The Court of Protection Rules 2017

• (b) if refusing permission without a hearing, the reasons for its decision in summary form; and

• (c) any directions,

on the applicant and on any other person served with or notified of the application form.

Appeal against a permission decision following a hearing

8.6

Where the court grants or refuses permission following a hearing, any appeal against the permission decision shall be dealt with in accordance with Part 20 (appeals).

(Rule 13.4 deals with reconsideration of orders and decisions made without a hearing or without notice to any person who is affected by such order or decision.)

PART 9 — HOW TO START AND RESPOND TO PROCEEDINGS, AND PARTIES TO PROCEEDINGS

Initial steps	Initial steps
General	Rule 9.1
When proceedings are started	Rule 9.2
Contents of the application form	Rule 9.3
Documents to be filed with the application form	Rule 9.4
What the court will do when an application form is filed	Rule 9.5
Steps following issue of application form	Steps following issue of application form
Applicant to serve the application form on named respondents	Rule 9.6
Applications relating to lasting powers of attorney	Rule 9.7
Applications relating to enduring powers of attorney	Rule 9.8
Applicant to notify P of an application	Rule 9.9
Applicant to notify other persons of an application	Rule 9.10
Requirements for certain applications	Rule 9.11
Responding to an application	Responding to an application
Responding to an application	Rule 9.12
The parties to the proceedings	The parties to the proceedings
Parties to the proceedings	Rule 9.13
Persons to be bound as if parties	Rule 9.14
Application to be joined as a party	Rule 9.15
Application for removal as a party to proceedings	Rule 9.16

Initial steps

General

9.1

• (1) Applications to the court to start proceedings must be made in accordance with this Part and, as applicable, Part 8 and the relevant practice directions.

• (2) The appropriate forms must be used in the cases to which they apply, with such variations as the case requires, but not so as to omit any information or guidance which any form gives to the intended recipient.

When proceedings are started

9.2

• (1) The general rule is that proceedings are started when the court issues an application form at the request of the applicant.

• (2) An application form is issued on the date entered on the application form by the court.

Contents of the application form

9.3

The application form must—

• (a) state the matter which the applicant wants the court to decide;

• (b) state the order which the applicant is seeking;

• (c) name—

• (i) the applicant;

• (ii) P;

• (iii) as a respondent, any person (other than P) whom the applicant reasonably believes to have an interest which means that that person ought to be heard in relation to the application (as opposed to being notified of it in accordance with rule 9.10);

• (iv) any person whom the applicant intends to notify in accordance with rule 9.10; and

• (d) if the applicant is applying in a representative capacity, state what that capacity is.

Documents to be filed with the application form

9.4

Where an applicant files the application form with the court, the applicant must also file—

• (a) in accordance with the relevant practice direction, any evidence on which the applicant intends to rely;

• (b) an assessment of capacity form, where this is required by the relevant practice direction;

• (c) any other documents referred to in the application form; and

• (d) such other information and material as may be set out in a practice direction.

What the court will do when an application form is filed

9.5

As soon as practicable after an application form is filed the court must issue it and do anything else that may be set out in a practice direction.

Steps following issue of application form

Applicant to serve the application form on named respondents

9.6

• (1) As soon as practicable and in any event within 14 days of the date on which the application form was issued, the applicant must serve a copy of the application form on any person who is named as a respondent in the application form, together with copies of any documents filed in accordance with rule 9.4 and a form for acknowledging service.

• (2) The applicant must file a certificate of service within 7 days beginning with the date on which the documents were served.

Applications relating to lasting powers of attorney

9.7

• (1) Where the application concerns the powers of the court under section 22 or 23 of the Act (powers of the court in relation to the validity and operation of lasting powers of attorney) the applicant must serve a copy of the application form, together with copies of any documents filed in accordance with rule 9.4 and a form for acknowledging service—

• (a) unless the applicant is the donor or donee of the lasting power of attorney (“the power”), on the donor and every donee of the power;

• (b) if the applicant is the donor, on every donee of the power; or

• (c) if the applicant is a donee, on the donor and any other donee of the power,

but only if the persons mentioned in sub-paragraphs (a) to (c) have not been served or notified under any other rule.

• (2) Where the application is solely in respect of an objection to the registration of the power, the requirements of rules 9.6 and 9.10 do not apply to an application made under this rule by—

• (a) a donee of the power; or

• (b) a person named in a statement made by the donor of the power in accordance with paragraph 2(1)(c)(i) of Schedule 1 to the Act.

• (3) The applicant must comply with paragraph (1) as soon as practicable and in any event within 14 days of the date on which the application form was issued.

• (4) The applicant must file a certificate of service with 7 days beginning with the date on which the documents were served.

• (5) Where the applicant knows or has reasonable grounds to believe that the donor of the power lacks capacity to make a decision in relation to any matter that is the subject of the application, the applicant must notify the donor in accordance with Part 7.

Applications relating to enduring powers of attorney

9.8

• (1) Where the application concerns the powers of the court under paragraphs 2(9), 4(5)(a) and (b), 7(2), 10(c), 13, or 16(2), (3), (4) and (6) of Schedule 4 to the Act, the applicant must serve a copy of the application form, together with copies of any documents filed in accordance with rule 9.4 and a form for acknowledging service—

• (a) unless the applicant is the donor or attorney under the enduring power of attorney (“the power”), on the donor and every attorney under the power;

• (b) if the applicant is the donor, on every attorney under the power; or

• (c) if the applicant is an attorney, on the donor and any other attorney under the power,

but only if the persons mentioned in sub-paragraphs (a) to (c) have not been served or notified under any other rule.

• (2) Where the application is solely in respect of an objection to the registration of the power, the requirements of rules 9.6 and 9.10 do not apply to an application made under this rule by—

• (a) an attorney under the power; or

• (b) a person listed in paragraph 6(1) of Schedule 4 to the Act.

• (3) The applicant must comply with paragraph (1) as soon as practicable and in any event within 14 days of the date on which the application form was issued.

• (4) The applicant must file a certificate of service within 7 days beginning with the date on which the documents were served.

• (5) Where the applicant knows or has reasonable grounds to believe that the donor of the power lacks capacity to make a decision in relation to any matter that is the subject of the application, the applicant must notify the donor in accordance with Part 7.

Applicant to notify P of an application

9.9

P must be notified in accordance with Part 7 that an application form has been issued, unless the requirement to do so has been dispensed with under rule 7.11.

Applicant to notify other persons of an application

9.10

• (1) As soon as practicable and in any event within 14 days of the date on which the application form was issued, the applicant must notify the persons specified in the relevant practice direction—

• (a) that an application has been issued;

• (b) whether it relates to the exercise of the court’s jurisdiction in relation to P’s property and affairs, or P’s personal welfare, or to both; and

• (c) of the order or orders sought.

• (2) Notification of the issue of the application form must be accompanied by a form for acknowledging notification.

• (3) The applicant must file a certificate of notification within 7 days beginning with the date on which notification was given.

Requirements for certain applications

9.11

A practice direction may make additional or different provision in relation to specified applications.

Responding to an application

Responding to an application

9.12

• (1) A person who is served with or notified of an application form and who wishes to take part in proceedings must file an acknowledgment of service or notification in accordance with this rule.

