Statutory Instrument 1996 No. 3219 (L.18)

The Rules of the Supreme Court (Amendment) 1996

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© Crown Copyright 1996

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1996 No. 3219 (L.18)

SUPREME COURT OF ENGLAND AND WALES

The Rules of the Supreme Court (Amendment) 1996

We, the Supreme Court Rule Committee, having power under section 85 of the Supreme Court Act 1981^[1] to make rules of court under section 60 of that Act and under section 84 of that Act for the purpose of regulating and prescribing the practice and procedure to be followed in the High Court and the civil division of the Court of Appeal, hereby exercise those powers as follows—

Citation, commencement and interpretation
    1.—(1)  These Rules may be cited as the Rules of the Supreme Court (Amendment) 1996 and shall come into force on 31st January 1997.

    (2)  In these Rules, an Order referred to by number means the Order so numbered in the Rules of the Supreme Court 1965^[2] and a reference to Appendix A is a reference to Appendix A to those Rules.

Arbitration Act 1996
    2.    The Arrangement of Orders at the beginning of the Rules of the Supreme Court 1965 shall be amended, by substituting for the title to Order 73, the following "Applications relating to Arbitration".

    3.    Order 11, rule 9(1) and (4)^[3] shall be amended by omitting the words "Subject to Order 73, rule 7,".

    4.    Order 59, rule 1A(7)(a)^[4] shall be amended by inserting, after "1979", the words "or under section 69(7) of the Arbitration Act 1996^[5]" and rule 1A(7)(b)(iii) shall be amended by inserting, after "section 1(2)", the words "or of section 69(7) of the said Act of 1996".

    5.    For Order 73 there shall be substituted the following—

"ORDER 73
APPLICATIONS RELATING TO ARBITRATION

Introduction
This Order is divided into three Parts. Part I is concerned with applications to the Court relating to arbitration to which Part I of the Arbitration Act 1996 applies. Part II restates with some necessary adjustments provisions of the existing Order which are to be preserved. Part III is concerned with applications for enforcement under the earlier Arbitration Acts and under the 1996 Act.




The application of the Order to particular proceedings may be determined by reference to the following table. Column 1 shows the date on which arbitral proceedings (if any) were commenced. Column 2 shows the date of the application to the Court. Column 3 shows the appropriate Part of the Order for the application.

Column 1	Column 2	Column 3
Date of arbitral proceedings	Date of application to the Court	Appropriate Part of Order 73
not commenced	before 31st January 1997	Part II
before 31st January 1997	before 31st January 1997	Part II
not commenced	on or after 31st January 1997	Part II
before 31st January 1997	on or after 31st January 1997	Part II
on or after 31st January 1997	on or after 31st January 1997	Part I
on or after 31st January 1997	before 31st January 1997	Part II






The other provisions of these rules apply to applications relating to arbitration subject to the provisions of this Order and only to the extent that they do not conflict with it.




See, for example, the following provisions of these rules for the following matters—
  Order 10—service of originating process

  Order 12—acknowledgement of service

  Order 29—injunctions

  Order 32—proceedings in chambers

  Order 41—affidavits

  Order 65—service of documents.



PART I

The overriding objective
    1.    This Part of this Order is founded on the general principles in section 1 of the Arbitration Act and shall be construed accordingly.


Meaning of arbitration application
    2.—(1)  Subject to paragraph (2), "arbitration application" means the following—
(a) an application to the Court under the Arbitration Act;

(b) proceedings to determine—
(i) whether there is a valid arbitration agreement;

(ii) whether an arbitration tribunal is properly constituted;

(iii) what matters have been submitted to arbitration in accordance with an arbitration agreement;

(c) proceedings to declare that an award made by an arbitral tribunal is not binding on a party;

(d) any other application affecting arbitration proceedings (whether instituted or anticipated) or to construe or affecting an arbitration agreement,

and includes the originating process by which an arbitration application is begun.

    (2)  In this Part of this Order, an arbitration application does not include proceedings to enforce an award—
(a) to which Part III of this Order applies; or

(b) by an action on the award.




Interpretation
    3.    In this Part—
  "applicant" means the party making an arbitration application and references to respondent shall be construed accordingly;

  "the Arbitration Act" means the Arbitration Act 1996 and any expressions used in this Order and in Part I of the Arbitration Act have the same meanings in this Order as they have in that Part of the Arbitration Act.



Form and content of arbitration application
    4.—(1)  An arbitration application must be in Form No. 8A in Appendix A.

    (2)  Every arbitration application must—
(a) include a concise statement of
(i) the remedy or relief claimed, and

(ii) (where appropriate) the questions on which the applicant seeks the determination or direction of the Court;

(b) give details of any arbitration award that is challenged by the applicant, showing the grounds for any such challenge;

(c) where the applicant claims an order for costs, identify the respondent against whom the claim is made,

(d) (where appropriate) specify the section of the Arbitration Act under which the application is brought; and

(e) show that any statutory requirements have been satisfied including those set out, by way of example, in the Table Below.

