The Rules of the Supreme Court (Northern Ireland) (Revision) 1980

• (a) any caveat in force at the commencement of proceedings by way of citation or motion shall, unless withdrawn pursuant to paragraph (9) of this rule, remain in force until an application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such proceedings, and upon such application any caveat entered by a party who had notice of the proceedings shall cease to have effect;

• (b) any caveat in respect of which an appearance to a warning has been entered shall remain in force until the commencement of a probate action;

• (c) the commencement of a probate action shall, whether or not any caveat has been entered, operate to prevent the sealing of a grant (other than a grant under Article 6 of the Order) until application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such action, and upon such application any caveat entered by a party who had notice of the action, or by a caveator who was given notice under paragraph (13) of this rule, shall cease to have effect.

• (15) Except with the leave of the Master, no further caveat may be entered by or on behalf of any caveator whose caveat has ceased to have effect under paragraph (12) or (14) of this rule.

• (16) In this rule “grant” includes a grant made by any Court outside Northern Ireland which is produced for resealing by the High Court.

Citation

44

• (1) Every citation shall issue from the Office and shall be settled by the Master before being issued.

• (2) Every averment in a citation, and such other information as the Master may require, shall be verified by an affidavit sworn by the person issuing the citation (hereinafter called “the citor”) or, if there are two or more citors, by one of them:

Provided that the Master may in special circumstances accept an affidavit sworn by the citor’s solicitor.

• (3) The citor shall enter a caveat before issuing a citation.

• (4) Every citation shall be served personally on the person cited unless the Master, on cause shown by affidavit, directs some other mode of service, which may include notice by advertisement.

• (5) Every will referred to in a citation shall be lodged in the Office or a branch office before the citation is issued, except where the will is not in the citor’s possession and the Master is satisfied that it is impracticable to require it to be lodged.

• (6) A person who has been cited to appear may, within eight days of service of the citation upon him inclusive of the day of such service, or at any time therafter if no application has been made by the citor under paragraph (5) of rule 45 or paragraph (2)(a) of rule 46, enter an appearance in the Ofifce in form 5 and make an entry in the appropriate book, and shall forthwith thereafter serve on the citor a copy of the form of appearance.

Citation to accept or refuse to take a grant

45

• (1) A citation to accept or refuse a grant may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.

• (2) Where power to make a grant to an executor has been reserved, a citation calling on him to accept or refuse a grant may be issued at the instance of the executors who have proved the will or of the executors of the last survivor of deceased executors who have proved.

• (3) A citation calling on an executor who has intermeddled in the estate of the deceased to show cause why he should not be ordered to take a grant may be issued at the instance of any person interested in the estate at any time after the expiration of six months from the death of the deceased;

Provided that no citation to take a grant shall issue while proceedings as to the validity of the will are pending.

• (4) A person cited who is willing to accept or take a grant may apply ex parte to the master for an order for a grant on filing an affidavit showing that he has entered an appearance and that he has not been served by the citor with notice of any application for a grant to himself.

• (5) If the time limited for appearance has expired and the person cited has not entered an appearance, the citor may—

• (a) in the case of a citation under paragraph (1) of this rule apply to the Master for an order for a grant to himself;

• (b) in the case of a citation under paragraph (2) of this rule, apply to the Master for an order that a note be made on the grant that the executor in respect of whom power was reserved has been duly cited and has not appeared and that all his rights in respect of the executorship have wholly ceased;

• (c) in the case of a citation under paragraph (3) of this rule, apply to the Master by summons (which shall be served on the person cited) for an order requiring such person to take a grant within a specified time or for a grant to himself or some other person specified in the summons.

• (6) An application under the last foregoing paragraph shall be supported by an affidavit showing that the citation was duly served and that the person cited has not entered an appearance.

• (7) If the person cited has entered an appearance, but has not applied for a grant under paragraph (4) of this rule, or has failed to prosecute his application with reasonable diligence, the citor may—

• (a) in the case of a citation under paragraph (1) of this rule, apply by summons to the Master for an order for a grant to himself;

• (b) in the case of a citation under paragraph (2) of this rule, apply by summons to the Master for an order striking out the appearance and for the endorsement on the grant of such a note as is mentioned in sub-paragraph (b) of paragraph (5) of this rule;

• (c) in the case of a citation under paragraph (3) of this rule, apply by summons to the Master for an order requiring the person cited to take a grant within a specified time or for a grant to himself or some other person specified in the summons;

and the summons shall be served on the person cited.

Citation to propound a will

46

• (1) A citation to propound a will shall be directed to the executors named in the will and to all persons interested thereunder, and may be issued at the instance of any citor having an interest contrary to that of the executors or such other persons.

• (2) If the time limited for appearance has expired, the citor may—

• (a) in the case where no person cited has entered an appearance, apply to the Master for an order for a grant as if the will were invalid;

• (b) in the case where no person who has entered an appearance proceeds with reasonable diligence to propound the will, apply to the Master by summons (which shall be served on every person cited who has entered an appearance) for such an order as is mentioned in paragraph (a) above.

Citation to bring in a grant

47

A citation against the person to whom probate or letters of administration, as the case may be, was or were granted requiring him to bring into and leave at the Office the probate or letters of administration, as the case may be, may be issued on the application of any person applying for the revocation or amendment of the grant or who desires to compel proof of the will in solemn form. Service out of jurisdiction of a citation under this rule is permissible but only with the leave of the Court.

Address for service

48

All caveats, citations, warnings and appearances shall contain an address for service within the jurisdiction.

Application for order to bring in a will or to attend for examination

49

• (1) An application under Article 15 of the Order—

• (a) for the issue by the Master of a subpoena to bring a will or other testamentary paper into the Office shall be supported by an affidavit setting out the grounds of the application, or

• (b) for an order requiring any person to bring a will or other testamentary paper into the Office shall be made by summons which must be served on the person against whom the order is sought.

• (2) An application under Article 16 of the Order for an order requiring any person to attend before the Court for examination shall be made by summons which must be served on the person against whom the order is sought.

• (3) Any person against whom a subpoena is issued under the said Article 15, and who denies that the will or other testamentary paper referred to in the subpoena is in his possession or under his control may file an affidavit to that effect.

Limited grants under section 1(2) of the Administration of Estates Act (Northern Ireland) 1955

50

An application for an order for a grant under section 1(2) of the Administration of Estates Act (Northern Ireland) 1955⁶⁷¹ limited to part of an estate may be made to the Master and shall be supported by an affidavit stating—

• (a) whether the application is made in respect of the real estate only or personal estate only, or real estate together with personal estate, or in respect of a trust estate only;

• (b) whether the estate of the deceased is known to be insolvent;

• (c) that the persons entitled to a grant in respect of the whole estate in priority to the applicant have been cleared off.