• (2) The acknowledgment of service or notification must be filed not more than 14 days after the application form was served or notification of the application was given.

• (3) The court must serve the acknowledgment of service or notification on the applicant and on any other person who has filed such an acknowledgment.

• (4) The acknowledgment of service or notification must—

• (a) state whether the person acknowledging service or notification consents to the application;

• (b) state whether that person opposes the application and, if so, set out the grounds for doing so;

• (c) state whether that person seeks a different order from that set out in the application form and, if so, set out what that order is;

• (d) provide an address for service, which must be within the jurisdiction of the court;; and

• (e) be signed by that person or that person’s legal representative.

• (5) Subject to rules 15.2 and 15.5 (restriction on filing an expert’s report and court’s power to restrict expert evidence), unless the court directs otherwise, where a person who has been served in accordance with rule 9.6, 9.7 or 9.8 opposes the application or seeks a different order, that person must within 28 days of such service file a witness statement containing any evidence upon which that person intends to rely.

• (6) In addition to complying with the other requirements of this rule, an acknowledgment of notification filed by a person notified of the application in accordance with rule 9.7(5), 9.8(5), 9.9 or 9.10 must—

• (a) indicate whether the person wishes to be joined as a party to the proceedings; and

• (b) state the person’s interest in the proceedings.

• (7) Subject to rules 15.2 and 15.5 (restriction on filing an expert’s report and court’s power to restrict expert evidence), unless the court directs otherwise, where a person has been notified in accordance with rule 9.7(5), 9.8(5), 9.9 or 9.10, that person must within 28 days of such notification file a witness statement containing any evidence of that person’s interest in the proceedings and, if that person opposes the application or seeks a different order, any evidence upon which that person intends to rely.

• (8) The court must consider whether to join a person mentioned in paragraph (6) as a party to the proceedings and, if it decides to do so, must make an order to that effect.

• (9) Where a person who is notified in accordance with rule 9.7(5), 9.8(5), 9.9 or 9.10 complies with the requirements of this rule, that person need not comply with the requirements of rule 9.15 (application to be joined as a party).

• (10) A practice direction may make provision about responding to applications.

The parties to the proceedings

Parties to the proceedings

9.13

• (1) Unless the court directs otherwise, the parties to any proceedings are—

• (a) the applicant; and

• (b) any person who is named as a respondent in the application form and who files an acknowledgment of service in respect of the application form.

• (2) The court may order a person to be joined as a party if it considers that it is desirable to do so for the purpose of dealing with the application.

• (3) The court may at any time direct that any person who is a party to the proceedings is to be removed as a party.

• (4) Unless the court orders otherwise, P shall not be named as a respondent to any proceedings.

• (5) A party to the proceedings is bound by any order or direction of the court made in the course of those proceedings.

Persons to be bound as if parties

9.14

• (1) The persons mentioned in paragraph (2) shall be bound by any order made or directions given by the court in the same way that a party to the proceedings is so bound.

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

• (a) P; and

• (b) any person who has been served with or notified of an application form in accordance with these Rules.

Application to be joined as a party

9.15

• (1) Any person with sufficient interest may apply to the court to be joined as a party to the proceedings.

• (2) An application to be joined as a party must be made by filing an application notice in accordance with Part 10, which must—

• (a) state the full name and address of the person seeking to be joined as a party to the proceedings;

• (b) state that person’s interest in the proceedings;

• (c) state whether that person consents to the application;

• (d) state whether that person opposes the application and, if so, set out the grounds for doing so;

• (e) state whether that person proposes that an order different from that set out in the application form should be made and, if so, set out what that order is;

• (f) provide an address for service, which must be within the jurisdiction of the court; and

• (g) be signed by that person or that person’s legal representative.

• (3) Subject to rules 15.2 and 15.5 (restriction on filing an expert’s report and court’s power to restrict expert evidence), a person’s application to be joined must be accompanied by—

• (a) a witness statement containing evidence of that person’s interest in the proceedings and, if that person proposes that an order different from that set out in the application form should be made, the evidence on which that person intends to rely; and

• (b) a sufficient number of copies of the application notice to enable service of the application on every other party to the proceedings.

• (4) The court must serve the application notice and any accompanying documents on all parties to the proceedings.

• (5) The court must consider whether to join a person applying under this rule as a party to the proceedings and, if it decides to do so, must make an order to that effect.

Application for removal as a party to proceedings

9.16

A person who wishes to be removed as a party to the proceedings must apply to the court for an order to that effect in accordance with Part 10.

PART 10 — APPLICATIONS WITHIN PROCEEDINGS

Types of applications for which the Part 10 procedure may be used	Rule 10.1
Application notice to be filed	Rule 10.2
What an application notice must include	Rule 10.3
Service of an application notice	Rule 10.4
Applications without notice	Rule 10.5
Security for costs	Rule 10.6
Conditions to be satisfied	Rule 10.7
Security for costs other than from the applicant	Rule 10.8
Security for costs of an appeal	Rule 10.9
Interim remedies	Interim remedies
Orders for interim remedies	Rule 10.10

Types of applications for which the Part 10 procedure may be used

10.1

• (1) The Part 10 procedure is the procedure set out in this Part.

• (2) The Part 10 procedure may be used if the application is made by any person—

• (a) in the course of existing proceedings; or

• (b) as provided for in a rule or practice direction.

• (3) The court may grant an interim remedy before an application form has been issued only if—

• (a) the matter is urgent; or

• (b) it is otherwise necessary to do so in the interests of justice.

• (4) An application made during the course of existing proceedings includes an application made during appeal proceedings.

• (5) Where the application seeks solely to withdraw an existing application—

• (a) the applicant must file a written request for permission setting out succinctly the reasons for the request;

• (b) the request must be in an application notice;

• (c) the court may permit an application to be made orally at a hearing or in such alternative written form as it thinks fit.

• (6) Where the court deals with a written request under paragraph (5) without a hearing, rule 13.4 applies to any order so made.

(Rule 13.2 requires the court’s permission to withdraw proceedings.)

Application notice to be filed

10.2

• (1) Subject to paragraph (5), the applicant must file an application notice to make an application under this Part.

• (2) The applicant must, when filing the application notice, file the evidence on which the applicant relies (unless such evidence has already been filed).

• (3) The court must issue the application notice and, if there is to be a hearing, give notice of the date on which the matter is to be heard by the court.

• (4) Notice under paragraph (3) must be given to—

• (a) the applicant;

• (b) anyone who is named as a respondent in the application notice (if not otherwise a party to the proceedings);

• (c) every party to the proceedings; and

• (d) any other person, as the court may direct.

• (5) An applicant may make an application under this Part without filing an application notice if—

• (a) this is permitted by any rule or practice direction; or

• (b) the court dispenses with the requirement for an application notice.

• (6) If the applicant makes an application without giving notice, the evidence in support of the application notice must state why notice has not been given.

What an application notice must include

10.3

An application notice must state—

• (a) what order or direction the applicant is seeking;

• (b) briefly, the grounds on which the applicant is seeking the order or direction; and

• (c) such other information as may be required by any rule or practice direction.