Application made	Statutory requirements
section 9 (stay of legal proceedings)	see section 9(3)
section 12 (extensions of time for beginning	see section 12(2) arbitral proceedings)
section 18 (failure of appointment procedure)	see section 18(2)
section 21 (umpires)	see section 21(5)
section 24 (removal of arbitrators)	see section 24(2)
section 32 (preliminary point of jurisdiction)	see section 32(3)
section 42 (enforcement of peremptory orders)	see section 42(3)
section 44 (powers in support of arbitral	see section 44(4), (5) proceedings)
section 45 (preliminary point of law)	see section 45(3)
section 50 (extension of time for making award)	see section 50(2)
section 56 (power to withhold award)	see section 56(4)
sections 67, 68 (challenging the award)	see section 70(2), (3)
section 69 (appeal on point of law)	see sections 69(2), (4), 70(2), (3)
section 77 (service of documents)	see section 77(3)




    (3)  The arbitration application must also state
(a) whether it is made ex parte or on notice and, if made on notice, must give the names and addresses of the persons to whom notice is to be given, stating their role in the arbitration and whether they are made respondents to the application;

(b) whether (having regard to rule 15) the application will be heard in open Court or in chambers; and

(c) the date and time when the application will be heard or that such date has not yet been fixed.


    (4)  Every arbitration application which is used as an originating process shall be indorsed with the applicant's address for service in accordance with Order 6, rule 5.



Issue of application
    5.—(1)  This rule is to be read with the provisions of the High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996^[6] which allocates proceedings under the Arbitration Act to the High Court and the county courts and specifies proceedings which may be commenced or taken only in the High Court or in a county court.

    (2)  This rule does not apply to applications under section 9 of the Arbitration Act to stay legal proceedings.

    (3)  Any other arbitration application may be made—
(a) in the Royal Courts of Justice, in which case it shall be issued out of the Admiralty and Commercial Registry;

(b) in a district registry in which there is a mercantile list, in which case it shall be entered into that list.


    (4)  Except where an arbitration application is issued out of the Admiralty and Commercial Registry, the Judge in charge of the list shall
(a) as soon as practicable after the issue of the application, and

(b) in consultation with the Judge in charge of the commercial list,

consider whether the application should be transferred to the Commercial Court or to any another list.

    (5)  Where an arbitration application is issued out of the Admiralty and Commercial Registry, the Judge in charge of the commercial list may at any time after the issue of the application transfer the application to another list, court or Division of the High Court, to which he has power to transfer proceedings.

    (6)  In considering whether to transfer an application, the Judges referred to in paragraphs (4) and (5) shall have regard to the criteria specified in article 4(4) of the High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996^[7] and the application shall be transferred if those Judges so decide.

    (7)  In this rule "Judge in charge of the list" means—
(a) a Commercial Judge, where the arbitration application is issued out of the Admiralty and Commercial Registry;

(b) a Circuit mercantile Judge, where the arbitration application is entered in a mercantile list;

(c) a Judge of the business list in the Central London County Court, where the arbitration application is commenced in the business list established at the Central London County Court by Order 48C of the County Court Rules 1981^[8];

but nothing in this rule shall be construed as preventing the powers of a Commercial Judge from being exercised by any judge of the High Court.



Stay of legal proceedings
    6.—(1)  An application under section 9 of the Arbitration Act to stay legal proceedings shall be served—
(a) in accordance with Order 65, rule 5, on the party bringing the relevant legal proceedings and on any other party to those proceedings who has given an address for service; and

(b) on any party to those legal proceedings who has not given an address for service, by sending to him (whether or not he is within the jurisdiction) at his last known address or at a place where it is likely to come to his attention, a copy of the application for his information.


    (2)  Where a question arises as to whether an arbitration agreement has been concluded or as to whether the dispute which is the subject-matter of the proceedings falls within the terms of such an agreement, the Court may determine that question or give directions for its determination, in which case it may order the proceedings to be stayed pending the determination of that question.



Service of arbitration application
    7.—(1)  Subject to paragraphs (2) and (4) below and to rules 6(1) and 8, an arbitration application shall be served in accordance with Order 10.

    (2)  Where the Court is satisfied on an ex parte application that
(a) arbitral proceedings are taking place, or an arbitration award has been made, within the jurisdiction; and

(b) an arbitration application is being made in connection with those arbitral proceedings or being brought to challenge the award or to appeal on a question of law arising out of the award; and

(c) the respondent to the arbitration application (not being an individual residing or carrying on business within the jurisdiction or a body corporate having a registered office or a place of business within the jurisdiction)
(i) is or was represented in the arbitral proceedings by a solicitor or other agent within the jurisdiction who was authorised to receive service of any notice or other document served for the purposes of those proceedings; and

(ii) has not (at the time when the arbitration application is made) determined the authority of that solicitor or agent,

the Court may authorise service of the arbitration application to be effected on the solicitor or agent instead of the respondent.

    (3)  An order made under paragraph (2) must limit a time within which the respondent must acknowledge service and a copy of the order and of the arbitration application must be sent by post to the respondent at his address out of the jurisdiction.

    (4)  Where an arbitration application has been issued, any subsequent arbitration application made by the respondent and arising out of the same arbitration or arbitration agreement may be served on the applicant in accordance with Order 65, rule 5 (ordinary service: how effected) and similarly any subsequent arbitration application by any party may be served at the address for service given in the first arbitration application or in the acknowledgement of service.

    (5)  For the purposes of service, an arbitration application is valid in the first instance
(a) where service is to be effected out of the jurisdiction, for such period as the Court may fix;

(b) in any other case, for one month,

beginning with the date of its issue and Order 6, rule 8 shall apply with the substitution, in paragraphs (2) and (2A), of "2 months" for "4 months" and "6 months" for "12 months".



Service out of the jurisdiction
    8.—(1)  Service out of the jurisdiction of an arbitration application is permissible with the leave of the Court if the arbitration application falls into one of the categories mentioned in the following table and satisfies the conditions specified.