Grants of administration under discretionary powers of court, and grant ad colligenda bona

51

An application for an order for—

• (a) a grant of administration under Article 5 of the Order, or

• (b) a grant of administration ad colligenda bona,

may be made to the Master and shall be supported by an affidavit setting out the grounds of the application.

Applications for leave to swear to death

52

An application for leave to swear to the death of a person in whose estate a grant is sought may be made to the Master and shall be supported by an affidavit setting out the grounds of the application and containing particulars of any policies of insurance effected on the life of the presumed deceased.

Grants in respect of nuncupative wills and of copies of wills

53

• (1) An application for an order admitting to proof a nuncupative will, or a will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original will is not available, may be made to the Master:

Provided that where a will is not available owing to its being retained in the custody of a foreign court or official, a duly authenticated copy of the will may be admitted to proof without any such order as aforesaid.

• (2) The application shall be supported by an affidavit setting out the grounds of the application and by such evidence on affidavit as the applicant can adduce as to—

• (a) the due execution of the will;

• (b) its existence after the death of the testator, and

• (c) the accuracy of the copy or other evidence of the contents of the will,

together with any consents in writing to the application given by any persons not under disability who would be prejudiced by the grant.

Grants durante absentia

54

An application for an order for a grant of special administration under Article 8 of the Order where a personal representative is residing outside Northern Ireland shall be made to the Court on motion.

Power to require application to be made by summons or motion

55

The Master may require any application to be made by summons to the Master or the Judge, or to the Court on motion.

Notice of motion

56

The notice of a motion must issue out of the Office.

Application by summons

57

• (1) A summons must issue out of the Office.

• (2) A summons must be served not less than two clear days before the day appointed for the hearing, unless the Judge or Master, at or before the hearing, dispenses with service on such terms, if any, as he may think fit.

Issue of copies of original wills and other documents

58

• (1) Office copies of wills and other documents kept in the Office and branch offices under Article 23 of the Order will not be examined against the documents of which they purport to be copies unless so required. Every copy so required to be examined, shall be certified under the hand of the Master to be a true copy.

• (2) The seal of the Court shall not be affixed to an office copy of a will or other document unless the same has been certified to be a true copy.

Attendances with documents

59

If a will or other document filed in the Office or any branch office is required to be produced by a clerk of the Office or branch office at any place application must be made for that purpose (unless the Judge or Master gives leave to the contrary) at least twenty-four hours before the clerk, in whose charge the will or other document is to be placed, will be required to set off; provided that any such will or document required for production before the Court of Appeal or any Judge of the Supreme Court sitting in Belfast shall be transmitted to the proper officer of such Court or Judge who will give a receipt therefor and return the same to the Office as soon as may be after such production. If a will or other document so filed is required to be posted to a district judge application must be made for that purpose in sufficient time to allow for making and examining a copy of such will or other document to be deposited in its place.

Notices of applications for grants made to a branch office

60

• (1) A district judge shall send to the Office a notice of every application made in the branch office for a grant as soon as may be after the application has been made, and no grant shall be made by him until he has received from the Office a certificate that no other application appears to have been made in respect of the estate of the testator or intestate.

• (2) Notices of applications for grants of probate or administration, with the will annexed, transmitted by the district judge to the Office, shall contain an extract of the words of the will or codicil by which the applicant has been appointed executor, or of the words (if any) upon which he founds his claim to such administration; and shall show the day on which the application was made.

• (3) Notices of application shall set forth the names and interests of all persons who would have a prior right to the applicant, and show how such prior rights is cleared off. In case the persons, or any of them, have renounced, the date of his or her renunciation must be stated. If the applicant claims as the representative of another person, the date and particulars of the grant to him must appear.

• (4) Where any such notice is received from any branch office the Master shall examine all notices of applications for grants received from the other branch offices and all applications for grants made at the Office, so far as may be necessary for the purpose of ascertaining whether application for a grant in respect of the estate of the same deceased person has been made, and shall communicate with the district judge as occasion may require in relation thereto.

• (5) The certificate sent under paragraph (1) shall be forwarded as soon as may be to the district judge, and may be issued from the Office under a stamp provided for that purpose.

• (6) All notices transmitted to the Office under paragraph (1) shall be filed in the Office.

List of grants made in a branch office

61

• (1) A district judge shall on the first and every other Thursday in the month transmit to the Office a list of the grants made by him and not included in a previous return, and also copies of the wills to which the grants relate certified by him to be correct under a stamp provided for the purpose.

• (2) Every such list of grants furnished by the district judge shall include the full name of every person in respect of whose estate a grant has been made, and the name of the county or town in which he resided.

Amendment of grants in branch office

62

• (1) No grants of probate or letters of administration shall be amended by the district judge, without an order of the Judge or Master having been previously obtained. In case the name of the testator or intestate requires amendment notice of an application to amend must be given, and the amendment ordered is not to be made by the district judge until the usual certificate on such notice has been received from the Office.

• (2) Whenever in the branch office any amendment is made in a grant, or a renunciation is filed, notice of such amendment or renunciation shall, without delay, be forwarded by the district judge to the Master.

• (3) Where any alteration is made in a grant which was issued from a branch office, or where any such grant is revoked, and the volume of the printed calendar containing the entry of such grant has been forwarded to the district judge, notice of such alteration or revocation shall without delay be forwarded by the Master to the district judge.

Order of priority for grant where the deceased died before the 1st day of January 1956

63

Where the deceased died before the 1st January 1956, the right to a grant shall, subject to any statutory provision, be determined by the principles and rules in accordance with which the Court would have acted at the date of the death.

1

In this Order—

• “the Order of 1989” means the Matrimonial and Family Proceedings (Northern Ireland) Order 1989⁶⁷³;

• “the Judge” means the Judge for the time being to whom the business of the Family Division is assigned under section 17 of the Act and any judge of the High Court exercising jurisdiction in matrimonial causes and matters.

2

⁶⁷⁵ . . .]

3

⁶⁷⁵ . . .]

3A

⁶⁷⁵ . . .]

Heading of Petition

4

An application under Article 33 of the Order of 1989 for a declaration as to an adoption effected overseas shall be commenced by petition which shall be headed:—

In the High Court of Justice in Northern IrelandFamily DivisionOffice of Care and Protection

and shall be addressed to Her Majesty’s High Court of Justice in Northern Ireland.

Contents of Petition

5

• (1) A petition by which proceedings are begun under Article 33 of the Order of 1989 shall state—

• (a) the name of the petitioner;

• (b) the date and place of birth of the petitioner;

• (c) the names of those persons who are to be respondents pursuant to paragraph (5) and the residential address of each of them at the date of the presentation of the petition;

• (d) the date and place of the adoption order and the court or other tribunal or authority which made it;

• (e) all other material facts alleged by the petitioner to justify the making of the declaration and the grounds on which the application is made; and

• (f) either that the petitioner is domiciled in Northern Ireland on the date of the presentation of the petition or that he has been habitually resident in Northern Ireland throughout the period of one year ending with that date.