Service of an application notice

10.4

• (1) Subject to paragraphs (4) and (5), the applicant must serve a copy of the application notice on—

• (a) anyone who is named as a respondent in the application notice (if not otherwise a party to the proceedings);

• (b) every party to the proceedings; and

• (c) any other person, as the court may direct,

as soon as possible and in any event within 14 days of the date on which it was issued.

• (2) The application notice must be accompanied by a copy of the evidence filed in support.

• (3) The applicant must file a certificate of service within 7 days beginning with the date on which the documents were served.

• (4) This rule does not require a copy of evidence to be served on a person on whom it has already been served, but the applicant must in such a case give to that person notice of the evidence on which the applicant intends to rely.

• (5) An application may be made without serving a copy of the application notice if this is permitted by—

• (a) a rule;

• (b) a practice direction; or

• (c) the court.

Applications without notice

10.5

• (1) This rule applies where the court has dealt with an application which was made without notice having been given to any person.

• (2) Where the court makes an order, whether granting or dismissing the application, the applicant must, as soon as practicable or within such period as the court may direct, serve the documents mentioned in paragraph (3) on—

• (a) anyone named as a respondent in the application notice (if not otherwise a party to the proceedings);

• (b) every party to the proceedings; and

• (c) any other person, as the court may direct.

• (3) The documents referred to in paragraph (2) are—

• (a) a copy of the application notice;

• (b) the court’s order; and

• (c) any evidence filed in support of the application.

(Rule 13.4 provides for reconsideration of orders made without a hearing or without notice to a person.)

Security for costs

10.6

• (1) A respondent to any application may apply for security for the respondent’s costs of the proceedings.

• (2) An application for security for costs must be supported by written evidence.

• (3) Where the court makes an order for security for costs, it must—

• (a) determine the amount of security; and

• (b) direct—

• (i) the manner in which; and

• (ii) the time within which,

the security must be given.

Conditions to be satisfied

10.7

• (1) The court may make an order for security for costs under rule 10.6—

• (a) if it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and

• (b) if—

• (i) one or more of the conditions in paragraph (2) applies; or

• (ii) an enactment permits the court to require security for costs.

• (2) The conditions are—

• (a) the applicant is—

• (i) resident out of the jurisdiction; but

• (ii) not resident in a Brussels Contracting State, a State bound by the Lugano Convention or a Regulation State, as defined in section 1(3) of the Civil Jurisdiction and Judgments Act 1982[^f00015];

• (b) the applicant is a company or other body (whether incorporated inside or outside Great Britain) and there is reason to believe that it will be unable to pay the respondent’s costs if ordered to do so;

• (c) the applicant has changed address since proceedings were commenced with a view to avoiding the consequences of the litigation;

• (d) the applicant failed to give an address, or gave an incorrect address, in the application form commencing the proceedings;

• (e) the applicant is acting as a nominal applicant and there is reason to believe that the applicant will be unable to pay the respondent’s costs if ordered to do so;

• (f) the applicant has taken steps in relation to the applicant’s assets that would make it difficult to enforce an order for costs against the applicant.

Security for costs other than from the applicant

10.8

• (1) The respondent may seek an order against a person other than the applicant, and the court may make an order for security for costs against that person, if—

• (a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and

• (b) one or more of the conditions in paragraph (2) applies.

• (2) The conditions are that the person—

• (a) has assigned the right to the substantive matter to the applicant with a view to avoiding the possibility of a costs order being made against the person; or

• (b) has contributed or agreed to contribute to the applicant’s costs in return for a share of any money or property which the applicant may recover or be awarded in the proceedings; and

is a person against whom a costs order may be made.

(Rule 19.12 makes provision about costs orders against non-parties.)

Security for costs of an appeal

10.9

• (1) The court may order security for costs of an appeal against—

• (a) an appellant;

• (b) a respondent who also appeals,

on the same grounds as it may order security for costs against an applicant under rule 10.6.

• (2) The court may also make an order under paragraph (1) where the appellant or the respondent who also appeals is a limited company and there is reason to believe it will be unable to pay the costs of the other parties to the appeal should its appeal be unsuccessful.

Interim remedies

Orders for interim remedies

10.10

• (1) The court may grant the following interim remedies—

• (a) an interim injunction;

• (b) an interim declaration; or

• (c) any other interim order it considers appropriate.

• (2) Unless the court orders otherwise, a person on whom an application form is served under Part 9, or who is given notice of such an application, may not apply for an interim remedy before filing an acknowledgment of service or notification in accordance with Part 9.

• (3) This rule does not limit any other power of the court to grant interim relief.

PART 11 — DEPRIVATION OF LIBERTY

Deprivation of liberty	Rule 11.1

Deprivation of liberty

11.1

The practice direction to this Part sets out procedure governing—

• (a) applications to the court for orders relating to the deprivation, or proposed deprivation, of liberty of P; and

• (b) proceedings (for example, relating to costs or appeals) connected with or consequent on such applications.

PART 12 — HUMAN RIGHTS

General	Rule 12.1

General

12.1

• (1) A party who seeks to rely upon any provision of or right arising under the Human Rights Act 1998[^f00016] (“the 1998 Act”) or who seeks a remedy available under that Act must inform the court in the manner set out in the relevant practice direction specifying—

• (a) the Convention right (within the meaning of the 1998 Act) which it is alleged has been infringed and details of the alleged infringement; and

• (b) the remedy sought and whether this includes a declaration of incompatibility under section 4 of the 1998 Act.

• (2) The court may not make a declaration of incompatibility unless 21 days’ notice, or such other period of notice as the court directs, has been given to the Crown.

• (3) Where notice has been given to the Crown, a Minister or other person permitted by the 1998 Act shall be joined as a party on filing an application in accordance with rule 9.15 (application to be joined as a party).

PART 13 — JURISDICTION, WITHDRAWAL OF PROCEEDINGS, PARTICIPATION AND RECONSIDERATION

Disputing the jurisdiction of the court	Disputing the jurisdiction of the court
Procedure for disputing the court's jurisdiction	Rule 13.1
Withdrawal of proceedings	Withdrawal of proceedings
Permission required to withdraw proceedings	Rule 13.2
Participation in hearings	Participation in hearings
Participation in hearings	Rule 13.3
Reconsideration of court orders	Reconsideration of court orders
Orders made without a hearing or without notice to any person	Rule 13.4

Disputing the jurisdiction of the court

Procedure for disputing the court's jurisdiction

13.1

• (1) A person who wishes to—

• (a) dispute the court’s jurisdiction to hear an application; or

• (b) argue that the court should not exercise its jurisdiction,

may apply to the court at any time for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction that it may have.

• (2) An application under this rule must be—

• (a) made by using the form specified in the relevant practice direction; and

• (b) supported by evidence.

• (3) An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision, including—

• (a) setting aside the application;

• (b) discharging any order made;

• (c) staying the proceedings;

• (d) discharging any litigation friend or rule 1.2 representative.

Withdrawal of proceedings

Permission required to withdraw proceedings

13.2

• (1) Proceedings may only be withdrawn with the permission of the court.

• (2) An application to withdraw proceedings must be made in accordance with Part 10.

Participation in hearings

Participation in hearings

13.3

• (1) The court may hear P on the question of whether or not an order should be made, whether or not P is a party to the proceedings.

• (2) The court may proceed with a hearing in the absence of P if it considers that it would be appropriate to do so.