Nature of application	Conditions to be satisfied
1.    The applicant seeks to challenge, or to appeal to the Court on a question of law arising out of, an arbitration award.	Award must have been made in England and Wales. Section 53 of the Arbitration Act shall apply for determining the place where award is treated as made.
2.    The application is for an order under section 44 of the Arbitration Act (Court powers exercisable in support of arbitral proceedings). Where the application is for interim relief in support of arbitral proceedings which are taking (or will take) place outside England and Wales, the Court may give leave for service out of the jurisdiction notwithstanding that no other relief is sought.	None.
3.    The applicant seeks some other remedy or relief, or requires a question to be determined by the Court, affecting an arbitration (whether pending or anticipated), an arbitration agreement or an arbitration award.	The seat of the arbitration is or will be in England and Wales or the conditions in section 2(4) of the Arbitration Act are satisfied.



    (2)  An application for the grant of leave under this rule must be supported by an affidavit
(a) stating the grounds on which the application is made; and

(b) showing in what place or country the person to be served is, or probably may be found,

and no such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this rule.

    (3)  Order 11, rules 5 to 8 shall apply to the service of an arbitration application under this rule as they apply to the service of a writ.

    (4)  Service out of the jurisdiction of any order made on an arbitration application is permissible with the leave of the Court.



Affidavit in support of arbitration application
    9.—(1)  The applicant shall file an affidavit in support of the arbitration application which sets out the evidence on which he intends to rely and a copy of every affidavit so filed must be served with the arbitration application.

    (2)  Where an arbitration application is made with the written agreement of all the other parties to the arbitral proceedings or with the permission of the arbitral tribunal, the affidavit in support must
(a) give details of the agreement or, as the case may be, permission; and

(b) exhibit copies of any document which evidences that agreement or permission.




Requirements as to notice
    10.—(1)  Where the Arbitration Act requires that an application to the Court is to be made upon notice to other parties notice shall be given by making those parties respondents to the application and serving on them the arbitration application and any affidavit in support.

    (2)  Where an arbitration application is made under section 24, 28 or 56 of the Arbitration Act, the arbitrators or, in the case of an application under section 24, the arbitrator concerned shall be made respondents to the application and notice shall be given by serving on them the arbitration application and any affidavit in support.

    (3)  In cases where paragraph (2) does not apply, an applicant shall be taken as having complied with any requirement to give notice to the arbitrator if he sends a copy of the arbitration application to the arbitrator for his information at his last known address with a copy of any affidavit in support.

    (4)  This rule does not apply to applications under section 9 of the Arbitration Act to stay legal proceedings.



Acknowledgement of service by respondent
    11.—(1)  Service of an arbitration application may be acknowledged by completing an acknowledgement of service in Form No. 15A in Appendix A in accordance with Order 12 (as that Order applies by virtue of rule 9 of that Order).

    (2)  A respondent who
(a) fails to acknowledge service within the time limited for so doing; or

(b) having indicated on his acknowledgement of service that he does not intend to contest the arbitration application, then wishes to do so,

shall not be entitled to contest the application without the leave of the Court.

    (3)  The Court will not give notice of the date on which an arbitration application will be heard to a respondent who has failed to acknowledge service.

    (4)  The failure of a respondent to give notice of intention to contest the arbitration application or to acknowledge service shall not affect the applicant's duty to satisfy the Court that the order applied for should be made.

    (5)  This rule does not apply to—
(a) applications under section 9 of the Arbitration Act to stay legal proceedings; or

(b) subsequent arbitration applications.




Acknowledgement of service etc. by arbitrator
    12.—(1)  An arbitrator who is sent a copy of an arbitration application for his information may make
(a) a request ex parte in writing to be made a respondent; or

(b) representations to the Court under this rule,

and, where an arbitrator is ordered to be made a respondent, he shall acknowledge service within 14 days of the making of that order.

    (2)  An arbitrator who wishes to make representations to the Court under this rule may file an affidavit or make representations in writing to the Court.

    (3)  The arbitrator shall as soon as is practicable send a copy of any document filed or made under paragraph (2) to all the parties to the arbitration application.

    (4)  Nothing in this rule shall require the Court to admit a document filed or made under paragraph (2) and the weight to be given to any such document shall be a matter for the Court.



Automatic directions
    13.—(1)  Unless the Court otherwise directs, the following directions shall take effect automatically.

    (2)  A respondent who wishes to put evidence before the Court in response to any affidavit filed in support of an arbitration application shall serve his affidavit on the applicant before the expiration of 21 days after the time limited for acknowledging service or, in a case where a respondent is not required to file an acknowledgement of service, within 21 days after service of the arbitration application.

    (3)  An applicant who wishes to put evidence before the Court in response to an affidavit lodged under paragraph (2) shall serve his affidavit on the respondent within 7 days after service of the respondent's affidavit.

    (4)  Where a date has not been fixed for the hearing of the arbitration application, the applicant shall, and the respondent may, not later than 14 days after the expiration of the time limit specified in paragraph (2), apply to the Court for such a date to be fixed.

    (5)  Agreed indexed and paginated bundles of all the evidence and other documents to be used at the hearing shall be prepared by the applicant (with the co-operation of the respondent).

    (6)  Not later than 5 clear days before the hearing date estimates for the length of the hearing shall be lodged with the Court together with a complete set of the documents to be used.

    (7)  Not later than 2 days before the hearing date the applicant shall lodge with the Court—
(a) a chronology of the relevant events cross-referenced to the bundle of documents;

(b) (where necessary) a list of the persons involved;

(c) a skeleton argument which lists succinctly
(i) the issues which arise for decision,

(ii) the grounds of relief (or opposing relief) to be relied upon,

(iii) the submissions of fact to be made with the references to the evidence, and

(iv) the submissions of law with references to the relevant authorities,


  and shall send a copy to the respondent.