• (2) Where the jurisdiction of the court to entertain the petition is based on the petitioner’s habitual residence, the petition shall include a statement of the addresses of the places of residence of the petitioner and the length of residence at each place during the period of one year ending with the date of presentation of the petition.

• (3) There shall be annexed to the petition a copy of the petitioner’s birth certificate (if it is available, this certificate should be the one made after the adoption referred to in the petition) and, unless otherwise directed, a certified copy of the adoption order effected under the law of any country outside the United Kingdom, the Channel Islands and the Isle of Man.

• (4) Where a document produced by virtue of paragraph (3) is not in English it shall, unless otherwise directed, be accompanied by a translation certified by a notary public or authenticated by affidavit.

• (5) The following persons shall, if alive, be respondents to the application—

• (a) those whom the petitioner claims are his adoptive parents for the purposes of Article 40 of the Adoption (Northern Ireland) Order 1987⁶⁷⁶; or

• (b) those whom the petitioner claims are not his adoptive parents for the purposes of that Article.

Interpretation

6

In this Part “Master” means—

• (a) ⁶⁷⁷ . . .]

• (b) where the proceedings are brought under Article 33 (Declarations as to adoptions effected overseas) of the Order of 1989, the Master (Care and Protection),

and “the Office” means the Probate and Matrimonial Office or the Office of Care and Protection accordingly.

Affidavit in support of Petition

7

• (1) The petition shall be supported by an affidavit by the petitioner verifying the petition and giving particulars of every person whose interest may be affected by the proceedings and his relationship to the petitioner:

Provided that if the petitioner is under the age of 18 the affidavit shall, unless otherwise directed, be made by his next friend.

• (2) An affidavit for the purpose of paragraph (1) may contain statements of information and belief with the sources and grounds thereof.

Notice of the Petition to be given to the Attorney General

8

• (1) A copy of the petition and every document accompanying it shall be given by the petitioner to the Crown Solicitor on behalf of the Attorney General at least one month before the petition is filed and it shall not be necessary thereafter to serve these documents upon him.

• (2) On filing the petition notice of filing shall be given by the petitioner to the Crown Solicitor on behalf of the Attorney General who may enter an appearance to the petition within 14 days from such notice.

• (3) The Attorney General, in deciding whether it is necessary or expedient to intervene in the proceedings, may have a search made for, and may inspect and bespeak a copy of, any document filed or lodged in the court offices which relates to any other matrimonial proceedings referred to in the proceedings.

Service of Petition

9

The petitioner shall serve personally or by post every respondent, other than the Attorney General, with a copy of the petition indorsed with a notice to appear in accordance with Form 48 in Appendix A.

Appearance by Respondent

10

A respondent may enter an appearance within the time limited by the notice indorsed on the petition.

Answer by Respondent

11

• (1) A respondent who has entered an appearance may within 14 days thereafter file an answer to the petition.

• (2) The respondent shall within 4 days of filing an answer deliver a copy of it to the petitioner and to the Crown Solicitor and any other party to the proceedings.

Application for Directions

12

• (1) After the expiration of the time limited for the filing of an answer under rule 11(1), the petitioner shall issue and serve on all respondents, and on the Crown Solicitor, an application for directions as to any other persons who should be made respondents to the petition or given notice of the proceedings.

• (2) When giving directions in accordance with paragraph (1) the court shall consider whether it is necessary that the Attorney General should argue before it any question relating to the proceedings, and, if it does so consider, the Attorney General need not file an answer and the court shall give directions requiring him to serve on all parties to the proceedings a summary of his argument.

Answer by Attorney General

13

Subject to paragraph (2) of rule 12, the Attorney Gneral shall file an answer to the petition within 21 days after directions have been given under that rule and shall deliver a copy thereof to the petitioner and any other party to the proceedings.

Joining of Parties

14

Persons given notice of proceedings pursuant to directions given in accordance with rule 12 shall within 21 days after service of the notice upon them be entitled to apply to the Master to be joined as parties, and the cause shall not be set down for hearing until that period and the period referred to in rule 13 have expired.

Consolidation of suits

15

Where it appears that more than one petition has been filed on behalf of petitioners claiming to be children of the same father and mother, the Attorney General may, on giving notice to the petitioner in each suit which it is sought to consolidate, apply at any time after he has entered an appearance for an order that the suits be consolidated.

Setting down for hearing

16

• (1) The petitioner shall request the Master to enter the cause for hearing by lodging in the Office a certificate of readiness in Form 48A.

• (2) At the same time as lodging the certificate of readiness the petitioner shall deliver to the Office one bundle for the use of the Judge consisting of one indexed copy of the following documents:—

• (a) the certificate of readiness,

• (b) the petition,

• (c) any other pleadings,

• (d) affidavit of service,

• (e) interlocutory orders,

• (f) the requisite legal aid documents,

fastened together in the order shown and having endorsed thereon the names and addresses of the solicitors for the parties.

• (3) Within 4 days of lodging the certificate of readiness the petitioner shall give notice of having done so to the Crown Solicitor on behalf of the Attorney General and to each party in the cause who has entered an appearance.

• (4) The Master shall, subject to paragraph (5), fix a date for the hearing and give notice thereof to every party in the cause.

• (5) Save with the consent of all parties or by leave of the Judge no cause shall be placed in the list for hearing until after the expiration of 10 days from the date on which the certificate of readiness was lodged.

Mode of making applications

17

Unless this Order otherwise provides, every application under this Order shall be made by summons.

Form of Delcaration

18

[⁶⁷⁸

• (1) . . .]

• (2) A declaration made in accordance with Article 33 of the Order of 1989 shall be in Form 48C in Appendix A.]

1

In this Order “the Order” means the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979⁶⁷⁹ and an Article referred to by number means the Article so numbered in that Order.

Assignment to Chancery Division

2

Proceedings in the High Court under the Order shall be assigned to the Chancery Division.

Application for financial provision

3

• (1) Any originating summons by which an application under Article 3 is made shall be issued out of the Chancery Office.

• (2) No appearance need be entered to the summons.

• (3) An affidavit shall be filed by the applicant in support of the summons, exhibiting an official copy of the grant of representation to the deceased’s estate and of every testamentary document admitted to proof, and a copy of the affidavit shall be served on every defendant with the summons.

Powers of Court as to parties

4

• (1) Without prejudice to its powers under Order 15, the Court may at any stage of proceedings under the Order direct that any person be added as a party to the proceedings or that notice of the proceedings be served on any person.

