The County Court Rules 1981

ORDER 16TRANSFER OF PROCEEDINGS

PART IFROM ONE COUNTY COURT TO ANOTHER

General power of transfer

1.  If the judge or registrar of any court is satisfied that—

(a)any action or matter in that court could be more conveniently or fairly heard and determined in some other court, or

(b)any default action in that court could be more conveniently or fairly disposed of under Order 9, rule 3(3), in some other court, or

(c)any pre-trial review or interlocutory application in an action or matter in that court could be more conveniently or fairly conducted or heard in some other court, or

(d)any proceedings for the enforcement of a judgment or order in an action or matter in that court could be more conveniently or fairly taken in some other court, or

(e)any payments required to be made into court under a judgment or order in an action or matter in that court could be more conveniently made into some other court,

then, subject to rule 3 and without prejudice, as respects paragraph (d), to Order 25, rule 2, the judge or registrar may order the action or matter to be transferred to that other court.

Proceedings commenced in wrong court

2.  Where proceedings are commenced in the wrong court, the judge or registrar may, subject to rule 3,—

(a)transfer the proceedings to the court in which they ought to have been commenced, or

(b)order the proceedings to continue in the court in which they have been commenced, or

(c)order the proceedings to be struck out.

Saving for statutory provisions

3.  Where an action or matter is required by any Act or statutory instrument other than these rules to be commenced in a particular court, nothing in rule 1 or 2 shall authorise the making of an order for the transfer of the action or matter to, or its continuance in, another court.

Making and carrying out of order for transfer

4.—(1) Subject to paragraph (2), an order for the transfer of proceedings under rule 1 or 2 may be made by the judge or, as the case may be, the registrar of his own motion or on the application of any party on notice to all other parties.

(2) A defendant who does not reside or carry on business within the district of the court in which an action has been commenced may, after delivering a defence at the court office, apply ex parte in writing to that court for an order under rule 1(a), (b) or (c) transferring the action to the court for the district in which he resides or carries on business; and the judge or registrar of the first-mentioned court may, if he thinks fit, grant the application after considering any representations which he may give the plaintiff an opportunity of making.

(3) Where a transfer is ordered under any of the foregoing provisions the proper officer of the court in which the action or matter is pending shall give notice of the transfer to all parties and shall send to the proper officer of the other court a certified copy of all the relevant entries in the records of the first-mentioned court.

(4) If the transfer is ordered under rule 1(a), (b) or (c) or rule 2(a), or the proper officer of the other court so requests, the proper officer sending the certified copy mentioned in paragraph (3) shall also send all the documents in his custody relating to the action or matter.

(5) On receipt of the certified copy and any documents sent under paragraph (4) the proper officer of the court to which the action or matter has been transferred shall, if the transfer was ordered under rule 1(a), (b) or (c), fix a day for the pre-trial review or, as may be appropriate, the hearing or disposal of the action or matter and send notice thereof in the appropriate form to all the parties.

In this paragraph a day for the hearing of the action or matter means, in the case of an action or matter which is to be referred to the arbitration of the judge or registrar, the day on which the arbitration will be proceeded with.

(6) All subsequent proceedings shall be taken in the court to which the action or matter has been transferred except that, where the transfer was ordered under rule 1(d) or (e), any application or appeal under any of the provisions of Order 37 shall be made to the court in which the judgment or order was given or made.

Transfer of money in court

5.—(1) The judge or registrar of any county court may, at any time, on application or of his own motion, order any money held by that court under Order 10, rule 11(1), or section 174 of the Act to be transferred to another county court if he is of opinion that it may be more conveniently dealt with in that court.

(2) Where such an order is made, the proper officer of the court holding the money shall transfer it to the other court in accordance with the County Court Funds Rules and shall send to the proper officer of the other court a certified copy of the relevant entries in the records of the first-mentioned court and, if so requested by that officer, all the documents in his custody relating to the proceedings.

PART IIFROM THE HIGH COURT TO A COUNTY COURT

General provisions on transfer from High Court

6.—(1) Where by an order of the High Court—

(a)any proceedings are to be transferred to a county court, or

(b)an issue is directed to be tried in a county court,

the proper officer of the county court, on receipt of the documents mentioned in section 77(1) or 146(2) of the Act, as the case may be, shall enter the proceedings or issue in the records of the court and shall fix a day for the hearing of the proceedings or issue or, if he thinks fit, a day for a pre-trial review and give 21 days' notice thereof to every party.

(2) The party lodging or causing to be lodged with the proper officer the documents aforesaid shall at the same time file—

(a)a statement of the names and addresses of the parties and of their solicitors;

(b)if he is the plaintiff and has not indorsed a statement of claim on the writ or served a statement of claim in the High Court, particulars of his claim, together with a copy for each defendant;

(c)if he is the defendant and only a counterclaim is transferred and the counterclaim has not been served in the High Court, particulars of the counterclaim, together with a copy for the plaintiff;

(d)where money has been paid into the High Court, a copy of the notice of payment into court, and

(e)a copy of any other pleading served but not filed in the High Court.

(3) Where—

(a)a statement of claim has been indorsed on the writ or served in the High Court but no defence has been served there, or

(b)particulars of claim have been filed in the county court pursuant to paragraph (2)(b),

the defendant shall, within 14 days after receipt of the notice given under paragraph (1), deliver at the court office a defence and, if he has a counterclaim, particulars of the counterclaim, together with a copy for the plaintiff.

