The County Court Rules 1981

ORDER 13APPLICATIONS AND ORDERS IN THE COURSE OF PROCEEDINGS

General provisions

1.—(1) Except as otherwise provided, the following paragraphs of this rule shall have effect in relation to any application authorised by or under any Act or rule to be made in the course of an action or matter before or after judgment.

(2) Unless allowed or authorised to be made ex parte, the application shall be made on notice, which shall be filed and served on the opposite party not less than two days before the hearing of the application.

(3) Where the application is made ex parte, notice of the application shall be filed a reasonable time before the application is heard, unless the court otherwise directs.

(4) Unless allowed or authorised to be made otherwise, every application shall be heard in chambers.

(5) Where any party to the application fails to attend on the hearing the court may proceed in his absence if, having regard to the nature of the application, the court thinks it expedient to do so.

(6) The jurisdiction of the court to hear and determine the application may be exercised by the registrar and the applicant shall, unless the judge otherwise directs, make the application to the registrar in the first instance.

(7) Where the application is made to the registrar, he may refer to the judge any matter which he thinks should properly be decided by the judge, and the judge may either dispose of the matter or refer it back to the registrar with such directions as he thinks fit.

(8) The court may, as a condition of granting any application, impose such terms and conditions as it thinks fit, including a term or condition requiring any party to—

(a)give security,

(b)give an undertaking,

(c)pay money into court,

(d)pay all or any part of the costs of the proceedings, or

(e)give a power of re-entry.

(9) Unless the court otherwise directs, the costs of the application shall not be taxed until the general taxation of the costs of the action or matter and, where an earlier taxation is directed, Order 38 shall apply as if the word “claimed” were substituted for the word “recovered” wherever it appears.

(10) An appeal shall lie to the judge from any order made by the registrar on the application and the appeal shall be disposed of in chambers unless the judge otherwise directs.

(11) An appeal under paragraph (10) shall be made on notice, which shall be filed and served on the opposite party within 5 days after the order appealed from or such further time as the judge may allow.

Directions

2.—(1) In any action or matter the court may at any time, on application or of its own motion, give such directions as it thinks proper with regard to any matter arising in the course of the proceedings.

(2) In the exercise of the power conferred by paragraph (1) the court may, in particular, order any party to deliver any pleading or give any particulars which the court thinks necessary for defining the issues in the proceedings and may at the same or any subsequent time direct that the action or matter be dismissed or, as the case may be, the defendant be debarred from defending altogether or that anything in any pleading of which particulars have been ordered be struck out unless the order is obeyed within such time as the court may allow.

(3) Where the same judge is the judge for two or more districts and proceedings which are to be heard and determined by him are pending in the court for one of those districts, the judge or registrar may, in the exercise of the power conferred by paragraph (1), direct that the hearing in those proceedings shall take place in the court for another of those districts, and notice of any such direction shall be given by the proper officer to all parties who were not present when the direction was given.

(4) Where an application under paragraph (1) is made at a time when no day has been fixed for a pre-trial review, the court may, if it thinks it appropriate to do so, treat the hearing of the application as a day fixed for that purpose and the provisions of Order 17 shall apply accordingly.

(5) The provisions of this rule are without prejudice to Order 6, rule 7, Order 9, rule 11, and Order 17, rules 3 and 10.

Adjournment

3.—(1) The court may at any time and from time to time, upon application or of its own motion, by order adjourn or advance the date of the hearing of any proceedings.

(2) Notice of any such adjournment or advancement shall be given by the proper officer to all parties who were not present when the order was made.

(3) If the hearing of any action or matter is adjourned generally, any party may apply to have a day fixed for the hearing and the proper officer shall fix a day and give notice of it to all parties.

(4) If no application is made under paragraph (3) within 12 months of the day on which the order was made adjourning the action or matter generally, the proper officer may give notice to all parties under this paragraph and, unless any party applies within 14 days after receipt of the notice to have a day fixed for the hearing or to have the hearing again adjourned and the application is granted, the action or matter shall be struck out.

Extension or abridgment of time

4.—(1) Except as otherwise provided, the period within which a person is required or authorised by these rules or by any judgment, order or direction to do any act in any proceedings may be extended or abridged by consent of all the parties or by the court on the application of any party.

(2) Any such period may be extended by the court although the application for extension is not made until after the expiration of the period.

Striking out pleadings

5.—(1) The court may at any stage of the proceedings in an action order the whole or any part of any pleading to be struck out or amended on the ground that—

(a)it discloses no reasonable cause of action or defence, as the case may be; or

(b)it is scandalous, frivolous or vexatious; or

(c)it may prejudice, embarrass or delay the fair trial of the action; or

(d)it is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) Any application for an order under paragraph (1) shall be made on notice to the party affected by it.

(3) This rule shall apply with the necessary modifications to a matter as it applies to an action.

Application for injunction

6.—(1) An application for the grant of an injunction may be made by any party to an action or matter before or after the trial or hearing, whether or not a claim for the injunction was included in that party's particulars of claim, originating application, petition, counterclaim or third party notice, as the case may be.

(2) Rule 1(6) shall not apply and, unless the registrar has power under any other provision of these rules to grant the injunction, the application shall be made to the judge.

(3) Where the applicant is the plaintiff and the case is one of urgency, the application may be made ex parte on affidavit but, except as aforesaid, the application must be made on notice, and in any case the affidavit or notice must state the terms of the injunction applied for.

(4) The plaintiff may not make an application before the issue of the summons, originating application or petition by which the action or matter is to be commenced except where the case is one of urgency and in that case—

(a)the affidavit on which the application is made shall show that the action or matter is one which the court to which the application is made has jurisdiction to hear and determine, and

(b)the injunction applied for shall, if granted, be on terms providing for the issue of the summons, originating application or petition in the court granting the application and on such other terms, if any, as the court thinks fit.

