Inserts new Orders 53 and 54

10 The following new Orders are inserted immediately after Order 52 of the Rules of the Supreme Court 1985 —

“Order 53

APPLICATIONS FOR JUDICIAL REVIEW

53/1 Cases appropriate for application for judicial review

1 (1) An application for an order of mandamus, prohibition or certiorari, shall be made by way of an application for judicial review in accordance with the provisions of this Order.

(2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to —

(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari,

(b) the nature of the persons and bodies against whom relief may be granted by way of such an order, and

(c) all the circumstances of the case,

it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.

53/2 Joinder of claims for relief

2 On an application for judicial review any relief mentioned in rule 1(1) or (2) may be claimed as an alternative or in addition to any other relief so mentioned if it arises out of or relates to or is connected with the same matter.

53/3 Grant of leave to apply for judicial review

3 (1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

(2) An application for leave must be made ex parte to a Judge by filing in the Registry —

(a) a notice in Form No. 86A containing a statement of —

(i) the name and description of the applicant,

(ii) the relief sought and the grounds upon which it is sought,

(iii) the name and address of the applicant’s attorney (if any) and

(iv) the applicant’s address for service; and

(b) an affidavit verifying the facts relied on.

(3) The Judge may determine the application without a hearing, unless a hearing is requested in the notice of application, and need not sit in open Court.

(4) Where the application for leave is refused by the Judge, or is granted on terms, the applicant may renew it by applying to a Judge sitting in open Court:

Provided that no application for leave may be renewed in any non-criminal cause or matter in which the Judge has refused leave under paragraph (3) after a hearing.

(5) In order to renew his application for leave the applicant must, within ten days of being served with notice of the Judge’s refusal, lodge in the Registry notice of his intention in Form No. 86B.

(6) Without prejudice to its powers under Order 20, rule 8 the Court hearing an application for leave may allow the applicant’s statement to be amended, whether by specifying different or additional grounds or relief or otherwise, on such terms, if any, as it thinks fit.

(7) The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

(8) Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order, conviction or other proceeding which is subject to appeal and a time is limited for the bringing of the appeal, the Court may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

(9) If the Court grants leave, it may impose such terms as to costs and as to giving security as it thinks fit.

(10) Where leave to apply for judicial review is granted, then —

(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders;

(b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.

53/4 Delay in applying for relief

4 (1) An application for leave to apply for judicial review shall be made promptly and in any event within six months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

(3) Paragraph (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.

53/5 Mode of applying for judicial review

5 (1) In any criminal cause or matter, where leave has been granted to make an application for judicial review, the application shall be made by originating motion to a Judge sitting in open Court.

(2) In any other such cause or matter, the application shall be made by originating motion to a judge sitting in open Court, unless the Court directs that it shall be made by originating summons to a Judge in Chambers.

Any such direction shall be without prejudice to the Judge’s powers under Order 32, rule 13.

(3) The notice of motion or summons must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the Court to do any act in relation to the proceedings or to quash them or any order made therein, the notice or summons must also be served on the Clerk or Registrar of the Court and, where any objection to the conduct of the Judge is to be made, on the Judge.

(4) Unless the Court granting leave has otherwise directed, there must be at least ten days between the service of the notion of motion or summons and the hearing.

(5) A motion must be entered for hearing within fourteen days after the grant of leave.

(6) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the notice of motion or summons must be filed before the motion or summons is entered for hearing and, if any person who ought to be served under this rule has not been served the affidavit must state that fact and the reason for it; and the affidavit shall be before the Court on the hearing of the motion or summons.

(7) If on the hearing of the motion or summons the Court is of opinion that any person who ought, whether under this rule or otherwise, to have been served has not been served, the Court may adjourn the hearing on such terms (if any) as it may direct in order that the notice or summons may be served on that person.

53/6 Statements and affidavits

6 (1) Copies of the statement in support of an application for leave under rule 3 must be served with the notice of motion or summons and, subject to paragraph (2) no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement.

(2) The Court may on hearing of the motion or summons allow the applicant to amend his statement, whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as it thinks fit and may allow further affidavits to be used by him.