(4) Where only a counterclaim is transferred, paragraph (3) shall apply, with the necessary modifications, to the counterclaim as it applies to a claim.

(5) On receipt of any document filed by the plaintiff pursuant to paragraph (2)(b) or by the defendant pursuant to paragraph (2)(c) or (3), the proper officer shall send a copy to each defendant or, as the case may be, to the plaintiff.

(6) For the purpose of enabling a party to obtain further particulars, Order 6, rule 7, Order 9, rule 11(2) to (4), and Order 13, rule 2(2), shall apply in relation to—

(a)a statement of claim indorsed on the writ or served in the High Court,

(b)particulars of claim or counterclaim filed pursuant to paragraph (2), or

(c)a defence or counterclaim filed pursuant to paragraph (3),

as they apply in relation to particulars of claim, defence or counterclaim delivered in an action commenced in the county court.

Interpleader proceedings under execution

7.—(1) In relation to interpleader proceedings under an execution which are ordered to be transferred from the High Court under section 68 of the Act, rule 6 shall have effect subject to the provisions of this rule.

(2) Notice of the hearing or pre-trial review of the proceedings shall be given by the proper officer to the sheriff as well as to every other party to the proceedings.

(3) The claimant shall, within 8 days of the receipt by him of the notice referred to in paragraph (2), file in triplicate particulars of any goods alleged to be his property and the grounds of his claim and the proper officer shall send a copy to the execution creditor and to the sheriff, but the judge may hear the proceedings or, as the case may be, the registrar may proceed with the pre-trial review, if he thinks fit, notwithstanding that the particulars have not been filed.

(4) Subject to any directions in the order of the High Court, damages may be claimed against the execution creditor in the same manner as in interpleader proceedings commenced in a county court.

(5) On any day fixed for the preliminary consideration of the proceedings or for the hearing of any application by the sheriff or other party for directions the court may order the sheriff—

(a)to postpone the sale of the goods seized, or

(b)to remain in possession of such goods until the hearing of the proceedings, or

(c)to hand over possession of such goods to the registrar,

and, where a direction is given under sub-paragraph (c), the registrar shall be allowed reasonable charges for keeping possession of the goods, not exceeding those which might be allowed to the sheriff, and, if the registrar is directed to sell the goods, such charges for the sale as would be allowed under an execution issued by the county court.

(6) No order made in the proceedings shall prejudice or affect the rights of the sheriff to any proper charges and the judge may make such order with respect to them as may be just.

(7) The charges referred to in paragraphs (5) and (6) shall ultimately be borne in such manner as the judge shall direct.

(8) The order made at the hearing of the proceedings shall direct how any money in the hands of the sheriff is to be disposed of.

Money for benefit of person under disability

8.—(1) Where money has been received by a county court under section 174 of the Act for the benefit of a person under disability, the registrar shall notify his next friend or guardian ad litem, as the case may be.

(2) Order 10, rule 11(2) and (3), shall apply in relation to the money and any interest thereon as if the money had been recovered in proceedings in the county court.

(3) The court may direct that any costs or expenses incurred in connection with any of the matters referred to in the previous paragraphs of this rule shall be paid out of the money and any interest thereon and that any investments may be sold for that purpose.

(4) Where an order has been made by the High Court for payment of any costs to a solicitor out of the money, the amount of such costs, if not paid before the money was received by the county court, shall, on the application of the solicitor, supported by the certificate of the taxing officer of the High Court, be paid out of the money received, and any investments may be sold for that purpose if the court thinks fit.

(5) The court may at any time require the next friend or guardian ad litem to obtain and produce the writ, pleadings and any other documents used in the proceedings in the High Court.

PART IIIFROM A COUNTY COURT TO THE HIGH COURT

Action for recovery of land

9.  An application to the High Court under section 49 of the Act for the transfer of an action for recovery of land to the High Court shall be made within 14 days after the service of the summons on the defendant.

Objection to trial in county court

10.—(1) Notice of objection under section 44 of the Act to an action being tried in a county court shall be given to the plaintiff within 14 days after service of the summons on the defendant.

(2) An application for the certificate required by subsection (2)(b) of the said section 44 shall be made to the judge on notice to the proper officer and the plaintiff, accompanied by an affidavit showing the important question of law or fact which the defendant alleges is likely to arise.

(3) If the certificate is granted and the security required by subsection (2)(a) of the said section 44 is given, the proper officer shall give notice to that effect to the plaintiff.

Procedure on transfer or removal

11.  Where an order is made by the High Court or a county court for the transfer or removal of any proceedings from a county court to the High Court, the proper officer shall—

(a)send notice of the transfer or removal to all parties to the proceedings, and

(b)make copies of all entries in the records of the court relating to the proceedings and send them, certified by the registrar, to the proper officer of the High Court, together with—

(i)all documents filed in the proceedings,

(ii)the order of transfer if made by the county court, and

(iii)in the case of legitimacy proceedings, a certificate by the registrar showing the state of the proceedings and the steps which have been taken therein.

Certiorari or prohibition

12.  A party obtaining from the High Court, on an ex parte application, an order giving leave to make an application for an order of certiorari to remove proceedings from a county court or an order of prohibition to any such court shall forthwith serve a copy of the order on the opposite party and on the proper officer of the county court.