The County Court Rules 1981

ORDER 42PROCEEDINGS BY AND AGAINST THE CROWN

Application and interpretation

1.—(1) These rules apply to any proceedings, so far as they are civil proceedings to which the Crown is a party, subject to the following rules of this Order.

(2) Except where the context otherwise requires, references in these rules to an action or claim for the recovery of land or other property shall be construed as including references to proceedings against the Crown for an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof.

(3) No rent action shall be brought against the Crown.

(4) In this Order—

“the Act of 1947” means the Crown Proceedings Act 1947;

“civil proceedings by the Crown” and “civil proceedings against the Crown” and “civil proceedings by or against the Crown” have the same respective meanings as in Part II of the Act of 1947 and do not include any of the proceedings specified in section 23(3) of that Act;

“civil proceedings to which the Crown is a party” has the same meaning as it has for the purposes of Part IV of the Act of 1947 by virtue of section 38(4) of that Act.

Venue in proceedings against the Crown

2.—(1) In relation to an action against the Crown Order 4, rule 2, shall have effect as if paragraph (1)(a) thereof were omitted and in relation to an originating application to which the Crown is a respondent Order 4, rule 8, shall have effect as if paragraph (a)(i) thereof were omitted.

(2) For the purposes of Order 40, rule 2, the Crown shall be deemed to reside in the district of every court.

(3) If there is any reasonable doubt as to the court in which any proceedings should be commenced pursuant to Order 4 as modified by this rule, they may be commenced in the court for the district in which the plaintiff or one of the plaintiffs resides or carries on business.

Venue in proceedings for recovery of tax

3.  In the case of proceedings for the recovery of income tax, the cause of action shall, for the purposes of Order 4, rule 2(1)(b), be deemed to have arisen in part at the office of any collector of taxes by whom demand of the sum claimed has been made from the defendant.

Particulars of claim in action against the Crown

4.  The particulars of claim required by Order 6, rule 1, to be filed at the commencement of an action shall, in the case of civil proceedings against the Crown, include a statement of the circumstances in which the Crown's liability is said to have arisen and as to the government department and officers of the Crown concerned.

Subsequent procedure in default action

5.—(1) If in a default action against the Crown the defendant considers that the particulars of claim do not contain a sufficient statement as required by rule 4, he may, before the time for delivering a defence has expired, file two copies of a demand for further information as specified in the demand and thereupon the proper officer shall serve one copy on the plaintiff.

(2) Where the defendant files a demand under paragraph (1), the time for delivering a defence shall not expire until 4 days after the defendant has given notice to the proper officer and the plaintiff that the defendant is satisfied with the information supplied in compliance with the demand or 4 days after the court has, on the application of the plaintiff of which not less than 7 days' notice has been given to the defendant, decided that no further information as to the matters referred to in rule 4 is reasonably required.

(3) Except with the leave of the court, no judgment shall be entered under Order 9, rule 6(1)(a), in a default action against the Crown.

(4) An application for leave under paragraph (3) shall be made on not less than 7 days' notice to the defendant.

(5) No application against the Crown shall be made under Order 9, rule 14.

Subsequent procedure in fixed date action

6.—(1) In the case of a fixed date action against the Crown, Order 3, rule 3(2), shall not apply but on the filing of the documents required by Order 3, rule 3(1), the proper officer shall—

(a)enter a plaint in the records of the court and deliver to the plaintiff a plaint note omitting any reference to a return day;

(b)serve on the defendant a copy of the particulars of claim and a notice of the entry of the plaint and of the effect of paragraphs (3) and (5).

(2) Upon the service of the notice mentioned in paragraph (1)(b) all further proceedings in the action shall be stayed except as provided in this rule.

(3) If the defendant considers that the particulars of claim do not contain a sufficient statement as required by rule 4, he may, within 21 days after service on him of the notice mentioned in paragraph (1)(b), file in the court office two copies of a demand for further information as specified in the demand and thereupon the proper officer shall serve one copy on the plaintiff.

(4) If within the said period the defendant does not file two copies of such a demand, then, subject to paragraph (5), the stay of proceedings provided for by paragraph (2) shall cease to have effect at the end of that period.

(5) If within the said period the defendant files a statement that no such demand will be made, the stay of proceedings provided for by paragraph (2) shall cease to have effect forthwith.

(6) If within the said period the defendant files two copies of such a demand, the stay of proceedings provided for by paragraph (2) shall cease to have effect when the defendant gives notice to the proper officer and the plaintiff that the defendant is satisfied with the information supplied in compliance with the demand or when the court decides, on the application of the plaintiff of which not less than 7 days' notice has been given to the defendant, that no further information as to the matters referred to in rule 4 is reasonably required.

(7) When the stay of proceedings provided for by paragraph (2) ceases to have effect, the proper officer shall fix a return day and give notice thereof to the plaintiff and shall proceed in accordance with Order 3, rule 3(2)(b), (c) (omitting the words from the beginning to “and also”) and (d)(ii).