• (2) Order 15, rule 13, shall apply to proceedings under the Order as it applies to the proceedings mentioned in paragraph (1) of that rule.

Affidavit in answer

5

• (1) A defendant to an application under Article 3 who is a personal representative of the deceased shall and any other defendant may, within 21 days after service of the summons on him, inclusive of the day of service, file in the Chancery Office an affidavit in answer to the application.

• (2) The affidavit filed by a personal representative pursuant to paragraph (1) shall state to the best of the deponent’s ability—

• (a) full particulars of the value of the deceased’s net estate, as defined by Article 2;

• (b) the person or classes of persons beneficially interested in the estate, giving the names and (in the case of those who are not already parties) the addresses of all living beneficiaries, and the value of their interests so far as ascertained;

• (c) if such be the case, that any living beneficiary (naming him) is a minor or a patient within the meaning of Order 80, rule 1; and

• (d) any facts known to the deponent which might affect the exercise of the Court’s powers under the Order.

• (3) Every defendant who files an affidavit shall at the same time serve a copy on the plaintiff and on every other defendant who is not represented by the same solicitor.

Separate representation

6

Where an application under Article 3 is made jointly by two or more applicants and the originating summons is accordingly issued by one solicitor on behalf of all of them, they may, if they have conflicting interests, appear on any hearing of the summons by separate solicitors or counsel or in person; and where at any stage of the proceedings it appears to the Court that one of the applicants is not but ought to be separately represented, the Court may adjourn the proceedings until he is.

Endorsement of memorandum on grant

7

On the hearing of an application under Article 3 the personal representative shall produce to the Court the grant of representation to the deceased’s estate and, if an order is made under the Order, the grant shall remain in the custody of the Court until a memorandum of the order has been endorsed on or permanently annexed to the grant in accordance with Article 21.

Disposal of proceedings in chambers

8

Any proceedings under the Order may, if the Court so directs, be disposed of in chambers.

Subsequent applications in proceedings under Article 3

9

Where an order has been made on an application under Article 3, any subsequent application under the Order, whether made by a party to the proceedings or by any other person, shall be made by summons in those proceedings.

Remittal to county court

10

• (1) Where an application to which Article 24(1) relates is within the jurisdiction of a county court, the Court may, if the parties consent or it appears to the Court to be desirable, order the remittal of the application to such county court as appears to the Court to be most convenient to the parties.

• (2) An order under paragraph (1) may be made by the court of its own motion or on the application of any party, but before making an order of its own motion otherwise than by consent the Court shall give the parties an opportunity of being heard on the question of remittal and for that purpose the Master may give the parties notice of a date, time and place at which the question will be considered.

Interpretation

1

In this Order—

• [⁶⁸¹ ...]

• “the 1994 Act” means the Trade Marks Act 1994 ⁶⁸²;

• “the Olympic Symbol Act” means the Olympic Symbol etc. (Protection) Act 1995⁶⁸³;

• “the Olympic Symbol Regulations” means the Olympic Association Right (Infringement Proceedings) Regulations 1995⁶⁸⁴;

• “the Registrar” means the Comptroller General of Patents, Designs and Trade Marks;

• “the register” means the register or trade marks maintained by the Registrar pursuant to section 63 of the 1994 Act.

Assignment to Chancery Division

2

Proceedings in the High Court under [⁶⁸¹ ...] the 1994 Act, the Olympic Symbol Act or the Olympic Symbol Regulations shall be assigned to the Chancery Division.

Appeals and applications under [ ...] the 1994 Act and the Olympic Symbol Act

3

• (1) Subject to rule 4 and paragraph (6) below every application to the High Court under [⁶⁸¹ ...] the 1994 Act, the Olympic Symbol Act and the Olympic Symbol Regulations must be begun by originating motion.

• (2) Notice of the motion by which any application is made under [⁶⁸¹ ...] the 1994 Act must be served on the Registrar.

• (3) Where—

• (a) the Registrar refers to the High Court an application made to him under [⁶⁸¹ ...] the 1994 Act;

• (b) [⁶⁸¹ ...] an appointed person under section 76 of the 1994 Act refers to that Court an appeal,

then unless within one month after receiving notification of the decision to refer, the applicant or the appellant, as the case may be, makes to that court the application or appeal referred, he shall be deemed to have abandoned it.

• (4) The period prescribed by Order 55, rule 14(2), or by paragraph (3) in relation to an application or appeal to which that paragraph applies may be extended by the Registrar on the application of any party interested and may be so extended although the application is not made until after the expiration of that period, but the foregoing provision shall not be taken to affect the power of the Court under Order 3, rule 5, to extend that period.

• (5) [⁶⁸⁵ ...]

• (6) An application under section 16 or section 19 of the 1994 Act or regulation 3 or regulation 5 of the Olympic Symbol Regulations shall be made by originating summons or, if it is made in a pending action by summons or motion in that action.

• (7) Where an application is made under section 19 of the 1994 Act or regulation 5 of the Olympic Symbol Regulations the applicant shall serve notice of the application on all persons so far as reasonably ascertainable having an interest in the goods, material or articles which are the subject of the application including any person in whose favour an order could be made in respect of the goods, material or articles under the said section of the 1994 Act or the said regulation of the Olympic Symbol Regulations or under section 114, 204 or 231 of the Copyright, Designs and Patents Act 1988.

Proceedings for infringement or registered trade mark; validity of registration disputed or revocation or rectification sought

4

• (1) Where in any proceedings a claim is made for relief for infringement of the rights conferred on the proprietor of a registered trade mark by section 9 of the 1994 Act, the party against whom the claim is made may in his defence put in issue the validity of the registration of that trade mark or may counterclaim for an order for revocation of the registration or for a declaration of invalidity of the registration or for rectification of the register, or may do any or all of those things.

• (2) A party to any such proceedings who in his pleading (whether a defence or counterclaim) disputes the validity of the registration of a registered trade mark or seeks a declaration of invalidity or an order for revocation of the registration, or rectification of the register, must serve with his pleading particulars of the objections to the validity of the registration or of any grounds for revocation or rectification, on which he relies.

• (3) A party to any such proceedings who counterclaims for an order for revocation of the registration or for a declaration of invalidity of the registration or for rectification of the register must serve on the Registrar a copy of the counterclaim together with a copy of the particulars mentioned in paragraph (2) and the Registrar shall be entitled to take such part in the proceedings as he may think fit but need not serve a defence or other unless ordered to do so by the Court.

Service of documents

5

• (1) This rule applies to the service of any document (including originating process) on a party until such time as that party has provided an address for service within the meaning of Order 6 rule 4(2) or Order 12 rule 3(3).