(3) Where the applicant intends to ask to be allowed to amend his statement or to use further affidavits, he shall give notice of his intention and of any proposed amendment to every other party.

(4) Any respondent who intends to use an affidavit at the hearing shall file it in the Registry and give notice thereof to the applicant as soon as practicable and in any event, unless the Court otherwise directs, within fifty-six days after service upon him of the documents required to be served by paragraph (1).

(5) Each party to the application must supply to every other party on demand and on payment of the proper charges copies of every affidavit which he proposes to use at the hearing, including, in the case of the applicant, the affidavit in support of the application for leave under rule 3.

53/7 Claim for damages

7 (1) On an application for judicial review the Court may, subject to paragraph (2) award damages to the applicant if —

(a) he has included in the statement in support of his application for leave under rule 3 a claim for damages arising from any matter to which the application relates, and

(b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.

(2) Order 18, rule 12, shall apply to a statement relating to a claim for damages as it applies to a pleading.

53/8 Application for discovery, interrogatories, cross-examination, etc.

8 (1) Unless the Court otherwise directs, any interlocutory application in proceedings on an application for judicial review may be made to a judge or the Registrar.

In this paragraph “interlocutory application” includes an application for an order under Order 24 or 26 or Order 38, rule 2 (3) or for an order dismissing the proceedings by consent of the parties.

(2) In relation to an order made by the Registrar pursuant to paragraph (1), Order 58, rule 1, shall, where the application for judicial review is to be heard by a Judge in Court, have effect as if a reference to a Judge in Court were substituted for the reference to a Judge in Chambers.

(3) This rule is without prejudice to any statutory provision or rule of law restricting the making of an order against the Crown.

53/9 Hearing of application for judicial review

9 (1) On the hearing of any motion or summons under rule 5, any person who desires to be heard in opposition to the motion or summons, 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 or the summons.

(2) Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion or summons he has lodged in the Registry a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the Court hearing the motion or summons.

(3) Where an order of certiorari is made in any such case as it referred to in paragraph (2) the order shall, subject to paragraph (4) direct that the proceedings shall be quashed forthwith on their removal into the Court.

(4) Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction or reconsider it and reach a decision in accordance with the findings of the Court.

(5) Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ; and Order 28, rule 8, shall apply as if, in the case of an application made by motion, it had been made by summons.

53/10 Saving for person acting in obedience to mandamus

10 No action or proceeding shall be begun or prosecuted against any person in respect of anything done in obedience to an order of mandamus.

53/11 and 53/12 [blank]

53/13 Appeal from Judge’s order

13 No appeal shall lie from an order made under paragraph (3) of rule 3 on an application for leave which may be renewed under paragraph (4) of that rule.

53/14 Meaning of “Court”

14 In relation to the hearing by a Judge for an application for leave under rule 3 or of an application for judicial review, any reference in this Order to “the Court” shall, unless the context otherwise requires, be construed as a reference to the Judge.

ORDER 54

APPLICATIONS FOR WRIT OF HABEAS CORPUS

54/1 Application for writ of habeas corpus ad subjiciendum

1 (1) Subject to rule 11, an application for a writ of habeas corpus ad subjiciendum shall be made to a judge in Court, except that —

(a) [blank];

(b) it may be made to a judge otherwise than in court at any time when no judge is sitting in court; and

(c) any application on behalf of a minor must be made in the first instance to a judge otherwise than in court.

(2) An application for such writ may be made ex parte and, subject to paragraph (3) must be supported by an affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint.

(3) Where the person restrained is unable for any reason to make the affidavit required by paragraph (2) the affidavit may be made by some other person on his behalf and that affidavit must state that the person restrained is unable to make the affidavit himself and for what reason.

54/2 Power of Court to whom ex parte application made

2 (1) The Court or judge to whom an application under rule 1 is made ex parte may make an order forthwith for the writ to issue, or may —

(a) where the application is made to a judge otherwise than in court, direct that an originating summons for the writ be issued, or that an application therefore be made to a judge in court;

(b) where the application is made to a judge in court, adjourn the application so that notice thereof may be given;

(c) [blank].