• (3) A person other than P who is served with or notified of the application may only take part in a hearing if—

• (a) that person files an acknowledgment in accordance with these Rules and is made a party to the proceedings; or

• (b) the court permits.

(Rule 1.2 deals with participation of P.)

Reconsideration of court orders

Orders made without a hearing or without notice to any person

13.4

• (1) This rule applies where the court makes an order—

• (a) without a hearing; or

• (b) without notice to any person who is affected by it.

• (2) Where this rule applies—

• (a) P;

• (b) any party to the proceedings; or

• (c) any other person affected by the order,

may apply to the court for reconsideration of the order made.

• (3) An application under paragraph (2) must be made—

• (a) within 21 days of the order being served or such other period as the court may direct; and

• (b) in accordance with Part 10.

• (4) The court shall—

• (a) reconsider the order without directing a hearing; or

• (b) fix a date for the matter to be heard and notify all parties to the proceedings, and such other persons as the court may direct, of that date.

• (5) Where an application is made in accordance with this rule, the court may affirm, set aside or vary any order made.

• (6) An order made by a court officer authorised under rule 2.3 may be reconsidered by any judge.

• (7) An order made by a Tier 1 Judge may be reconsidered by any judge.

• (8) An order made by a Tier 2 Judge may be reconsidered by any Tier 2 Judge or by a Tier 3 Judge.

• (9) An order made by a Tier 3 Judge may be reconsidered by any Tier 3 Judge.

• (10) In any case to which paragraphs (7) to (9) apply the reconsideration may be carried out by the judge who made the order being reconsidered.

• (11) No application may be made seeking a reconsideration of—

• (a) an order that has been made under paragraph (5); or

• (b) an order granting or refusing permission to appeal.

• (12) An appeal against an order made under paragraph (5) may be made in accordance with Part 20 (appeals).

• (13) Any order made without a hearing or without notice to any person, other than one made under paragraph (5) or one granting or refusing permission to appeal, must contain a statement of the right to apply for a reconsideration of the decision in accordance with this rule.

• (14) An application made under this rule may include a request that the court reconsider the matter at a hearing.

(Rule 2.3(2)(c) provides that a court officer authorised under that rule may not deal with an application for the reconsideration of an order made by that court officer or another court officer.)

PART 14 — ADMISSIONS, EVIDENCE AND DEPOSITIONS

Admissions	Admissions
Making an admission	Rule 14.1
Evidence	Evidence
Power of court to control evidence	Rule 14.2
Evidence of witnesses – general rule	Rule 14.3
Written evidence – general rule	Rule 14.4
Evidence by video link or other means	Rule 14.5
Service of witness statements for use at final hearing	Rule 14.6
Form of witness statement	Rule 14.7
Witness summaries	Rule 14.8
Affidavit evidence	Rule 14.9
Form of affidavit	Rule 14.10
Affidavit made outside the jurisdiction	Rule 14.11
Notarial acts and instruments	Rule 14.12
Summoning of witnesses	Rule 14.13
Power of court to direct a party to provide information	Rule 14.14
Depositions	Depositions
Evidence by deposition	Rule 14.15
Conduct of examination	Rule 14.16
Fees and expenses of examiners of the court	Rule 14.17
Examiners of the court	Rule 14.18
Enforcing attendance of a witness	Rule 14.19
Use of deposition at a hearing	Rule 14.20
Taking evidence outside the jurisdiction	Taking evidence outside the jurisdiction
. . .	. . .
. . .	. . .
Where a person to be examined is out of the jurisdiction – letter of request	Rule 14.23
Section 49 reports	Section 49 reports
Reports under section 49 of the Act	Rule 14.24
Written questions to person making a report under section 49	Rule 14.25

Admissions

Making an admission

14.1

• (1) Without prejudice to the ability to make an admission in any other way, a party may admit the truth of the whole or part of another party’s case by giving notice in writing.

• (2) The court may allow a party to amend or withdraw an admission.

Evidence

Power of court to control evidence

14.2

The court may—

• (a) control the evidence by giving directions as to—

• (i) the issues on which it requires evidence;

• (ii) the nature of the evidence which it requires to decide those issues; and

• (iii) the way in which the evidence is to be placed before the court;

• (b) use its power under this rule to exclude evidence that would otherwise be admissible;

• (c) allow or limit cross-examination;

• (d) admit such evidence, whether written or oral, as it thinks fit; and

• (e) admit, accept and act upon such information, whether oral or written, from P, any protected party or any person who lacks competence to give evidence, as the court considers sufficient, although not given on oath and whether or not it would be admissible in a court of law apart from this rule.

Evidence of witnesses – general rule

14.3

• (1) The general rule is that any fact which needs to be proved by evidence of a witness is to be proved—

• (a) where there is a final hearing, by the witness’s oral evidence; or

• (b) at any other hearing, or if there is no hearing, by the witness’s evidence in writing.

• (2) Where a witness is called to give oral evidence under paragraph (1)(a), the witness statement of that witness shall stand as his or her evidence in chief unless the court directs otherwise.

• (3) A witness giving oral evidence at the final hearing may, if the court permits—

• (a) amplify his or her witness statement; and

• (b) give evidence in relation to new matters which have arisen since the witness statement was made.

• (4) The court may so permit only if it considers that there is good reason not to confine the evidence of the witness to the contents of the witness statement.

• (5) This rule is subject to—

• (a) any provision to the contrary in these Rules or elsewhere; or

• (b) any order or direction of the court.

Written evidence – general rule

14.4

A party may not rely on written evidence unless—

• (a) it has been filed in accordance with these Rules or a practice direction;

• (b) it is expressly permitted by these Rules or a practice direction; or

• (c) the court gives permission.

Evidence by video link or other means

14.5

The court may allow a witness to give evidence through a video link or by other communication technology.

Service of witness statements for use at final hearing

14.6

• (1) A witness statement is a written statement by a person which contains the evidence which that person would be allowed to give orally.

• (2) The court will give directions about the service of any witness statement upon which a party intends to rely at the final hearing.

• (3) The court may give directions as to the order in which witness statements are to be served.

(Rules 5.2 and 14.7 require witness statements to be verified by a statement of truth.)

Form of witness statement

14.7

A witness statement must contain a statement of truth and comply with the requirements set out in the relevant practice direction.

Witness summaries

14.8

• (1) A party who wishes to file a witness statement for use at the final hearing, but is unable to do so, may apply without notice to be permitted to file a witness summary instead.

• (2) A witness summary is a summary of—

• (a) the evidence, if known, which would otherwise be included in a witness statement; or

• (b) if the evidence is not known, the matters about which the party filing the witness summary proposes to question the witness.

• (3) Unless the court directs otherwise, a witness summary must include the name and address of the intended witness.

• (4) Unless the court directs otherwise, a witness summary must be filed within the period in which a witness statement would have had to be filed.

• (5) Where a party files a witness summary, so far as practicable, rules 14.3(3)(a) (amplifying witness statements) and 14.6 (service of witness statements for use at final hearing) shall apply to the summary.

Affidavit evidence

14.9

Evidence must be given by affidavit instead of or in addition to a witness statement if this is required by the court, a provision contained in any rule, a practice direction or any other enactment.