• (2) Subject to paragraph (3) for the purposes of any proceedings relating to a registered trade mark (including proceedings for revocation, declaration of invalidity or non-infringement or groundless threats of infringement proceedings or any other proceedings under [⁶⁸⁶ ...] the 1994 Act), where any document is served in the manner prescribed by Order 10 or Order 65 at an address for service given in the register kept under section 63 of the 1994 Act—

• (a) service shall be deemed to have been effected on the registered proprietor of the trade mark on the date on which the document was served at the said address;

• (b) the party on whom service is deemed to have been effected under sub-paragraph (a), shall be treated, for the purposes of any provision of these rules which specifies a time-limit for responding to the document so served (whether by acknowledging service, giving notice of intention to defend or otherwise), as having been served on the seventh day after the date on which the document was served at the said address.

• (3) Nothing in this rule shall prevent service being effected on the proprietor in accordance with the provisions of these rules.

Service of orders on the Registrar

6

Where an order is made by the Court in any case under [⁶⁸⁷ ...] the 1994 Act, the person in whose favour the order is made or, if there is more than one, such one of them as the Court shall direct, shall serve an office copy of the order on the Registrar.]

[ Forfeiture, Destruction etc:

7

Where the Court makes an order for delivery up, forfeiture or destruction of infringing goods, or articles designed or adapted to make such goods, the defendant shall pay the costs of complying with the order unless the court orders otherwise.

Publication of Judgments

8

Without prejudice to any other provisions of these Rules, the Court may, where it finds that an intellectual property right has been infringed, order appropriate measures for the dissemination and publication of the judgment to be made at the expense of the defendant.]

Interpretation

1

In this Order:

• “the Court” means the Court of Appeal

Application for leave to appeal

2

• (1) An application to the Court for leave to appeal against the decision of a Pensions Appeal Tribunal may not be made unless an application for such leave was made to the Tribunal and was refused and must be made within 28 days after the date of the Tribunal’s refusal.

• (2) The application to the Court, which may be made ex parte, must be made by filing in the Central Office a written statement of—

• (a) the name and description of the applicant,

• (b) the point of law as respects which the applicant alleges that the Tribunal’s decision was erroneous, and

• (c) the date of the Tribunal’s decision refusing leave to appeal.

• (3) If the application is made with the consent of the other party to the proceedings before the Tribunal, that fact shall be included in the statement.

• (4) On the making of the application the proper officer shall request the chairman of the Tribunal to give the Court a written statement of the reasons for the Tribunal’s decision to refuse leave to appeal, and within 7 days after receiving the request the chairman shall give the Court such a statement.

• (5) The Court may determine the application without a hearing or may direct that the application be set down for hearing.

• (6) Where the application is determined without a hearing, a copy of the Court’s order shall be sent from the Central Office to the applicant and to the other party to the proceedings before the Tribunal; and where the application is to be set down for hearing, notice of the day and time fixed for the hearing shall be sent from that Office to the applicant.

Appeal

3

• (1) Without prejudice to Order 59, rule 3(2), the notice of the originating motion by which an appeal against the decision of a Pensions Appeal Tribunal is brought must state the question of law on which the appeal is brought, the date on which leave to appeal was granted and whether such leave was granted by the [⁶⁸⁹ Court] or the Tribunal.

• (2) Order 59, rules 5 and 13, shall not apply in relation to such an appeal, but notice must be served and the appeal entered within 28 days after leave to appeal was granted.

• (3) Within 28 days after service of the notice of motion on him, the chairman of the Tribunal must state a case setting out the facts on which the decision appealed against was based and must file the case in the Central Office and serve a copy thereof on the appellant and on the respondent.

• (4) At the hearing of the appeal the Court may order the case to be returned to the chairman for amendment.

• (5) Order 59, rule 10(2), shall not apply in relation to the appeal.

• (6) A copy of the Court’s order on the appeal must be sent by the proper officer of the appellant, the respondent and the chairman of the Tribunal.

[ Definitions

1

In this Order—

• “the 1986 Order” means the Companies (Northern Ireland) Order 1986⁶⁹²;

• “the court”, without prejudice to Order 1 rule 3(2), includes the Master (Bankruptcy).

Applications to be made by originating summons

2

• (1) Except in the case of the applications mentioned in rules 3 and 4, every application under the 1986 Order must, in accordance with Order 5, rule 3, be made by originating summons, except that references in that Order, and in Forms 6, 7 and 8 in Appendix A, to “plaintiff” and “defendant” shall be construed as references to “applicant” and “respondent” respectively.

• (2) Subject to paragraphs (3) and (4) an originating summons under this rule shall be in Form 7.

• (3) An originating summons under this rule shall be in Form 6 where the application made by summons is—

• (a) an application under Article 224(1) of the 1986 Order for an order directing that any shares in a company shall be subject to the restrictions imposed by Part XVI of that Order;

• (b) an application under Article 250(3) of the 1986 Order for an order directing the directors of a company or any of them to make good any such default as is mentioned in paragraph (1) of that Article;

• (c) an application under Article 253B(1) of the 1986 Order for a declaration that the annual accounts of a company do not comply with the requirement of that Order and for any order requiring the preparation of revised accounts;

• (d) an application under Article 420 of the 1986 Order for an order to make provision for all or any of the matters mentioned in paragraph (3) of that Article where an order sanctioning the compromise or arrangement to which the application relates has previously been made;

• (e) an application under Article 465 of the 1986 Order for an order directing a receiver or manager of a company to make good any such default as is mentioned in paragraph (1) of that Article;

• (f) an application under Article 662(1) of the 1986 Order for an order directing a company and any officer thereof to make good any such default as is mentioned in paragraph (1) of that Article.

• (4) An application under Article 670 of the 1986 Order may be made by ex parte originating summons in Form 8 in Appendix A.

Applications to be made by originating motion

3

The following applications under the 1986 Order must be made by originating motion, namely, applications—

• (a) under Article 98(6) for an order extending the time for delivery to the registrar of companies of any documents required by that Article to be delivered;

• (b) under Article 225(5) for amendment of the register of interests in shares of a company;

• (c) under Article 367(1) for rectification of the register of members of a company;

• (d) under Article 425(1) for an order declaring that the affairs of a company ought to be investigated by an inspector appointed by the Department of Economic Development;

• (e) under Article 429 for an inquiry into any such case as is therein mentioned;

• (f) under Article 449(1) for an order directing that any shares in or debentures of a company shall cease to be subject to the restrictions imposed by Part XVI of the 1986 Order;

• (g) under Article 449(4) for an order directing that any shares in or debentures of a company shall, on a sale, cease to be subject to the restrictions imposed by Part XVI of the 1986 Order;

• (h) under Article 602(1) for an order declaring a dissolution of a company which has not been wound up to have been void.