    (8)  Not later than the day before the hearing date the respondent shall lodge with the Court a skeleton argument which lists succinctly
(a) the issues which arise for decision,

(b) the grounds of relief (or opposing relief) to be relied upon,

(c) the submissions of fact to be made with the references to the evidence, and

(d) the submissions of law with references to the relevant authorities,

and shall send a copy to the applicant.



Directions by the Court
    14.—(1)  The Court may give such directions as to the conduct of the arbitration application as it thinks best adapted to secure the just, expeditious and economical disposal thereof.

    (2)  Where the Court considers that there is or may be a dispute as to fact and that the just, expeditious and economical disposal of the application can best be secured by hearing the application on oral evidence or mainly on oral evidence, it may, if it thinks fit, order that no further evidence shall be filed and that the application shall be heard on oral evidence or partly on oral evidence and partly on affidavit evidence, with or without cross-examination of any of the deponents, as it may direct.

    (3)  The Court may give directions as to the filing of evidence and as to the attendance of deponents for cross-examination and any directions which it could give in proceedings begun by writ.

    (4)  If the applicant makes default in complying with these rules or with any order or direction of the Court as to the conduct of the application, or if the Court is satisfied that the applicant is not prosecuting the application with due despatch, the Court may order the application to be dismissed or may make such other order as may be just.

    (5)  If the respondent fails to comply with these rules or with any order or direction given by the Court in relation to the evidence to be relied on, or the submissions to be made by that respondent, the Court may, if it thinks fit, hear and determine the application without having regard to that evidence or those submissions.



Hearing of applications: open Court or in chambers
    15.—(1)  The Court may order that any arbitration application be heard either in open court or in chambers.

    (2)  Subject to any order made under paragraph (1) and to paragraph (3), all arbitration applications shall be heard in chambers.

    (3)  Subject to any order made under paragraph (1), the determination of a preliminary point of law under section 45 of the Arbitration Act or an appeal under section 69 on a question of law arising out of an award shall be heard in open court.

    (4)  Paragraph (3) shall not apply to
(a) the preliminary question whether the Court is satisfied of the matters set out in section 45(2)(b); or

(b) an application for leave to appeal under section 69(2)(b).




Securing the attendance of witnesses
    16.—(1)  A party to arbitral proceedings being conducted in England and Wales who wishes to rely on section 43 of the Arbitration Act to secure the attendance of a witness may apply for a writ of subpoena ad testificandum or of subpoena duces tecum to the Admiralty and Commercial Registry or, if the attendance of the witness is required within the district of a district registry, at that registry at the option of the party.

    (2)  A writ of subpoena shall not be issued until the applicant lodges an affidavit which shows that the application is made with the permission of the tribunal or the agreement of the other parties.



Security for costs
    17.    Subject to section 70(6) of the Arbitration Act, the Court may order any applicant (including an applicant who has been granted leave to appeal) to provide security for costs of any arbitration application.


Powers exercisable in support of arbitral proceedings
    18.—(1)  Where the case is one of urgency, an application for an order under section 44 of the Arbitration Act (Court powers exercisable in support of arbitral proceedings) may be made ex parte on affidavit (before the issue of an arbitration application) and the affidavit shall (in addition to dealing with the matters required to be dealt with by rule 9) state the reasons
(a) why the application is made ex parte; and

(b) (where the application is made without the permission of the arbitral tribunal or the agreement of the other parties to the arbitral proceedings) why it was not practicable to obtain that permission or agreement, and

(c) why the deponent believes that the condition in section 44(5) is satisfied.


    (2)  Where the case is not one of urgency, an application for an order under section 44 of the Arbitration Act shall be made on notice and the affidavit in support shall (in addition to dealing with the matters required to be dealt with by rule 9 and paragraph (1)(c) above) state that the application is made with the permission of the tribunal or the written agreement of the other parties to the arbitral proceedings.

    (3)  Where an application for an order under section 44 of the Arbitration Act is made before the issue of an arbitration application, any order made by the Court may be granted on terms providing for the issue of an application and such other terms, if any, as the Court thinks fit.



Applications under sections 32 and 45 of the Arbitration Act
    19.—(1)  This rule applies to the following arbitration applications:—
(a) applications for the determination of a question as to the substantive jurisdiction of the arbitral tribunal under section 32 of the Arbitration Act; and

(b) applications for the determination of a preliminary point of law under section 45 of the Arbitration Act.


    (2)  Where an application is made without the agreement in writing of all the other parties to the arbitral proceedings but with the permission of the arbitral tribunal, the affidavits filed by the parties shall set out any evidence relied on by the parties in support of their contention that the Court should, or should not, consider the application.

    (3)  As soon as practicable after the affidavits are lodged, the Court shall decide whether or not it should consider the application and, unless the Court otherwise directs, shall so decide without a hearing.



Applications for leave to appeal
    20.—(1)  Where the applicant seeks leave to appeal to the Court on a question of law arising out of an arbitration award, the arbitration application shall identify the question of law and state the grounds on which the applicant alleges that leave should be granted.

    (2)  The affidavit in support of the application shall set out any evidence relied on by the applicant for the purpose of satisfying the Court of the matters mentioned in section 69(3) of the Arbitration Act and for satisfying the Court that leave should be granted.

    (3)  The affidavit lodged by the respondent to the application shall
(a) state the grounds on which the respondent opposes the grant of leave;

(b) set out any evidence relied on by him relating to the matters mentioned in section 69(3) of the Arbitration Act, and

(c) specify whether the respondent wishes to contend that the award should be upheld for reasons not expressed (or not fully expressed) in the award and, if so, state those reasons.