(2) The summons or notice of the motion must be served on the person against whom the issue of the writ is sought and on such other persons as the Court or judge may direct, and, unless the Court or judge otherwise directs, there must be at least eight clear days between the service of the summons or notice and the date named therein for the hearing of the application.

54/3 Copies of affidavits to be supplied

3 Every party to an application under rule 1 must supply to every other party on demand and on payment of the proper charges copies of the affidavits which he proposes to use at the hearing of the application.

54/4 Power to order release of person restrained

4 (1) Without prejudice to rule 2(1), the Court or judge hearing an application for a writ of habeas corpus ad subjiciendum may in its or his discretion order that the person restrained be released, and such order shall be a sufficient warrant to the Commissioner of Prisons, any police officer or other person for the release of the person under restraint.

(2) Where such an application in a criminal cause or matter is heard by a judge and the judge does not order the release of the person restrained, he shall direct that the application be made by originating motion to a judge in Court.

54/5 Directions as to return to writ

5 Where a writ of habeas corpus ad subjiciendum is ordered to issue, the Court or judge by whom the order is made shall give directions as to the Court or judge before whom, and the date on which, the writ is returnable.

54/6 Service of writ and notice

6 (1) Subject to paragraphs (2) and (3), a writ of habeas corpus ad subjiciendum must be served personally on the person to whom it is directed.

(2) If it is not possible to serve such writ personally, or if it is directed to the Commissioner of Prisons or other public official, it must be served by leaving it with a servant or agent of the person to whom the writ is directed at the place where the person restrained is confined or restrained.

(3) If the writ is directed to more than one person, the writ must be served in manner provided by this rule on the person first named in the writ, and copies must be served on each of the other persons in the same manner as the writ.

(4) There must be served with the writ a notice (in Form No. 90 in Appendix A) stating the Court or judge before whom and the date on which the person restrained is to be brought and that in default of obedience proceedings for committal of the party disobeying will be taken.

54/7 Return to the writ

7 (1) The return to a writ of habeas corpus ad subjiciendum must be indorsed on or annexed to the writ and must state all the causes of the detainer of the person restrained.

(2) The return may be amended, or another return substituted therefore, by leave of the Court or judge before whom the writ is returnable.

54/8 Procedure at hearing of writ

8 When a return to a writ of habeas corpus ad subjiciendum is made, the return shall first be read, and motion then made for discharging or remanding the person restrained or amending or quashing the return, and where that person is brought up in accordance with the writ, his counsel shall be heard first, then the counsel for the Crown, and then one counsel for the person restrained in reply.

54/9 Bringing up prisoner to give evidence, etc.

9 (1) [blank]

(2) An application for an order to bring up a prisoner, otherwise than by writ of habeas corpus, to give evidence in any cause or matter, civil or criminal, before any Court, tribunal or justice, must be made on affidavit to a Judge in Chambers.

54/10 Form of writ

10 A writ of habeas corpus must be in Form No. 89, 91 or 92 in Appendix A, whichever is appropriate.”.

Substitution of Order 62

11 (1) Order 62 is repealed and replaced by the following —

“ORDER 62

COSTS

Part 1: Preliminary

62/1 Interpretation

1 (1) Except where it is otherwise expressly provided, or the context otherwise requires, the following provisions of this rule shall apply for the interpretation of this Order.

(2) In this Order "Certificate" includes allocatur —

"contentious business" means business done by an attorney in or for the purpose of proceedings begun before the Court or before an arbitrator appointed under the Arbitration Act 1986, not being non-contentious common form probate business;

"non-contentious business" means any business done by an attorney which is not contentious business;

"party", in relation to a cause or matter, includes a party who is treated as being a party to that cause or matter by virtue of Order 4, rule 10(2);

"patient" means a person who, by reason of mental disorder within the meaning of Part IV of the Mental Health Act 1968, is incapable of managing and administering his property and affairs;

"the standard basis" and "the indemnity basis" have the meaning assigned to them by rule 12(1) and (2) respectively;

"taxed costs" means costs taxed in accordance with this Order;

(3) References to a fund, being a fund out of which costs are to be paid or which is held by a trustee or estate representative, include references to any estate or property, whether real or personal, held for the benefit of any person or class of persons; and references to a fund held by a trustee or estate representative include references to any fund to which he is entitled (whether alone or together with any other person) in that capacity, whether the fund is for the time being in his possession or not.