Applications to be made by petition

4

• (1) The following applications under the 1986 Order must be made by petition, namely applications—

• (a) under Article 16(1) to cancel the alteration of a company’s objects;

• (b) under Article 28(1) to cancel the alteration of a condition contained in a company’s memorandum;

• (c) under Article 64(1) to cancel a special resolution to which that section applies;

• (d) under Article 137(2) to cancel any variation or abrogation of the rights attached to any class of shares in a company;

• (e) under Article 140(3) to confirm a reduction of the share premium account of a company;

• (f) under Article 146(1) to confirm a reduction of the share capital of a company;

• (g) under Article 167(2) or Article 186(1) to cancel a special resolution to which either of those Articles applies;

• (h) under Article 180(4) in relation to the reduction of capital redemption reserve;

• (i) under Article 418(1) to sanction a compromise or arrangement between a company and its creditors or any class of them or between a company and its members or any class of them;

• (j) under Article 604(2) for an order restoring the name of a company to the register where the application is made in conjunction with an application for the winding up of the company;

• (k) under Article 639(2) to cancel the alteration of the form of a company’s constitution;

• (l) under Article 675(2) for relief from liability of an officer of a company or a person employed by a company as auditor.

• (2) A petition by which any such application is made shall be presented in the Bankruptcy and Companies Office.

Entitlement of proceedings

5

Every originating summons, notice of originating motion and petition by which any such proceedings are begun and all affidavits, notices and other documents in those proceedings must be entitled in the matter of the company in question and in the matter of the Companies (Northern Ireland) Order 1986.

Summons for directions

6

• (1) After presentation of a petition by which any such application as is mentioned in rule 4 is made, the petitioner, except where his application is one of those mentioned in paragraph (2), must take out a summons for directions under this rule.

• (2) The applications referred to in paragraph (1) are—

• (a) an application under Article 64(1) of the 1986 Order for an order cancelling a special resolution to which that Article applies;

• (b) an application under Article 167(2) or Article 186(1) of the 1986 Order for an order cancelling a special resolution to which those Articles apply;

• (c) an application under Article 418(1) of the 1986 Order to sanction a compromise or arrangement unless there is included in the petition for such sanction an application for an order under Article 420 of that Order;

• (d) an application under Article 604(2) of the 1986 Order for an order restoring the name of a company to the register.

• (3) On the hearing of the summons the Court may by order give such directions as to the proceedings to be taken before the hearing of the petition as it thinks fit including, in particular, directions for the publication of notices and the making of any inquiry.

• (4) Where the application made by the petition is to confirm a reduction of the share capital, the share premium account, or the capital redemption reserve of a company, then, without prejudice to the generality of paragraph (3), the Court may give directions—

• (a) for an inquiry to be made as to the debts of, and claims against, the company or as to any class or classes of such debts or claims;

• (b) as to the proceedings to be taken for settling the list of creditors entitled to object to the reduction and fixing the date by reference to which the list is to be made;

and the power of the court under Article 146(6) of the 1986 Order to direct that Article 146(3) to (5) thereof shall not apply as regards any class of creditors may be exercised on any hearing of the summons.

• (5) Rules 7 to 12 shall have effect subject to any directions given by the Court under this rule.]

Inquiry as to debts: company to make list of creditors

7

• (1) Where under rule 6 the Court orders such an inquiry as is mentioned in paragraph (4) thereof, the company in question must, within 7 days after the making of the order, file an affidavit made by an officer of the company competent to make it verifying a list containing—

• (a) the name and address of every creditor entitled to any debt or claim to which the inquiry extends,

• (b) the amount due to each creditor in respect of such debt or claim or, in the case of a debt or claim which is subject to any contingency or sounds only in damages or for some other reason does not bear a certain value, a just estimate of the value thereof, and

• (c) the total of those amounts and values.

• (2) The deponent must state in the affidavit his belief that at the date fixed by the Court as the date by reference to which the list is to be made there is no debt or claim which, if the date were the commencement of the winding up of the company, would be admissible in proof against the company, other than the debts or claims set out in the list and any debts or claims to which the inquiry does not extend, and must also state his means of knowledge of the matters deposed to.

• (3) The list must be left at the Bankruptcy and Companies Office not later than one day after the affidavit is filed.

Inspection of list of creditors

8

• (1) Copies of the list made under rule 7 with the omission, unless the Court otherwise directs, of the amount due to each creditor and the estimated value of any debt or claim to which any creditor is entitled, shall be kept at the registered office of the company and at the office of that company’s solicitor.

• (2) Any person shall be entitled during ordinary business hours, on payment of a fee of 50 pence, to inspect the said list at any such office and to take extracts therefrom.

Notice to creditors

9

Within 7 days after filing the affidavit required by rule 7 the company must send by post to each creditor named in the list exhibited to the affidavit, at his last known address, a notice stating—

• (a) the amount of the reduction sought to be confirmed,

• (b) the effect of the order directing an inquiry as to debts and claims,

• (c) the amount or value specified in the list as due or estimated to be due to that creditor, and

• (d) the time fixed by the Court within which, if claims to be entitled to a larger amount, he must send particulars of his debt or claim and the name and address of the solicitor, if any, to the company’s solicitor.

Advertisement of petition and list of creditors

10

After filing the affidavit required by rule 7 the company must insert, in such newspapers and at such times as the Court directs, a notice stating—

• (a) the date of presentation of the petition and the amount of the reduction thereby sought to be confirmed,

• (b) the inquiry ordered by the Court under rule 6,

• (c) the places where the list of creditors may be inspected in accordance with rule 8, and

• (d) the time within which any creditor not named in the list who claims to be entitled to any debt or claim to which the inquiry extends must send his name and address, the name and address of his solicitor, if any, and particulars of his debt or claim to the company’s solicitor.

Affidavit as to claims made by creditors

11

Within such time as the Court directs the company must file an affidavit made by the company’s solicitor and an officer of the company competent to make it—

• (a) proving service of the notices mentioned in rule 9 and advertisements of the notice mentioned in rule 10,

• (b) verifying a list containing the names and addresses of the persons (if any) who in pursuance of such notices sent in particulars of debts of claims, specifying the amount of each debt or claim,

• (c) distinguishing in such list those debts or claims which are wholly, or as to any and what part thereof, admitted by the company, disputed by the company or alleged by the company to be outside the scope of the enquiry, and

• (d) stating which of the persons named in the list made under rule 7, and which of the persons named in the list made under this rule, have been paid or consent to the reduction sought to be confirmed.

Adjudication of disputed claims

12

If the company contends that a person is not entitled to be entered in the list of creditors in respect of any debt or claim or in respect of the full amount claimed by him in respect of any debt or claim, than, unless the company is willing to secure payment of that debt or claim by appropriating the full amount of the debt or claim, the company must, if the Court so directs, send to that person by post at his last known address a notice requiring him—

• (a) within such time as may be specified in the notice, being not less than 4 clear days after service thereof, to file an affidavit proving his debt or claim or, as the case may be, so much thereof as is not admitted by the company, and

• (b) to attend the adjudication of his debt or claim at the place and time specified in the notice, being the time appointed by the Court for the adjudication of debts and claims.