    (4)  As soon as practicable after the lodging of the affidavits, the Court shall determine the application for leave in accordance with section 69(5) of the Arbitration Act.

    (5)  Where leave is granted, a date shall be fixed for the hearing of the appeal.



Extension of time: applications under section 12
    21.    An application for an order under section 12 of the Arbitration Act may include as an alternative an application for a declaration that such an order is not needed.


Time limits for challenges to or appeals from awards
    22.—(1)  An applicant shall not be taken as having complied with the time limit of 28 days referred to in section 70(3) of the Arbitration Act unless the arbitration application has been issued, and all the affidavits in support have been sworn and filed, by the expiry of that time limit.

    (2)  An applicant who wishes
(a) to challenge an award under section 67 or 68 of the Arbitration Act; or

(b) to appeal under section 69 on a question of law arising out of an award,

may, where the time limit of 28 days has not yet expired, apply ex parte on affidavits for an order extending that time limit.

    (3)  In any case where an applicant seeks to challenge an award under section 67 or 68 of the Arbitration Act or to appeal under section 69 after the time limit of 28 days has already expired, the following provisions shall apply:
(a) the applicant must state in his arbitration application the grounds why an order extending time should be made and his affidavit in support shall set out the evidence on which he relies;

(b) a respondent who wishes to oppose the making of an order extending time shall file an affidavit within 7 days after service of the applicant's affidavit, and

(c) the Court shall decide whether or not to extend time without a hearing unless it appears to the Court that a hearing is required,

and, where the Court makes an order extending the time limit, the respondent shall file his affidavit in response to the arbitration application 21 days after the making of the order.



PART II

Application of this Part
    23.—(1)  This Part of this Order applies to any application to the Court to which the old law applies and, in this rule, "the old law" means the enactments specified in section 107 of the Arbitration Act 1996^[9] as they stood before their amendment or repeal by that Act.

    (2)  This Part of this Order does not apply to proceedings to enforce an award—
(a) to which Part III of this Order applies; or

(b) by an action on the award.


    (3)  Reference should be made to the other provisions of these rules (except Parts I and III of this Order) for the procedure for any application not expressly provided for in this Part.



Matters for a judge in court^[10]
    24.—(1)  Every application to the Court—
(a) to remit an award under section 22 of the Arbitration Act 1950^[11]; or

(b) to remove an arbitrator or umpire under section 23(1) of that Act; or

(c) to set aside an award under section 23(2) of that Act, or

(d) to determine, under section 2(1) of the Arbitration Act 1979^[12], any question of law arising in the course of a reference,

must be made by originating motion to a single judge in court.

    (2)  Any appeal to the High Court under section 1(2) of the Arbitration Act 1979 shall be made by originating motion to a single judge in court.

    (3)  An application for a declaration that an award made by an arbitrator or umpire is not binding on a party to the award on the ground that it was made without jurisdiction may be made by originating motion to a single judge in court, but the foregoing provision shall not be taken as affecting the judge's power to refuse to make such a declaration in proceedings begun by motion.



Matters for judge in chambers or master^[13]
    25.—(1)  Subject to the foregoing provisions of this Order and the provisions of this rule, the jurisdiction of the High Court or a judge thereof under the Arbitration Act 1950 and the jurisdiction of the High Court under the Arbitration Act 1975^[14] and the Arbitration Act 1979 may be exercised by a judge in chambers, a master or the Admiralty registrar.

    (2)  Any application
(a) for leave to appeal under section 1(2) of the Arbitration Act 1979, or

(b) under section 1(5) of that Act (including any application for leave), or

(c) under section 5 of that Act,

shall be made to a judge in chambers.

    (3)  Any application to which this rule applies shall, where an action is pending, be made by sumons in the action, and in any other case by an originating summons which shall be in Form No. 10 in Appendix A.

    (4)  Where an application is made under section 1(5) of the Arbitration Act 1979 (including any application for leave) the summons must be served on the arbitrator or umpire and on any other party to the reference.



Applications in district registries^[15]
    26.—(1)  An application under section 12(4) of the Arbitration Act 1950 for an order that a writ of subpoena ad testificandum or of subpoena duces tecum shall issue to compel the attendance before an arbitrator or umpire of a witness may, if the attendance of the witness is required within the district of a district registry, be made at that registry, instead of at the Admiralty and Commercial Registry, at the option of the applicant.



Time limit and other special provisions as to appeals and applications under the Arbitration Acts^[16]
    27.—(1)  An application to the Court—
(a) to remit an award under section 22 of the Arbitration Act 1950; or

(b) to set aside an award under section 23(2) of that Act or otherwise, or

(c) to direct an arbitrator or umpire to state the reasons for an award under section 1(5) of the Arbitration Act 1979,

must be made, and the summons or notice must be served, within 21 days after the award has been made and published to the parties.

    (2)  In the case of an appeal to the Court under section 1(2) of the Arbitration Act 1979, the summons for leave to appeal, where leave is required, and the notice of originating motion must be served and the appeal entered, within 21 days after the award has been made and published to the parties.
Provided that, where reasons material to the appeal are given on a date subsequent to the publication of the award, the period of 21 days shall run from the date on which the reasons are given.

    (3)  An application, under section 2(1) of the Arbitration Act 1979, to determine any question of law arising in the course of a reference, must be made, and notice thereof served, within 14 days after the arbitrator or umpire has consented to the application being made, or the other parties have so consented.