Form of affidavit

14.10

An affidavit must comply with the requirements set out in the relevant practice direction.

Affidavit made outside the jurisdiction

14.11

A person may make an affidavit outside the jurisdiction in accordance with—

• (a) this Part; or

• (b) the law of the place where that person makes the affidavit.

Notarial acts and instruments

14.12

A notarial act or instrument may, without further proof, be received in evidence as duly authenticated in accordance with the requirements of law unless the contrary is proved.

Summoning of witnesses

14.13

• (1) The court may allow or direct any party to issue a witness summons requiring the person named in it to attend before the court and give oral evidence or produce any document to the court.

• (2) An application by a party for the issue of a witness summons may be made by filing an application notice with includes—

• (a) the name and address of the applicant and the applicant’s solicitor, if any;

• (b) the name, address and occupation of the proposed witness;

• (c) particulars of any document which the proposed witness is to be required to produce; and

• (d) the grounds on which the application is made.

• (3) The general rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the court, and the requirements of paragraph (6) have been complied with.

• (4) The court may direct that a witness summons shall be binding although it will be served less than 7 days before the date on which the witness is required to attend before the court.

• (5) Unless the court directs otherwise, a witness summons is to be served by the person making the application.

• (6) At the time of service the witness must be offered or paid—

• (a) a sum reasonably sufficient to cover the witness’s expenses in travelling to and from the court; and

• (b) such sum by way of compensation for loss of time as may be specified in the relevant practice direction.

• (7) The court may order that the witness is to be paid such general costs as it considers appropriate.

Power of court to direct a party to provide information

14.14

• (1) Where a party has access to information which is not reasonably available to the other party, the court may direct that party to prepare and file a document recording that information.

• (2) The court shall give directions about serving a copy of that document on the other parties.

Depositions

Evidence by deposition

14.15

• (1) A party may apply for an order for a person to be examined before the hearing takes place.

• (2) A person from whom evidence is to be obtained following an order under this rule is referred to as a “deponent” and the evidence is referred to as a “deposition”.

• (3) An order under this rule shall be for a deponent to be examined on oath before—

• (a) a circuit judge or a district judge, whether or not nominated as a judge of the court;

• (b) an examiner of the court; or

• (c) such other person as the court appoints.

• (4) The order may require the production of any document which the court considers is necessary for the purposes of the examination.

• (5) The order will state the date, time and place of the examination.

• (6) At the time of service of the order, the deponent must be offered or paid—

• (a) a sum reasonably sufficient to cover the deponent’s expenses in travelling to and from the place of examination; and

• (b) such sum by way of compensation for loss of time as may be specified in the relevant practice direction.

• (7) Where the court makes an order for a deposition to be taken, it may also order the party who obtained the order to file a witness statement or witness summary in relation to the evidence to be given by the person to be examined.

Conduct of examination

14.16

• (1) Subject to any directions contained in the order for examination, the examination must be conducted in the same way as if the witness were giving evidence at a final hearing.

• (2) If all the parties are present, the examiner may conduct the examination of a person not named in the order for examination if all the parties and the person to be examined consent.

• (3) The examiner must ensure that the evidence given by the witness is recorded in full.

• (4) The examiner must send a copy of the deposition—

• (a) to the person who obtained the order for the examination of the witness; and

• (b) to the court.

• (5) The court shall give directions as to the service of a copy of the deposition on the other parties.

Fees and expenses of examiners of the court

14.17

• (1) An examiner of the court may charge a fee for the examination and need not send the deposition to the court until the fee is paid, unless the court directs otherwise.

• (2) The examiner’s fees and expenses must be paid by the party who obtained the order for examination.

• (3) If the fees and expenses due to an examiner are not paid within a reasonable time, the examiner may report that fact to the court.

• (4) The court may order the party who obtained the order for examination to deposit in the court office a specified sum in respect of the examiner’s fees and, where it does so, the examiner shall not be asked to act until the sum has been deposited.

• (5) An order under this rule does not affect any decision as to the person who is ultimately to bear the costs of the examination.

Examiners of the court

14.18

• (1) The Lord Chancellor shall appoint persons to be examiners of the court.

• (2) The persons appointed shall be barristers or solicitor-advocates who have been practising for a period of not less than 3 years.

• (3) The Lord Chancellor may revoke an appointment at any time.

• (4) In addition to persons appointed in accordance with this rule, examiners appointed under rule 34.15 of the Civil Procedure Rules 1998 may act as examiners in the court.

Enforcing attendance of a witness

14.19

• (1) If a person served with an order to attend before an examiner—

• (a) fails to attend; or

• (b) refuses to be sworn for the purpose of the examination or to answer any lawful question or produce any document at the examination,

a certificate of that person’s failure or refusal, signed by the examiner, must be filed by the party requiring the deposition.

• (2) On the certificate being filed, the party requiring the deposition may apply to the court for an order requiring that person to attend or to be sworn or to answer any question or produce any document, as the case may be.

• (3) An application for an order under this rule may be made without notice.

• (4) The court may order the person against whom an order is sought or made under this rule to pay any costs resulting from that person’s failure or refusal.

Use of deposition at a hearing

14.20

• (1) A deposition ordered under rule 14.15, 14.22 or 14.23 may be put in evidence at a hearing unless the court orders otherwise.

• (2) A party intending to put a deposition in evidence at a hearing must file notice of intention to do so on the court and serve the notice on every other party.

• (3) Unless the court directs otherwise, that party must file the notice at least 14 days before the day fixed for the hearing.

• (4) The court may require a deponent to attend the hearing and give evidence orally.

Taking evidence outside the jurisdiction

Interpretation

14.21

In this rule and rules 14.22 and 14.23—

• (a) “Regulation State” has the same meaning as “Member State” in the Taking of Evidence Regulation, that is, all Member States except Denmark; and

• (b) “the Taking of Evidence Regulation” means Council Regulation (EC) No. 1206/2001 of 28 May 2001 on co-operation between the courts of Member States in the taking of evidence in civil and commercial matters[^f00017].

Where a person to be examined is in another Regulation State

14.22

• (1) This rule applies where a party wishes to take a deposition from a person who is—

• (a) outside the jurisdiction; and

• (b) in a Regulation State.

• (2) The court may order the issue of the request to a designated court (“the requested court”) in the Regulation State in which the proposed deponent is.

• (3) If the court makes an order for the issue of a request, the party who sought the order must file—

• (a) a draft Form A, as set out in the Annex to the Taking of Evidence Regulation (request for the taking of evidence);

• (b) except where paragraph (4) applies, a translation of the form;

• (c) an undertaking to be responsible for the costs sought by the requested court in relation to—

• (i) fees paid to experts and interpreters; and

• (ii) where requested by that party, the use of special procedure or communications technology; and

• (d) an undertaking to be responsible for the court’s expenses.

• (4) There is no need to file a translation if—

• (a) English is one of the official languages of the Regulation State where the examination is to take place; or

• (b) the Regulation State has indicated, in accordance with the Taking of Evidence Regulation, that English is a language which it will accept.

• (5) Where article 17 of the Taking of Evidence Regulation (direct taking of evidence by the requested court) allows evidence to be taken directly in another Regulation State, the court may make an order for the submission of a request in accordance with that article.