Certifying lists of creditors entitled to object to reduction

13

The list of creditors entitled to object to such reduction as is mentioned in rule 6(4), as settled by the Court under [⁶⁹³ Article 146(4) of the 1986 Order] shall be certified and filed by the Master (Bankruptcy) and his certificate shall—

• (a) specify the debts or claims (if any) disallowed by the Court,

• (b) distinguish the debts or claims (if any) the full amount of which is admitted by the company, the debts or claims (if any) the full amount of which, though not admitted by the company, the company is willing to appropriate, the debts or claims (if any) the amount of which has been fixed by adjudication of the Court under [⁶⁹⁴ Article 146(4) of the 1986 Order] of the Act and other debts or claims;

• (c) specify the total amount of the debts or claims payment of which has been secured by appropriation under the said [⁶⁹⁴ Article 146(4) of the 1986 Order];

• (d) show which creditors consent to the reduction and the total amount of their debts or claims;

• (e) specify the creditors who sought to prove their debts or claims under rule 12 and state which of such debts or claims were allowed.

Evidence of consent of creditor

14

The consent of a creditor to such reduction as is mentioned in rule 6(4) may be proved in such manner as the Court thinks sufficient.

Time, etc. of hearing of petition for confirmation or reduction

15

• (1) A petition for the confirmation of any such reduction as is mentioned in rule 6(4) shall not, where the Court has directed an inquiry pursuant to that rule, be heard before the expiration of at least 8 clear days after the filing of the certificate mentioned in rule 13.

• (2) Before the hearing of such a petition, a notice specifying the day appointed for the hearing must be published at such times and in such newspapers as the Court may direct.

16

⁶⁹⁵ . . .]

Application

1

An application for a determination under section 7(1) of the Elected Authorities (Northern Ireland) Act 1989⁶⁹⁷ shall be commenced by originating motion.

Assignment to Queen’s Bench Division

2

Proceedings under this Order shall be assigned to the Queen’s Bench Division.

Notice of motion and supporting documents

3

The notice of motion must be supported by a statement setting out the grounds on which relief is sought and the capacity in which the applicant applies under section 7, and by an affidavit verifying the facts relied on.

Service of notice of motion

4

• (1) The notice of motion and statement and affidavit must be served on the person to whom the application relates.

• (2) Unless the court otherwise directs, there must be at least 10 days between the service of the notice of motion and the day named in the notice for hearing of the motion.

• (3) An affidavit giving the name and address of and the place and date of service on the person who has been served with the notice of motion must be filed before the motion is entered for hearing and the affidavit shall be before the Court on the hearing of the motion.

• (4) If on the hearing of the motion the Court is of opinion that any other person should be served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the notice may be served on that person.

Hearing of application

5

• (1) On the hearing of any motion any person who desires to be heard in opposition to the motion, and appears to the court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with notice of the motion.

• (2) The Court may authorise or require oral evidence to be given when it appears to be necessary or desirable.

Consolidation and joinder of parties

6

Order 4, rule 5, and Order 15, rules 4 and 5, shall apply to applications under this Order as they apply to actions.

Time for bringing proceedings

7

An application under rule 1 shall not be made after the expiration of more than 2 months from the date of the alleged breach of the terms of the declaration against terrorism.]

Definitions

1

In this Order—

• “the 1949 Act” means the Patents Act 1949⁶⁹⁸;

• “the 1977 Act” means the Patents Act 1977⁶⁹⁹;

• “the Comptroller” means the Comptroller-General of Patents, Designs and Trade Marks;

• “existing patent” means a patent mentioned in section 127(2)(a) or (c) of the 1977 Act;

• “the Journal” means the journal published pursuant to rules made under section 123(6) of the 1977 Act;

• “1977 Act patent” means a patent under the 1977 Act;

• “patent” means an existing patent or a 1977 Act patent.

Assignment of proceedings

2

All proceedings in the High Court under the Patents Acts 1949 to 1961 and 1977, the Registered Designs Acts 1949 to 1961 and the Defence Contracts Act 1958⁷⁰⁰, and all proceedings for the determination of a question or the making of a declaration relating to a patent under the inherent jurisdiction of the High Court, shall be assigned to the Chancery Division.

Application for leave to amend specification under section 30 of the 1949 Act or section 75 of the 1977 Act

3

• (1) A patentee or the proprietor of a patent intending to apply under section 30 of the 1949 Act or under section 75 of the 1977 Act for leave to amend his specification must give notice of his intention to the Comptroller accompanied by a copy of an advertisement—

• (a) identifying the proceedings pending before the Court in which it is intended to apply for such leave;

• (b) giving particulars of the amendment sought;

• (c) stating the applicant’s address for service within the United Kingdom, and

• (d) stating that any person intending to oppose the amendment who is not a party to the proceedings must within 28 days after the appearance of the advertisement give written notice of his intention to the applicant;

and the Comptroller shall insert the advertisement once in the Journal.

A person who gives notice in accordance with the advertisement shall be entitled to be heard on the application subject to any direction of the Court as to costs.

• (2) As soon as may be after the expiration of 35 days from the appearance of the advertisement the applicant must make his application under the said section 30 or 75, as the case may be, by motion in the proceedings pending before the Court; and notice of the motion, together with a copy of the specification certified by the Comptroller and showing in coloured ink the amendment sought, must be served on the Comptroller, the parties to the proceedings and any person who has given notice of his intention to oppose the amendment.

• (3) On the hearing of the motion the Court shall give such directions for the further conduct of the proceedings on the motion as it thinks necessary or expedient and, in particular, directions—

• (a) requiring the applicant and any party or person opposing the amendment sought to exchange statements of the grounds for allowing the amendment and of objections to the amendment;

• (b) determining whether the motion shall be heard with the other proceedings relating to the patent in question or separately and, if separately, fixing the date of hearing thereof;

• (c) as to the manner in which the evidence shall be given and, if the evidence is to be given by affidavit, fixing the times within which the affidavits must be filed.

• (4) Where the Court allows a specification to be amended, the applicant must forthwith lodge with the Comptroller an office copy of the order made by the Court and, if so required by the Court or Comptroller, leave at the Patent Office a new specification and drawings as amended, prepared in compliance with the 1949 or 1977 Act, whichever is applicable, and the rules made under those Acts respectively.

The Comptroller shall cause a copy of the order to be inserted at least once in the Journal.

Application for revocation of patent

4

• (1) An application under section 72 of the 1977 Act for the revocation of a patent shall be made by petition.

This paragraph does not apply to an application made in pending proceedings.