    (4)  For the purpose of paragraph (3) the consent must be given in writing.

    (5)  In the case of every appeal or application to which this rule applies, the notice of originating motion, the originating summons or the summons, as the case may be, must state the grounds of the appeal or application and, where the appeal or application is founded on evidence by affidavit, or is made with the consent of the arbitrator or umpire or of the other parties, a copy of every affidavit intended to be used, or, as the case may be, of every consent given in writing, must be served with that notice.

    (6)  Without prejudice to paragraph (5), in an appeal under section 1(2) of the Arbitration Act 1979 the statement of the grounds of the appeal shall specify the relevant parts of the award and reasons, or the relevant parts thereof, shall be lodged with the court and served with the notice of originating motion.

    (7)  Without prejudice to paragraph (5), in an application for leave to appeal under section 1(2) of the Arbitration Act 1979, any affidavit verifying the facts in support of a contention that the question of law concerns a term of a contract or an event which is not a one-off term or event must be lodged with the court and served with the notice of originating motion.

    (8)  Any affidavit in reply to an affidavit under paragraph (7) shall be lodged with the court and served on the applicant not less than two clear days before the hearing of the application.

    (9)  A respondent to an application for leave to appeal under section 1(2) of the Arbitration Act 1979 who desires to contend that the award should be upheld on grounds not expressed or fully expressed in the award and reasons shall not less than two clear days before the hearing of the application lodge with the court and serve on the applicant a notice specifying the grounds of his contention.



Applications and appeals to be heard by Commercial Judges^[17]
    28.—(1)  Any matter which is required, by rule 24 or 25, to be heard by a judge, shall be heard by a Commercial Judge, unless any such judge otherwise directs.

    (2)  Nothing in the foregoing paragraph shall be construed as preventing the powers of a Commercial Judge from being exercised by any judge of the High Court.



Service out of the jurisdiction of summons, notice, etc.^[18]
    29.—(1)  Subject to paragraph (2), service out of the jurisdiction of—
(a) any originating summons or notice of originating motion under the Arbitration Act 1950 or the Arbitration Act 1979, or

(b) any order made on such a summons or motion,

is permissible with the leave of the Court provided that the arbitration to which the summons, motion or order relates is governed by English law or has been, is being or is to be held within the jurisdiction.

    (2)  Service out of the jurisdiction of an originating summons for leave to enforce an award is permissible with the leave of the Court whether or not the arbitration is governed by English law.

    (3)  An application for the grant of leave under this rule must be supported by an affidavit stating the grounds on which the application is made and showing in what place or country the person to be served is, or probably may be found; and no such leave shall be granted unless it shall be made to appear to the Court that the case is a proper one for service out of the jurisdiction under this rule.

    (4)  Order 11, rules 5 to 8, shall apply in relation to any such summons, notice or order as is referred to in paragraph (1) as they apply in relation to a writ.



PART III

Application of this Part
    30.    This Part of this Order applies to all enforcement proceedings (other than by an action on the award) regardless of when they are commenced and when the arbitral proceedings took place.


Enforcement of awards^[19]
    31.—(1)  This rule applies to applications to enforce awards which are brought in the High Court^[20] and such an application may be made in the Royal Courts of Justice or in any district registry.

    (2)  An application for leave under—
(a) section 66 of the Arbitration Act 1996;

(b) section 101 of the Arbitration Act 1996;

(c) section 26 of the Arbitration Act 1950^[21]; or

(d) section 3(1)(a) of the Arbitration Act 1975;

to enforce an award in the same manner as a judgment or order may be made ex parte in Form No. 8A in Appendix A.

    (3)  The Court hearing an application under paragraph (2) may direct that the application is to be served on such parties to the arbitration as it may specify and service of the application out of the jurisdiction is permissible with the leave of the Court irrespective of where the award is, or is treated as, made.

    (4)  Where a direction is given under paragraph (3), rules 11 and 13 to 17 shall apply with the necessary modifications as they apply to applications under Part I of this Order.

    (5)  Where the applicant applies to enforce an agreed award within the meaning of section 51(2) of the Arbitration Act 1996, the application must state that the award is an agreed award and any order made by the Court shall also contain such a statement.

    (6)  An application for leave must be supported by affidavit—
(a) exhibiting
(i) where the application is made under section 66 of the Arbitration Act 1996 or under section 26 of the Arbitration Act 1950, the arbitration agreement and the original award or, in either case, a copy thereof;

(ii) where the application is under section 101 of the Arbitration Act 1996, the documents required to be produced by section 102 of that Act;

(iii) where the application is under section 3(1)(a) of the Arbitration Act 1975, the documents required to be produced by section 4 of that Act;

(b) stating the name and the usual or last known place of residence or business of the applicant and of the person against whom it is sought to enforce the award respectively,

(c) stating as the case may require, either that the award has not been complied with or the extent to which it has not been complied with at the date of the application.


    (7)  An order giving leave must be drawn up by or on behalf of the applicant and must be served on the respondent by delivering a copy to him personally or by sending a copy to him at his usual or last known place of residence or business or in such other manner as the Court may direct.

    (8)  Service of the order out of the jurisdiction is permissible without leave, and Order 11, rules 5 to 8, shall apply in relation to such an order as they apply in relation to a writ.

    (9)  Within 14 days after service of the order or, if the order is to be served out of the jurisdiction, within such other period as the Court may fix, the respondent may apply to set aside the order and the award shall not be enforced until after the expiration of that period or, if the respondent applies within that period to set aside the order, until after the application is finally disposed of.

    (10)  The copy of the order served on the respondent shall state the effect of paragraph (9).