• (6) If the court makes an order for the submission of a request under paragraph (5), the party who sought the order must file—

• (a) a draft Form I as set out in the Annex to the Taking of Evidence Regulation (request for direct taking of evidence);

• (b) except where paragraph (4) applies, a translation of the form; and

• (c) an undertaking to be responsible for the requested court’s expenses.

Where a person to be examined is out of the jurisdiction – letter of request

14.23

• (1) This rule applies where a party wishes to take a deposition from a person who is—

• (a) out of the jurisdiction; and

• (b) not in a Regulation State within the meaning of rule 14.21.

• (2) The court may order the issue of a letter of request to the judicial authorities of the country in which the proposed deponent is.

• (3) A letter of request is a request to a judicial authority to take the evidence of that person, or arrange for it to be taken.

• (4) If the government of a country permits a person appointed by the court to examine a person in that country, the court may make an order appointing a special examiner for that purpose.

• (5) A person may be examined under this rule on oath or affirmation in accordance with any procedure permitted in the country in which the examination is to take place.

• (6) If the court makes an order for the issue of a letter of request, the party who sought the order must file—

• (a) the following documents and, except where paragraph (7) applies, a translation of them—

• (i) a draft letter of request;

• (ii) a statement of the issues relevant to the proceedings; and

• (iii) a list of questions or the subject matter of questions to be put to the person to be examined; and

• (b) an undertaking to be responsible for the Secretary of State’s expenses.

• (7) There is no need to file a translation if—

• (a) English is one of the official languages of the country where the examination is to take place; or

• (b) a practice direction has specified that country as a country where no translation is necessary.

Section 49 reports

Reports under section 49 of the Act

14.24

• (1) This rule applies where the court requires a report to be made to it under section 49 of the Act.

• (2) It is the duty of the person who is required to make the report to help the court on the matters within that person’s expertise.

• (3) Unless the court directs otherwise, the person making the report must—

• (a) contact or seek to interview such persons as the person making the report thinks appropriate or as the court directs;

• (b) to the extent that it is practicable and appropriate to do so, ascertain what P’s wishes and feelings are, and the beliefs and values that would be likely to influence P if P had the capacity to make a decision in relation to the matters to which the application relates;

• (c) describe P’s circumstances; and

• (d) address such other matters as are required in a practice direction or as the court may direct.

• (4) The court will send a copy of the report to the parties and to such persons as the court may direct.

• (5) Subject to paragraphs (6) and (7), the person who is required to make the report may examine and take copies of any documents in the court records.

• (6) The court may direct that the right to inspect documents under this rule does not apply in relation to such documents, or descriptions of documents, as the court may specify.

• (7) The court may direct that any information is to be provided to the maker of the report on an edited basis.

Written questions to person making a report under section 49

14.25

• (1) Where a report is made under section 49 the court may, on the application of any party, permit written questions relevant to the issues before the court to be put to the person by whom the report was made.

• (2) The questions sought to be put to the maker of the report shall be submitted to the court, and the court may put them to the maker of the report with such amendments (if any) as it thinks fit and the maker of the report shall give replies in writing to the questions so put.

• (3) The court shall send a copy of the replies given by the maker of the report under this rule to the parties and to such other persons as the court may direct.

PART 15 — EXPERTS

References to expert	Rule 15.1
Restriction on filing an expert's report	Rule 15.2
Duty to restrict expert evidence	Rule 15.3
Experts – overriding duty to the court	Rule 15.4
Court's power to restrict expert evidence	Rule 15.5
General requirement for expert evidence to be given in a written report	Rule 15.6
Written questions to experts	Rule 15.7
Contents of expert's report	Rule 15.8
Use by one party of expert's report disclosed by another	Rule 15.9
Discussions between experts	Rule 15.10
Expert's right to ask court for directions	Rule 15.11
Court's power to direct that evidence is to be given by a single joint expert	Rule 15.12
Instructions to a single joint expert	Rule 15.13

References to expert

15.1

A reference to an expert in this Part—

• (a) is to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings; but

• (b) does not include any person instructed to make a report under section 49 of the Act.

Restriction on filing an expert's report

15.2

• (1) No person may file expert evidence unless the court or a practice direction permits, or if it is filed with the application form and is evidence—

• (a) that P is a person who lacks capacity to make a decision or decisions in relation to the matter or matters to which the application relates;

• (b) as to P’s best interests; or

• (c) that is required by any rule or practice direction to be filed with the application form.

• (2) An applicant may only rely on any expert evidence so filed in support of the application form to the extent and for the purposes that the court allows.

(Rule 9.4(a) requires the applicant to file any evidence upon which the applicant wishes to rely with the application form.)

Duty to restrict expert evidence

15.3

• (1) Expert evidence shall be restricted to that which is necessary to assist the court to resolve the issues in the proceedings.

• (2) The court may give permission to file or adduce expert evidence as mentioned in rule 15.2(1) and 15.5(1) only if satisfied that the evidence—

• (a) is necessary to assist the court to resolve the issues in the proceedings; and

• (b) cannot otherwise be provided either—

• (i) by a rule 1.2 representative; or

• (ii) in a report under section 49 of the Act.

Experts – overriding duty to the court

15.4

• (1) It is the duty of the expert to help the court on the matters within the expert’s expertise.

• (2) This duty overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid.

Court's power to restrict expert evidence

15.5

• (1) Subject to rule 15.2, no party may file or adduce expert evidence unless the court or a practice direction permits.

• (2) When a party applies for a direction under this rule, that party must—

• (a) identify the field in respect of which that party wishes to rely upon expert evidence, and the issues to which the expert evidence is to relate;

• (b) where practicable, identify the expert in that field upon whose evidence the party wishes to rely;

• (c) provide any other material information about the expert;

• (d) state whether the expert evidence could be obtained from a single joint expert;

• (e) provide any other information or documents required by a practice direction; and

• (f) provide a draft letter of instruction to the expert.

• (3) When deciding whether to give permission as mentioned in paragraph (1), the court is to have regard in particular to—

• (a) the issues to which the expert evidence would relate;

• (b) the questions which the expert would answer;

• (c) the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings;

• (d) any failure to comply with any direction of the court about expert evidence; and

• (e) the cost of the expert evidence.

• (4) Where a direction is given under this rule, the court shall specify—

• (a) the field or fields in respect of which the expert evidence is to be provided;

• (b) the questions which the expert is required to answer; and

• (c) the date by which the expert is to provide the evidence.

• (5) The court may specify the person who is to provide the evidence referred to in paragraph (3).

• (6) Where a direction is given under this rule for a party to call an expert or put in evidence an expert’s report, the court shall give directions for the service of the report on the parties and on such other persons as the court may direct.

• (7) The court may limit the amount of the expert’s fees and expenses that the party who wishes to rely upon the expert may recover from any other party.

General requirement for expert evidence to be given in a written report

15.6

Expert evidence is to be given in a written report unless the court directs otherwise.

Written questions to experts

15.7

• (1) A party may put written questions to—

• (a) an expert instructed by another party; or

• (b) a single joint expert appointed under rule 15.12,

about a report prepared by such a person.

• (2) Written questions under paragraph (1)—

• (a) may be put once only;

• (b) must be put within 28 days beginning with the date on which the expert’s report was served;

• (c) must be for the purpose only of clarification of the report; and

• (d) must be copied and sent to the other parties at the same time as they are sent to the expert.