• (2) The respondent to a petition under section 32 of the 1949 Act or section 72 of the 1977 Act must serve an answer on the petitioner within 21 days after service of the petition on him.

Action for infringement

5

• (1) Notwithstanding anything in Order 5, rule 4, proceedings in which a claim is made by the plaintiff in respect of the infringement of a patent shall be begun by writ.

• (2) The plaintiff in such an action must serve with his statement of claim particulars of the infringement relied on, showing which of the claims in the specification of the patent are alleged to be infringed and giving at least one instance of each type of infringement alleged.

• (3) If a defendant in such an action alleges, as a defence to the action, that at the time of the infringement there was in force a contract or licence relating to the patent made by or with the consent of the plaintiff and containing a condition or term void by virtue of section 44 of the 1977 Act, he must serve on the plaintiff particulars of the date of, and parties to, each such contract or licence and particulars of each such condition or term.

Objection to validity of patent

6

• (1) A person who—

• (a) presents a petition under section 32 of the 1949 Act or section 72 of the 1977 Act for the revocation of a patent, or

• (b) being party to an action concerning a patent, either questions the validity of the patent or applies by counterclaim in the action for revocation of the patent,

must serve with his petition or other pleading particulars of the objections to the validity of the patent on which he relies.

• (2) Particulars given pursuant to paragraph (1) must state every ground on which the validity of the patent is questioned and must include such particulars as will clearly define every issue which it is intended to raise.

• (3) If the grounds stated in the particulars of objections include want of novelty or want of any inventive step, the particulars must state the manner, time and place of every prior publication or user relied upon and, if prior user is alleged, must—

• (a) specify the name of every person alleged to have made such user,

• (b) state whether such user is alleged to have continued until the priority date of the claim in question or of the invention, as may be appropriate, and, if not, the earliest and latest date on which such user is alleged to have taken place,

• (c) contain a description accompanied by drawings, if necessary, sufficient to identify such user, and

• (d) if such user relates to machinery or apparatus, state whether the machinery or apparatus is in existence and where it can be inspected.

• (4) If in the case of an existing patent—

• (a) one of the grounds stated in the particulars of objections is that the invention, so far as claimed in any claim of the complete specification, is not useful, and

• (b) it is intended, in connection with that ground, to rely on the fact that an example of the invention which is the subject of any such claim cannot be made to work, either at all or as described in the specification,

the particulars must state that fact and identify each such claim and must include particulars of each such example, specifying the respects in which it is alleged that it does not work or does not work as described.

Amendment of particulars

7

Without prejudice to Order 20, rule 5, the Court may at any stage of the proceedings allow a party to amend any particulars served by him under the foregoing provisions of this Order on such terms as to costs or otherwise as may be just.

Further particulars

8

The Court may at any stage of the proceedings order a party to serve on any other party further or better particulars of infringements or of objections.

Restrictions on admission of evidence

9

• (1) Except with the leave of the judge hearing any action or other proceeding relating to a patent, no evidence shall be admissible in proof of any alleged infringement, or of any objection to the validity, of the patent, if the infringement or objection was not raised in the particulars of infringements or objections, as the case may be.

• (2) In any case or other proceeding relating to a patent, evidence which is not in accordance with a statement contained in particulars of objections to the validity of the patent shall not be admissible in support of such an objection unless the judge hearing the proceeding allows the evidence to be admitted.

• (3) If any machinery or apparatus alleged to have been used before the priority date mentioned in rule 6(3)(b) is in existence at the date of service of the particulars of objections, no evidence of its user before that date shall be admissible unless it is proved that the party relying on such user offered, where the machinery or apparatus is in his possession, inspection of it to the other parties to the proceedings or, where it is not, used all reasonable endeavours to obtain inspection of it for those parties.

Proceedings for infringement or revocation: summons for directions

10

• (1) In an action for infringement of a patent (whether or not any other relief is claimed) and in proceedings by petition for the revocation of a patent the plaintiff or petitioner must, within one month after service thereof, take out a summons for directions as to the place and mode of trial returnable in not less than 21 days, and if the plaintiff or petitioner does not take out such a summons in accordance with this paragraph, the defendant or respondent as the case may be, may do so.

The summons may be heard in chambers or in court as the Court thinks fit.

• (2) The Court hearing a summons under this rule may give such directions—

• (a) for the service of further pleadings or particulars,

• (b) for the discovery of documents,

• (c) for securing the making of admissions,

• (d) for the service of interrogatories and of answers thereto,

• (e) for the taking by affidavit of evidence relating to matters requiring expert knowledge, and for the filing of such affidavits and the service of copies thereof on the other parties.

• (f) for the service on the other parties, by any party desiring to submit experimental proof, of full and precise particulars of the experiments proposed and of the facts which he claims to be able to establish thereby.

• (g) for the making of experiments, tests, inspections or reports,

• (h) for the hearing, as a preliminary issue, of any question that may arise (including any question as to the construction of the specification or other documents),

and otherwise as the Court thinks necessary or expedient for the purpose of defining and limiting the issues to be tried, restricting the number of witnesses to be called at the trial of any particular issue and otherwise securing that the case shall be disposed of, consistently with adequate hearing, in the most expeditious manner.

Where the evidence is directed to be given by affidavit, the deponents must attend at the trial for cross-examination unless, with the concurrence of the Court, the parties otherwise agree.

• (3) On the hearing of a summons under this rule the Court shall consider, if necessary of its own motion, whether an independent scientific adviser should be appointed under rule 11 to assist the Court.

• (4) No action for infringement of a patent or petition for the revocation of a patent shall be set down for trial unless and until a summons under this rule in the action or proceedings has been taken out and the directions given on the summons have been carried out or the time fixed by the Court for carrying them out has expired.

Appointment of a scientific adviser

11

• (1) In any proceedings under the 1949 or 1977 Act the Court may at any time, and on or without the application of any party, appoint an independent scientific adviser to assist the Court, either—

• (a) by sitting with the judge at the trial or hearing of the proceedings; or

• (b) by inquiring and reporting on any question of fact or of opinion not involving a question of law or construction,

according as the Court may direct.

• (2) The Court may nominate the scientific adviser and, where appropriate, settle any question or instructions to be submitted or given to him.

Determination of question or application where Comptroller declines to deal with it

12

Where the Comptroller—

• (a) declines to deal with a question under section 8(7), 12(2), 37(8) or 61(5) of the 1977 Act;

• (b) declines to deal with an application under section 40(5) of that Act, or

• (c) certifies under section 72(7)(b) of that Act that the question whether a patent should be revoked is one which would more properly be determined by the court,

any person entitled to do so may, within 28 days after the Comptroller’s decision, apply to the Court by originating summons to determine the question or application.

Application by employee for compensation under section 40 of the 1977 Act

13