    (11)  In relation to a body corporate this rule shall have effect as if for any reference to the place of residence or business of the applicant or the respondent there were substituted a reference to the registered or principal address of the body corporate.
Nothing in this rule shall affect any enactment which provides for the manner in which a document may be served on a body corporate.



Interest on awards
    32.—(1)  Where an applicant seeks to enforce an award of interest, the whole or any part of which relates to a period after the date of the award, he shall file a certificate giving the following particulars—
(a) whether simple or compound interest was awarded;

(b) the date from which interest was awarded;

(c) whether rests were provided for, specifying them;

(d) the rate of interest awarded, and

(e) a calculation showing the total amount claimed up to the date of the certificate and any sum which will become due thereafter on a per diem basis.


    (2)  The certificate under paragraph (1) must be filed whenever the amount of interest has to be quantified for the purpose of obtaining a judgment or order under section 66 of the Arbitration Act (enforcement of the award) or for the purpose of enforcing such a judgment or order by one of the means mentioned in Order 45, rule 1.



Registration in High Court of foreign awards^[22]
    33.    Where an award is made in proceedings on an arbitration in any part of Her Majesty's dominions or other territory to which Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933^[23] extends, being a part to which Part II of the Administration of Justice Act 1920^[24] extended immediately before the said Part I was extended thereto, then, if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place, Order 71 shall apply in relation to the award as it applies in relation to a judgment given by that court, subject, however, to the following modifications:—
(a) for references to the country of the original court there shall be substituted references to the place where the award was made; and

(b) the affidavit required by rule 3 of the said Order must state (in addition to the other matters required by that rule) that to the best of the information or belief of the deponent the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place.




Registration of awards under the Arbitration (International Investment Disputes) Act 1966^[25]
    34.—(1)  In this rule and in any provision of these rules as applied by this rule—

  "the Act of 1966" means the Arbitration (International Investment Disputes) Act 1966;

  "award" means an award rendered pursuant to the Convention;

  "the Convention" means the Convention referred to in section 1(1) of the Act of 1966;

  "judgment creditor" and "judgment debtor" mean respectively the person seeking recognition or enforcement of an award and the other party to the award.

    (2)  Subject to the provisions of this rule, the following provisions of Order 71, namely, rules 1, 3(1) (except sub-paragraphs (c)(iv) and (d) thereof) 7 (except paragraph (3)(c) and (d) thereof), and 10(3) shall apply with the necessary modifications in relation to an award as they apply in relation to a judgment to which Part II of the Foreign Judgments (Reciprocal Enforcement) Act 1933 applies.

    (3)  An application to have an award registered in the High Court under section 1 of the Act of 1966 shall be made by originating summons which shall be in Form No. 10 in Appendix A.

    (4)  The affidavit required by Order 71, rule 3, in support of an application for registration shall—
(a) in lieu of exhibiting the judgment or a copy thereof, exhibit a copy of the award certified pursuant to the Convention; and

(b) in addition to stating the matters mentioned in paragraph 3(1)(c)(i) and (ii) of the said rule 3, state whether at the date of the application the enforcement of the award has been stayed (provisionally or otherwise) pursuant to the Convention and whether any, and if so what, application has been made pursuant to the Convention, which, if granted, might result in a stay of the enforcement of the award.


    (5)  There shall be kept in the Admiralty and Commercial Registry under the direction of the Senior Master a register of the awards ordered to be registered under the Act of 1966 and particulars shall be entered in the register of any execution issued on such an award.

    (6)  Where it appears to the Court on granting leave to register an award or an application made by the judgment debtor after an award has been registered—
(a) that the enforcement of the award has been stayed (whether provisionally or otherwise) pursuant to the Convention, or

(b) that an application has been made pursuant to the Convention, which, if granted, might result in a stay of the enforcement of the award,

the Court shall, or in the case referred to in sub-paragraph (b) may, stay execution of the award for such time as it considers appropriate in the circumstances.

    (7)  An application by the judgment debtor under paragraph (6) shall be made by summons and supported by affidavit.



Registration of awards under the Multilateral Investment Guarantee Agency Act 1988^[26][27]
    35.    Rule 34 shall apply, with the necessary modifications, in relation to an award rendered pursuant to the Convention referred to in section 1(1) of the Multilateral Investment Guarantee Agency Act 1988 as it applies in relation to an award rendered pursuant to the Convention referred to in section 1(1) of the Arbitration (International Investment Disputes) Act 1966.

    6.    After Form No. 8 in Appendix A there shall be inserted the form in Schedule 1 to these Rules.

    7.    After Form No. 15 in Appendix A there shall be inserted the form in Schedule 2 to these Rules.

Hearsay evidence
    8.    For Order 38, rules 20 to 34, there shall be substituted the following—

"Application and interpretation
    20.—(1)  In this Part of this Order the "1995 Act" means the Civil Evidence Act 1995^[28] and any expressions used in this Part of this Order and in the 1995 Act have the same meanings in this Part of this Order as they have in the Act.

    (2)  In this Part of this Order:

  "hearsay evidence" means evidence consisting of hearsay within the meaning of section 1(2) of the 1995 Act;

  "hearsay notice" means a notice under section 2 of the 1995 Act.

    (3)  This Part of this Order applies in relation to the trial or hearing of an issue or question arising in a cause or matter and to a reference, inquiry and assessment of damages, as it applies to the trial or hearing of a cause or matter.