• (3) Paragraph (2) does not apply in any case where—

• (a) the court permits it to be done on a further occasion;

• (b) the other party or parties agree; or

• (c) any practice direction provides otherwise.

• (4) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report.

• (5) Paragraph (6) applies where—

• (a) a party has put a written question to an expert instructed by another party in accordance with this rule; and

• (b) the expert does not answer that question.

• (6) The court may make one or both of the following orders in relation to the party who instructed the expert—

• (a) that the party may not rely upon the evidence of that expert; or

• (b) that the party may not recover the fees and expenses of that expert, or part of them, from any other party.

• (7) Unless the court directs otherwise, and subject to any final costs order that may be made, the instructing party is responsible for the payment of the expert’s fees and expenses, including the expert’s costs of answering questions put by any other party.

Contents of expert's report

15.8

• (1) The court may give directions as to the matters to be covered in an expert’s report.

• (2) An expert’s report must comply with the requirements set out in the relevant practice direction.

• (3) At the end of an expert’s report there must be a statement that the expert—

• (a) understands his or her duty to the court; and

• (b) has complied with that duty.

• (4) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

• (5) The instructions to the expert shall not be privileged against disclosure.

Use by one party of expert's report disclosed by another

15.9

Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at any hearing in the proceedings.

Discussions between experts

15.10

• (1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to—

• (a) identify and discuss the expert issues in the proceedings; and

• (b) where possible, reach an agreed opinion on those issues.

• (2) The court may specify the issues which the experts must discuss.

• (3) The court may direct that following a discussion between the experts they must prepare a statement for the court showing—

• (a) those issues on which they agree; and

• (b) those issues on which they disagree and a summary of their reasons for disagreeing.

• (4) Unless the court directs otherwise, the content of the discussions between experts may be referred to at any hearing or at any stage in the proceedings.

Expert's right to ask court for directions

15.11

• (1) An expert may file a written request for directions to assist in carrying out the expert’s functions as an expert.

• (2) An expert must, unless the court directs otherwise, provide a copy of any proposed request for directions under paragraph (1)—

• (a) to the party instructing the expert, at least 7 days before filing the request; and

• (b) to all other parties, at least 4 days before filing it.

• (3) The court, when it gives directions, may also direct that a party be served with a copy of the directions.

Court's power to direct that evidence is to be given by a single joint expert

15.12

• (1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by one expert only.

• (2) The parties wishing to submit the expert evidence are called “the instructing parties”.

• (3) Where the instructing parties cannot agree who should be the expert, the court may—

• (a) select the expert from a list prepared or identified by the instructing parties; or

• (b) direct the manner by which the expert is to be selected.

Instructions to a single joint expert

15.13

• (1) Where the court gives a direction under rule 15.12 for a single joint expert to be used, the instructions are to be contained in a jointly agreed letter unless the court directs otherwise.

• (2) Where the instructions are to be contained in a jointly agreed letter, in default of agreement the instructions may be determined by the court on the written request of any instructing party copied to the other instructing parties.

• (3) Where the court permits the instructing parties to give separate instructions to a single joint expert, unless the court directs otherwise, when an instructing party gives instructions to the expert, that party must at the same time send a copy of the instructions to the other instructing party or parties.

• (4) The court may give directions about—

• (a) the payment of the expert’s fees and expenses; and

• (b) any inspection, examination or experiments which the expert wishes to carry out.

• (5) The court may, before an expert is instructed, limit the amount that can be paid by way of fees and expense to the expert.

• (6) Unless the court directs otherwise, and subject to any final costs order that may be made, the instructing parties are jointly and severally liable for the payment of the expert’s fees and expenses.

PART 16 — DISCLOSURE

Meaning of disclosure	Rule 16.1
General or specific disclosure	Rule 16.2
Procedure for general or specific disclosure	Rule 16.3
Ongoing duty of disclosure	Rule 16.4
Right to inspect documents	Rule 16.5
Inspection and copying of documents	Rule 16.6
Claim to withhold inspection or disclosure of documents	Rule 16.7
Consequence of failure to disclose documents or permit inspection	Rule 16.8

Meaning of disclosure

16.1

A party discloses a document by stating that the document exists or has existed.

General or specific disclosure

16.2

• (1) The court may either on its own initiative or on the application of a party make an order to give general or specific disclosure.

• (2) General disclosure requires a party to disclose—

• (a) the documents on which that party relies; and

• (b) the documents which—

• (i) adversely affect that party’s own case;

• (ii) adversely affect another party’s case; or

• (iii) support another party’s case.

• (3) An order for specific disclosure is an order that a party must do one or more of the following things—

• (a) disclose documents or classes of documents specified in the order;

• (b) carry out a search to the extent stated in the order; or

• (c) disclose any document located as a result of that search.

• (4) A party’s duty to disclose documents is limited to documents which are or have been in that party’s control.

• (5) For the purposes of paragraph (4) a party has or has had a document in that party’s control if—

• (a) it is or was in that party’s physical possession;

• (b) that party has or has had possession of it; or

• (c) that party has or has had a right to inspect or take copies of it.

Procedure for general or specific disclosure

16.3

• (1) This rule applies where the court makes an order under rule 16.2 to give general or specific disclosure.

• (2) Each party must make, and serve on every other party, a list of documents to be disclosed.

• (3) A copy of each list must be filed within 7 days of the date on which it is served.

• (4) The list must identify the documents in a convenient order and manner and as concisely as possible.

• (5) The list must indicate—

• (a) the documents in respect of which the party claims a right or duty to withhold inspection (see rule 16.7); and

• (b) the documents that are no longer in the party’s control, stating what has happened to them.

Ongoing duty of disclosure

16.4

• (1) Where the court makes an order to give general or specific disclosure under rule 16.2, any party to whom the order applies is under a continuing duty to provide such disclosure as is required by the order until the proceedings are concluded.

• (2) If a document to which the duty of disclosure imposed by paragraph (1) extends comes to a party’s notice at any time during the proceedings, that party must immediately notify every other party.

Right to inspect documents

16.5

• (1) A party to whom a document has been disclosed has a right to inspect any document disclosed to that party except where—

• (a) the document is no longer in the control of the party who disclosed it; or

• (b) the party disclosing the document has a right or duty to withhold inspection of it.

• (2) The right to inspect disclosed documents extends to any document mentioned in—

• (a) a document filed or served in the course of the proceedings by any other party; or

• (b) correspondence sent by any other party.

Inspection and copying of documents

16.6

• (1) Where a party has a right to inspect a document, that party—

• (a) must give the party who disclosed the document written notice of the wish to inspect it; and

• (b) may request a copy of the document.

• (2) Not more than 14 days after the date on which the party who disclosed the document received the notice under paragraph (1)(a), that party must permit inspection of the document at a convenient place and time.

• (3) Where a party has requested a copy of the document, the party who disclosed the document must supply the requesting party with a copy not more than 14 days after the date on which the request was received.

• (4) For the purposes of paragraph (2), the party who disclosed the document must give reasonable notice of the time and place for inspection.

• (5) For the purposes of paragraph (3), the party requesting a copy of the document is responsible for the payment of reasonable copying costs, subject to any final costs order that may be made.

