs payable to the child or protected party but will assess the costs in the manner set out in that Section.
Control of money recovered by or on behalf of a child or protected party
21.11.
—(1) Where in any proceedings—
the money will be dealt with in accordance with directions given by the court under this rule and not otherwise.
(2) Directions given under this rule may provide that the money shall be wholly or partly paid into court and invested or otherwise dealt with.
(3) Where money is recovered by or on behalf of a protected party or money paid into court is accepted by or on behalf of a protected party, before giving directions in accordance with this rule, the court will first consider whether the protected party is a protected beneficiary.
Expenses incurred by a litigation friend
21.12.
—(1) In proceedings to which rule 21.11 applies, a litigation friend who incurs expenses on behalf of a child or protected party in any proceedings is entitled on application to recover the amount paid or payable out of any money recovered or paid into court to the extent that it—
(2) Expenses may include all or part of—
(3) No application may be made under the rule for expenses that —
(4) In deciding whether the expenses were reasonably incurred and reasonable in amount, the court will have regard to all the circumstances of the case including the factors set out in rule 44.5(3).
(5) When the court is considering the factors to be taken into account in assessing the reasonableness of the expenses, it will have regard to the facts and circumstances as they reasonably appeared to the litigation friend or to the child's or protected party's legal representative when the expense was incurred.
(6) Where the claim is settled or compromised, or judgment is given, on terms that an amount not exceeding £5,000 is paid to the child or protected party, the total amount the litigation friend may recover under paragraph (1) must not exceed 25% of the sum so agreed or awarded, unless the court directs otherwise. Such total amount must not exceed 50% of the sum so agreed or awarded.
Appointment of a guardian of a child's estate
21.13.
—(1) The court may appoint the Official Solicitor to be a guardian of a child's estate where—
(2) The court may not appoint the Official Solicitor under this rule unless—
(3) The Official Solicitor's appointment may continue only until the child reaches 18."
These amendments come into force on 1st October 2007.
[2] Relevant amendments are made by the Constitutional Reform Act 2005 (c. 4), Schedule 4, paragraph 265.back
[3] S.I. 1998/3132. There are relevant amendments in S.I. 2000/221, 2000/940, 2000/1317, 2001/1388, 2001/4015, 2002/3219, 2003/2113, 2004/1306, 2004/3419, 2005/2292 and 2006/3435.back
[9] 1922 c. 16. Schedule 15, paragraph 16 was amended by the Law of Property (Amendment) Act 1924 (c. 5), section 2 and Schedule 2, paragraph 5(8) and S.I. 2002/794, article 5(1) and Schedule 1, paragraph 1(d).back
[14] 2003 c. 38. Section 24 of the Police and Justice Act 2006 (c. 48) inserts sections 26A, 26B and 26C into the Anti-social Behaviour Act 2003.back