Service on the Crown

7.—(1) Order 8 and any other provision of these rules relating to service of process out of England and Wales shall apply in relation to civil proceedings by the Crown but shall not apply in relation to civil proceedings against the Crown.

(2) Personal service of any document which is to be served on the Crown for the purpose of or in connection with civil proceedings by or against the Crown shall not be requisite.

(3) Any such document may be served on the Crown—

(a)by leaving the document at the office of the person to be served in accordance with section 18 of the Act of 1947, or any agent whom he has nominated for the purpose, but in either case with a member of the staff of that person or agent, or

(b)by posting it in a prepaid envelope addressed to the person to be served in accordance with the said section 18 or to any such agent as aforesaid.

Summary judgment in Admiralty actions etc

8.—(1) In an Admiralty action no judgment shall be entered against the Crown under Order 40, rule 8, except with the leave of the court to be obtained on application of which not less than 7 days' notice has been given to the Crown.

(2) No order shall be made against the Crown by the court of its own motion under Order 13, rule 2(2), or Order 17, rule 4.

Counterclaim in proceedings by or against the Crown

9.—(1) In proceedings by the Crown for the recovery of taxes, duties or penalties the defendant shall not be entitled to avail himself of any set-off or counterclaim and accordingly the form of summons to be served on the defendant and the form of admission, defence or counterclaim to be annexed to the summons shall omit any reference to a counterclaim.

(2) In proceedings of any other nature by the Crown the defendant shall not be entitled to avail himself of any set-off or counterclaim arising out of a right or claim to repayment in respect of any taxes, duties or penalties.

(3) In any proceedings by the Crown the defendant shall not be entitled, and in any proceedings against the Crown the Crown shall not be entitled, without the leave of the court to be obtained on application of which not less than 7 days' notice has been given to the plaintiff, to make any counterclaim or plead any set-off if—

(a)the Crown sues or is sued in the name of a Government department and the subject-matter of the set-off or counterclaim does not relate to that department; or

(b)the Crown sues or is sued in the name of the Attorney-General.

Adjustment of liability under judgment for taxes

10.  Where the Crown has obtained a judgment for taxes but subsequently the tax liability is reduced, whether by reason of an appeal against an assessment or otherwise, and the Crown has given notice of the reduction to the court and to the debtor, the sum remaining unsatisfied under the judgment shall be reduced accordingly, but the amount of the reduction shall not rank as a payment under the judgment.

Third party notice against the Crown

11.—(1) Notwithstanding anything in Order 12, rule 1(1), a third party notice (including a notice issuable by virtue of Order 12, rule 6) for service on the Crown shall not be issued without the leave of the court to be obtained on application of which 7 days' notice has been given to the Crown and to the plaintiff.

(2) Leave shall not be granted under paragraph (1) unless the court is satisfied that the Crown is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the departments and officers of the Crown concerned.

Discovery against the Crown

12.—(1) In any civil proceedings to which the Crown is a party any order of the court made under the powers conferred by section 28(1) of the Act of 1947 shall be construed as not requiring disclosure of the existence of any document the existence of which would, in the opinion of a Minister of the Crown, be injurious to the public interest.

(2) Where in any such proceedings an order of the court directs that a list of documents made in answer to an order for discovery against the Crown shall be verified by affidavit, the affidavit shall be made by such officer of the Crown as the court may direct.

Execution and satisfaction of orders against Crown

13.—(1) Nothing in Orders 25 to 32 shall apply in respect of any order against the Crown.

(2) A certificate issued under section 25(1) of the Act of 1947 shall be in the form used under Order 22, rule 8, with such variations as the circumstances of the case may require.

Attachment of debts, etc

14.—(1) No order for the attachment of a debt under Order 30 or for the appointment of a receiver under Order 32 shall be made or have effect in respect of any money due or accruing due, or alleged to be due or accruing due, from the Crown.

(2) Where such an order could have been obtained in a county court if the money had been due or accruing due from a subject, an application may be made to that county court in accordance with Order 13, rule 1, for an order under section 27 of the Act of 1947 restraining the person to whom the money is payable by the Crown from receiving the money and directing payment to the applicant or to the receiver.

(3) The application shall be supported by an affidavit setting out the facts giving rise to it and in particular identifying the particular debt from the Crown in respect of which it is made.

(4) Notice of the application together with a copy of the affidavit shall be served on the Crown and, unless the court otherwise directs, on the person to be restrained or his solicitor at least 7 days before the day fixed for the hearing.

(5) Order 30, rules 4 and 6 to 9, shall apply, with the necessary modifications, in relation to an application under the said section 21 as they apply in relation to an application for an order under Order 30, rule 1, except that the court shall not have power to issue execution against the Crown.