(5) Unless otherwise directed, every application not made ex parte shall be heard in open court.

(6) Except where the case is one of urgency, a draft of the injunction shall be prepared beforehand by the party making an application to the judge under paragraph (1) and, if the application is granted, the draft shall be submitted to the judge by whom the application was heard and shall be settled by him.

(7) The injunction, when settled, shall be forwarded to the proper officer for filing.

Application of R.S.C. relating to other interlocutory matters

7.—(1) Subject to the following paragraphs of this rule, the provisions of the R.S.C. with regard to—

(a)the payment into court of money in respect of which the defendant claims a lien on or other right to retain specific property (other than land) which the plaintiff seeks to recover;

(b)the detention, custody, preservation or inspection of any relevant property;

(c)the payment into court or securing of a specific fund which is in dispute in an action or matter;

(d)the delivery up of any relevant goods under section 2 of the Torts (Interference with Goods) Act 1977;

(e)the taking of any sample of or the making of any observation or experiment on any relevant property;

(f)the sale of any relevant property (other than land) which is of a perishable nature or likely to deteriorate if kept or which for any other good reason it is desirable to sell forthwith;

(g)the exercise of the powers conferred by section 21 of the Administration of Justice Act 1969 or section 31 or 32 of the Administration of Justice Act 1970;

(h)the taking or making of any necessary accounts or inquiries,

shall apply in relation to proceedings or, as the case may be, subsequent proceedings in a county court as they apply in relation to proceedings or subsequent proceedings in the High Court.

In this paragraph “relevant property” and “relevant goods” mean property or, as the case may be, goods which is or are the subject matter of an action or matter or as to which any question may arise therein.

(2) Rule 6(3) and (4) shall apply with the necessary modifications to an application for the relief mentioned in sub-paragraph (d) of paragraph (1) as they apply to an application for an injunction.

(3) An application for the exercise of the powers conferred by section 21 of the said Act of 1969 or section 31 of the said Act of 1970 shall be made by originating application and the affidavit in support of the application shall show that the subsequent proceedings are such as the court to which the application is made has jurisdiction to hear and determine.

(4) An application for any other relief mentioned in paragraph (1) shall be made by notice and, in the case of an application for the exercise of the powers conferred by section 32 of the said Act of 1970, the notice shall be served on the person against whom the order is sought.

Security for costs where plaintiff resident out of England and Wales

8.—(1) Where, on the application of a defendant to an action or other proceeding, it appears to the court that the plaintiff is ordinarily resident out of England and Wales, then if, having regard to all the circumstances of the case, the court thinks it reasonable to do so, it may order the plaintiff to give such security for the defendant's costs of the action or other proceeding as it thinks just.

(2) The references in paragraph (1) to a plaintiff and a defendant shall be construed as references to the person (however described on the record) who is in the position of plaintiff or defendant, as the case may be, in the proceedings in question, including proceedings on a counterclaim.

(3) The foregoing paragraphs are without prejudice to the provisions of any enactment by or under which the court is empowered to require security to be given for the costs of any proceedings.

Order for consolidation etc

9.—(1) Where two or more actions or matters are pending in the same county court and it appears to the court—

(a)that some common question of law or fact arises in both or all of them, or

(b)that the rights to relief claimed are in respect of or arise out of the same transaction or series of transactions, or

(c)that for some other reason it is desirable to make an order under this rule,

the court may order that the actions or matters be consolidated or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until the determination of any other of them.

(2) An order under paragraph (1) may be made by the court of its own motion or on the application of any party on notice to all other parties to the actions or matters affected.

Juries

10.—(1) An application for an order for trial with a jury may be made by any party on notice stating the grounds of the application.

(2) Notice shall, if time permits, be given not less than 10 days before the return day, and where notice is given later or where for that or any other reason the application is not heard in time for a jury to be summoned, the judge or registrar may, on such terms as he thinks fit, postpone the trial so as to allow time for a jury to be summoned.

(3) Notice of any order for trial with a jury shall be given by the proper officer to any party who was not present when the order was made.

Assessors

11.—(1) A party to any proceedings who desires an assessor to be summoned to assist the judge at the hearing shall, not less than 14 days before the day fixed for the hearing, file an application in that behalf.

(2) The proper officer shall submit to the judge any application made under paragraph (1) and, if the judge grants the application, the proper officer shall give to the parties notice stating the name of the person proposed to be summoned as assessor.

(3) A party who objects to the person proposed to be summoned as assessor shall, within 4 days after service on him of the notice under paragraph (2), give to the proper officer notice of his objection stating the grounds thereof and on receipt of the notice the proper officer shall fix a day for the hearing of the objection and give notice thereof to the parties including, except in the notice to the party objecting, a statement of the grounds of the objection.

(4) Where no notice of objection is given within the time limited or where an objection has been heard and an assessor has been selected, the applicant shall deposit in the court office such sum as the registrar thinks reasonable in respect of the assessor's fee for the day of hearing and thereupon the proper officer shall summon the assessor.

(5) If an application for an assessor is refused, the proper officer shall give notice of the refusal to the parties.

(6) An order summoning an assessor may be varied or revoked by the judge on application or of his own motion.

(7) An assessor shall be entitled to such fee for attending court as would be allowed on taxation in respect of an expert witness.

(8) Where the hearing of proceedings in which an assessor has been summoned is adjourned, the party on whose application the assessor was summoned shall forthwith deposit in the court office such sum as the registrar thinks reasonable in respect of the assessor's fee for the day of the adjourned hearing.