(4) References to costs shall be construed as including references to fees, charges, disbursements, expenses and remuneration and, in relation to proceedings (including taxation proceedings), also include references to costs of or incidental to those proceedings.

62/2 Application

2 (1) In addition to the civil proceedings to which this Order applies by virtue of Order 1, rule 2(1) and (2), this Order applies to any criminal proceedings in the Court in respect of which costs are awarded.

(2) This Order shall have effect, with such modifications as may be necessary, where by virtue of any Act the costs of any proceedings before an arbitrator or umpire or before a tribunal or other body constituted by or under any Act, not being proceedings in the Court, are taxable in the Court.

(3) [blank]

(4) The costs of and incidental to proceedings in the Supreme Court (including any criminal proceedings to which this Order applies) shall be in the discretion of the Court, and that discretion shall be exercised subject to and in accordance with this Order.

Part II: Entitlement to Costs

62/3 General principles

3 (1) This rule shall have effect subject only to the following provisions of this Order.

(2) No party to any proceedings shall be entitled to recover any of the costs of those proceedings from any other party to those proceedings except under an order of the Court.

(3) If the Court in the exercise of its discretion sees fit to make any order as to the costs of any proceedings, the Court shall order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.

(4) The amount of his costs which any party shall be entitled to recover is the amount allowed after taxation on the standard basis where —

(a) an order is made that the costs of one party to proceedings be paid by another party to those proceedings, or

(b) an order is made for the payment of costs out of any fund, or

(c) no order is required,

unless it appears to the Court to be appropriate to order costs to be taxed on the indemnity basis.

(5) Paragraph (3) does not apply to proceedings under the Matrimonial Causes Act 1974.

(6) Subject to rule 8, a term mentioned in the first column of the table below, when used in an order for costs, shall have the effect indicated in the second column of that table.

Term Effect

"Costs" (a) Where this order is made in interlocutory proceedings, the party in whose favour it is made shall be entitled to his costs in respect of those proceedings whatever the outcome of the cause or matter in which the proceedings arise; and

(b) Where this order is made at the conclusion of a cause or matter, the party in whose favour it is made shall be entitled to have his costs taxed forthwith;

"Costs (Except in proceedings under the

reserved" Matrimonial Causes Act 1974) the party in whose favour an order for costs is made at the conclusion of the cause or matter in which the proceedings arise shall be entitled to his costs of the proceedings in respect of which this order is made unless the Court orders otherwise;

"Costs in This order has the same effect as an

any event order for "costs" made in interlocutory proceedings;

"Costs here The party in whose favour this order is

and below" made shall be entitled not only to his costs in respect of the proceedings in which it is made but also to his costs of the same proceedings in any lower court;

"Costs in The party in whose favour an order for

the cause" costs is made at the conclusion of the

or cause or matter in which the proceedings

"costs in arise shall be entitled to his costs of the

application" proceedings in respect of which such an order is made;

"Plaintiff's costs The plaintiff or defendant, as the case

in the cause" may be, shall be entitled to his costs of

or the proceedings in respect of which

"Defendant's such an order is made if judgment is

costs in given in his favour in the cause or matter

the cause" in which the proceedings arise, but he

shall not be liable to pay the costs of any other party in respect of those proceedings if judgment is given in favour of any other party or parties in the cause or matter in question;

"Costs thrown Where proceedings or any part of them

away" have been ineffective or have been subsequently set aside, the party in whose favour this order is made shall be entitled to his costs of those proceedings or that part of the proceedings in respect of which it is made.

62/4 Cases where no order for costs is to be made

4 (1) [blank]

(2) No order shall be made for costs to be paid by or to any person (other than the Parliamentary Registrar) who is respondent to an appeal to the Court from a decision of the Parliamentary Registrar under section 23 of the Parliamentary Elections Act 1978, unless that person appears in support of the decision of the Parliamentary Registrar.

(3) In a probate action where a defendant has given notice with his defence to the party setting up the will that he merely insists upon the will being proved in solemn form of law and only intends to cross-examine the witnesses produced in support of the will, no order for costs shall be made against him unless it appears to the Court that there was no reasonable ground for opposing the will.