Claim to withhold inspection or disclosure of documents

16.7

• (1) A party who wishes to claim a right or duty to withhold inspection of a document, or part of a document, must state in writing—

• (a) that that party has such a right or duty; and

• (b) the grounds on which that party claims that right or duty.

• (2) The statement must be made in the list in which the document is disclosed (see rule 16.3(2)).

• (3) A party may, by filing an application notice in accordance with Part 10, apply to the court to decide whether the claim made under paragraph (1) should be upheld.

Consequence of failure to disclose documents or permit inspection

16.8

A party may not rely upon any document which that party fails to disclose or in respect of which that party fails to permit inspection, unless the court permits.

PART 17 — LITIGATION FRIENDS AND RULE 1.2 REPRESENTATIVES

SECTION 1 – LITIGATION FRIENDS	SECTION 1 – LITIGATION FRIENDS
Who may act as a litigation friend	Rule 17.1
Requirement for a litigation friend	Rule 17.2
Litigation friend without a court order	Rule 17.3
Litigation friend by court order	Rule 17.4
Court's power to prevent a person from acting as a litigation friend or to bring an end to an appointment of a person as a litigation friend or to appoint another one	Rule 17.5
Appointment of litigation friend by court order – supplementary	Rule 17.6
Procedure where appointment of a litigation friend comes to an end for a child	Rule 17.7
Practice direction in relation to litigation friends	Rule 17.8
SECTION 2 – RULE 1.2 REPRESENTATIVES	SECTION 2 – RULE 1.2 REPRESENTATIVES
Who may act as a rule 1.2 representative for P	Rule 17.9
Rule 1.2 representative by court order	Rule 17.10
Application by rule 1.2 representative or by P for directions	Rule 17.11
Court's power to prevent a person from acting as a rule 1.2 representative or to bring an end to an appointment of a person as a rule 1.2 representative or to appoint another one	Rule 17.12
Appointment of rule 1.2 representative by court order – supplementary	Rule 17.13
Practice direction in relation to rule 1.2 representatives	Rule 17.14

SECTION 1 – LITIGATION FRIENDS

Who may act as a litigation friend

17.1

• (1) A person may act as a litigation friend on behalf of a person mentioned in paragraph (2) if that person—

• (a) can fairly and competently conduct proceedings on behalf of that person; and

• (b) has no interests adverse to those of that person.

• (2) The persons for whom a litigation friend may act are—

• (a) P;

• (b) a child;

• (c) a protected party.

Requirement for a litigation friend

17.2

• (1) This rule does not apply to P (whether P is an adult or a child).

• (2) A protected party (if a party to the proceedings) must have a litigation friend.

• (3) A child (if a party to the proceedings) must have a litigation friend to conduct those proceedings on that child’s behalf unless the court makes an order under paragraph (4).

• (4) The court may make an order permitting a child to conduct proceedings without a litigation friend.

• (5) An application for an order under paragraph (4)—

• (a) may be made by the child;

• (b) if the child already has a litigation friend, must be made on notice to the litigation friend; and

• (c) if the child has no litigation friend, may be made without notice.

• (6) Where—

• (a) the court has made an order under paragraph (4); and

• (b) it subsequently appears to the court that it is desirable for a litigation friend to conduct the proceedings on behalf of the child,

the court may appoint a person to be the child’s litigation friend.

Litigation friend without a court order

17.3

• (1) This rule does not apply—

• (a) in relation to P;

• (b) where the court has appointed a person under rule 17.4 or 17.5; or

• (c) where the Official Solicitor is to act as a litigation friend.

• (2) A deputy with the power to conduct legal proceedings in the name of a protected party or on the protected party’s behalf is entitled to be a litigation friend of the protected party in any proceedings to which the deputy’s power relates.

• (3) If no-one has been appointed by the court or, in the case of a protected party, there is no deputy with the power to conduct proceedings, a person who wishes to act as a litigation friend must—

• (a) file a certificate of suitability stating that they satisfy the conditions in rule 17.1(1); and

• (b) serve the certificate of suitability on—

• (i) the person on whom an application form is to be served in accordance with rule 6.4 (service on children and protected parties); and

• (ii) every other person who is a party to the proceedings.

• (4) If the person referred to in paragraph (2) wishes to act as a litigation friend for the protected party, that person must file and serve on the persons mentioned in paragraph (3)(b) a copy of the court order which appointed that person.

Litigation friend by court order

17.4

• (1) The court may make an order appointing—

• (a) the Official Solicitor; or

• (b) some other person,

to act as a litigation friend for a protected party, a child or P.

• (2) The court may make an order under paragraph (1)—

• (a) either on its own initiative or on the application of any person; but

• (b) only with the consent of the person to be appointed.

• (3) An application for an order under paragraph (1) must be supported by evidence.

• (4) The court may not appoint a litigation friend under this rule unless it is satisfied that the person to be appointed satisfies the conditions in rule 17.1(1).

• (5) The court may at any stage of the proceedings give directions as to the appointment of a litigation friend.

(Rule 1.2 requires the court to consider how P should participate in the proceedings, which may be by way of being made a party and the appointment of a litigation friend under this Part.)

Court's power to prevent a person from acting as a litigation friend or to bring an end to an appointment of a person as a litigation friend or to appoint another one

17.5

• (1) The court may either on its own initiative or on the application of any person—

• (a) direct that a person may not act as a litigation friend;

• (b) bring to an end a litigation friend’s appointment; or

• (c) appoint a new litigation friend in place of an existing one.

• (2) If an application for an order under paragraph (1) is based on the conduct of the litigation friend, it must be supported by evidence.

• (3) The court may not appoint a litigation friend under this rule unless it is satisfied that the person to be appointed satisfies the conditions in rule 17.1(1).

• (4) The appointment of a litigation friend continues until brought to an end by court order.

(Rule 13.1 (procedure for disputing the court’s jurisdiction) applies if P has capacity in relation to the matter or matters to which the application relates.)

Appointment of litigation friend by court order – supplementary

17.6

The applicant must serve a copy of an application for an order under rule 17.4 or 17.5 on—

• (a) the person on whom an application form is to be served in accordance with rule 6.4 (service on children and protected parties);

• (b) every other person who is a party to the proceedings;

• (c) any person who is the litigation friend, or who is purporting to act as the litigation friend, when the application is made; and

• (d) unless that person is the applicant, the person who it is proposed should be the litigation friend,

as soon as practicable and in any event within 14 days of the date on which the application was issued.

Procedure where appointment of a litigation friend comes to an end for a child

17.7

When a child reaches 18, provided the child is neither—

• (a) P; nor

• (b) a protected party,

the litigation friend’s appointment ends and the child must serve notice on every other party—

• (i) stating that the child has reached full age;

• (ii) stating that the appointment of the litigation friend has ended; and

• (iii) providing an address for service.

Practice direction in relation to litigation friends

17.8

A practice direction may make additional or supplementary provision in relation to litigation friends.

SECTION 2 – RULE 1.2 REPRESENTATIVES

Who may act as a rule 1.2 representative for P

17.9

A person may act as an accredited legal representative, or a representative, for P, if that person can fairly and competently discharge his or her functions on behalf of P.

Rule 1.2 representative by court order