62/5 Cases where order for costs deemed to have been made

5 (1) In each of the circumstances mentioned in this rule an order for costs shall be deemed to have been made to the effect respectively described and, for the purposes of section 9 of the Interest and Credit Charges (Regulation) Act 1975, the order shall be deemed to have been entered up on the date on which the event which gave rise to the entitlement to costs occurred.

(2) Where a summons is taken out to set aside any proceedings on the ground of irregularity and the summons is dismissed, the party who issued the summons shall pay the costs of every other party.

(3) Where a party by notice in writing and without leave discontinues an action or counterclaim or withdraws any particular claim made by him as against any other party, that other party shall be entitled to his costs of the action or counterclaim or his costs occasioned by the claim withdrawn, as the case may be, incurred to the time of receipt of the notice of discontinuance or withdrawal.

(4) Where a plaintiff by notice in writing in accordance with Order 22, rule 3(1), accepts money paid into court in satisfaction of the cause of action or of all the causes of action in respect of which he claims, or accepts money paid in satisfaction of one or more specified causes of action and gives notice that he abandons the others, he shall be entitled to his costs of the action incurred up to the time of giving notice of acceptance.

(5) Where in an action for libel or slander against several defendants sued jointly a plaintiff, by notice in writing in accordance with Order 22, rule 3(1), accepts money paid into court by one of the defendants he shall be entitled to his costs of the action against that defendant incurred up to the time of giving notice of acceptance.

(6) A defendant who has counterclaimed shall be entitled to the costs of the counterclaim if —

(a) he pays money into court and his notice of payment in states that he has taken into account and satisfied the cause or causes of action in respect of which he counterclaims, and

(b) the plaintiff accepts the money paid in,

but the costs of such counterclaim shall be limited to those incurred up to the time when the defendant receives notice of acceptance by the plaintiff of the money paid into court.

62/6 Cases where costs do not follow the event

6 (1) The provisions of this rule shall apply in the circumstances mentioned in this rule unless the Court orders otherwise.

(2) Where a person is or has been a party to any proceedings in the capacity of trustee, estate representative or mortgagee, he shall be entitled to the costs of those proceedings, in so far as they are not recovered from or paid by any other person, out of the fund held by him in that capacity or out of the mortgaged property, as the case may be, and the Court may order otherwise only on the ground that he has acted unreasonably or, in the case of a trustee or estate representative, has in substance acted for his own benefit rather than for the benefit of the fund.

(3) Where any person claiming to be a creditor seeks to establish any claim to a debt under any judgment or order in accordance with Order 44, he shall, if his claim succeeds, be entitled to his costs incurred in establishing it: and, if his claim or any part of it fails, he may be ordered to pay the costs of any person incurred in opposing it.

(4) Where a claimant (other than a person claiming to be a creditor) has established a claim to be entitled under a judgment or order in accordance with Order 44 and has been served with notice of the judgment or order pursuant to rule 2 of that Order, he shall, if he acknowledges service of the notice, be entitled as part of his costs of action (if allowed) to costs incurred in establishing his claim; and where such a claimant fails to establish his claim or any part of it he may be ordered to pay the costs of any person incurred in opposing it.

(5) The costs of any amendment made without leave in the writ or any pleadings shall be borne by the party making the amendment.

(6) The costs of any application to extend the time fixed by these rules or by any direction or order thereunder shall be borne by the party making the application.

(7) If a party on whom a notice to admit facts is served under Order 27, rule 2, refuses or neglects to admit the facts within fourteen days after the service on him of the notice or such longer time as may be allowed by the Court, the costs of proving the facts and the costs occasioned by and thrown away as a result of his failure to admit the facts shall be borne by him.

(8) If a party —

(a) on whom a list of documents is served in pursuance of Order 24, or

(b) on whom a notice to admit documents is served under Order 27, rule 5,

gives notice of non-admission of any of the documents in accordance with Order 27, rule 4(2) or 5(2), as the case may be, the costs of proving that document and the costs occasioned by and thrown away as a result of his non-admission shall be borne by him.