Hearsay notices
    21.—(1)  A hearsay notice must
(a) state that it is a hearsay notice;

(b) identify the hearsay evidence;

(c) identify the person who made the statement which is to be given in evidence;

(d) state why that person will (or may) not be called to give oral evidence; and

(e) if the hearsay evidence is contained in a witness statement, refer to the part of the witness statement where it is set out.


    (2)  A single hearsay notice may deal with the hearsay evidence of more than one witness.

    (3)  The requirement to give a hearsay notice does not apply to
(a) evidence which is authorised to be given by or in an affidavit; or

(b) a statement which a party to a probate action desires to give in evidence and which is alleged to have been made by the person whose estate is the subject of the action.


    (4)  Subject to paragraph (5), a party who desires to give in evidence at the trial or hearing of a cause or matter hearsay evidence shall
(a) in the case of a cause or matter which is required to be set down for trial or hearing or adjourned into Court, within 28 days after it is set down or so adjourned or within such other period as the Court may specify, and

(b) in any other case, within 28 days after the date on which an appointment for the first hearing of the cause or matter is obtained, or within such other period as the Court may specify,

serve a hearsay notice on every party to the cause or matter.

    (5)  Where witness statements are served under rule 2A of this Order, any hearsay notice served under this rule shall be served at the same time as the witness statements.



Power to call witness for cross-examination on hearsay evidence
    22.—(1)  Where a party tenders as hearsay evidence a statement made by a person but does not propose to call the person who made the statement to give evidence, the court may, on application, allow another party to call and cross-examine the person who made the statement on its contents.

    (2)  An application under paragraph (1) shall be made on notice to all other parties not later than 28 days after service of the hearsay notice.

    (3)  Where the court allows another party to call and cross-examine the person who made the statement, it may give such directions as it thinks fit to secure the attendance of that person and as to the procedure to be followed.



Credibility
    23.—(1)  If
(a) a party tenders as hearsay evidence a statement made by a person but does not call the person who made the statement to give oral evidence, and

(b) another party wishes to attack the credibility of the person who made the statement;

that other party shall notify the party tendering the hearsay evidence of his intention.

    (2)  A notice under paragraph (1) shall be given not later than 28 days after service of the hearsay notice.



Powers exercisable in chambers
    24.    The jurisdiction of the Court under rules 20 to 23 may be exercised in chambers." .

    9.    Nothing in rule 8 shall apply to proceedings
 (a) in which directions have been given, or orders have been made, as to the evidence to be given at the trial or hearing, or
 (b) where the trial or hearing has begun
before 31st January 1997.

Miscellaneous amendments
    10.    Order 29, rule 11(2)(a)^[29] shall be amended by substituting for the words "as insurer" the words "an insurer".

Mackay of Cl;ashfern, C.,

Stephen Brown, P.,

Rattee, J.,

Colman, J.,

Bell, J.,

Jean Ritchie.

Dated 19th December 1996

[1] 1981 c. 54; section 85 was amended by the Courts and Legal Services Act 1990 (c. 41), Schedule 18, paragraph 36(1). back

[2] S.I. 1965/1776; the relevant amending instruments are noted in footnotes to provisions in the body of the instrument. back

[3] Order 11, rule 9 has been amended by S.I. 1979/1716, 1980/629, 2000 and 1983/1181. back

[4] Order 59, rule 1A was added by S.I. 1988/1340 and amended by S.I. 1993/2133 and S.I. 1975. back

[5] 1996 c. 23. back

[6] S.I. 1996/3215. back

[7] The criteria specified in article 4(4) are (a) the financial substance of the dispute in the arbitration, including the value of any claim or counterclaim; (b) the nature of the dispute referred to arbitration (for example, whether it arises out of a commercial or business transaction or relates to engineering, building or other construction work); (c) whether the proceedings are otherwise important and, in particular, whether they raise questions of importance to persons who are not parties, and (d) the balance of convenience points to having the proceedings taken in the Central London County Court Business List. Generally, where the financial substance of the dispute exceeds £200,000, the proceedings are to be taken in the High Court unless they do not raise questions of general importance to persons who are not parties. back

[8] S.I. 1981/1687; the relevant amending instruments are S.I. 1994/1288 and 1996/3218. back

[9] 1996 c. 23. back

[10] Rule 24 restates Order 73, rule 2 which was amended by S.I. 1979/522. 1983/1181 and 1986/632. Rule 1 of Order 73 was revoked by S.I. 1983/1181. back

[11] 1950 c. 27. back

[12] 1979 c. 42. back

[13] Rule 25 restates Order 73, rule 3 which was amended by S.I. 1979/522, 1979/1716 and 1983/1181. back

[14] 1975 c. 3. back

[15] Rule 26 restates Order 73, rule 4 which was amended by S.I. 1987/1423. back

[16] Rule 27 restates Order 73, rule 5 which was amended by S.I. 1979/522, 1986/632 and 2289. back

[17] Rule 28 restates Order 73, rule 6 which was amended by S.I. 1979/522. back

[18] Rule 29 restates Order 73, rule 7 which was amended by S.I. 1979/1542, 1980/2000, 1983/1181, 1987/1423 and 1994/1975. back

[19] Rule 31 restates Order 73, rule 10 which was amended by S.I. 1978/1066, 1979/35, 1716 and 1980/2000. back

[20] Article 2(1)(c) of the High Court and County Courts Jurisdiction Order 1991, S.I. 1991/724, and the High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996, S.I. 1996/3215, enable applications under section 26 of the Arbitration Act 1950 and under sections 66 and 101(2) of the Arbitration Act 1996 to be brought in the county courts as well as in the High Court. back

[21] Section 26 was amended by the Administration of Justice Act 1977 (c. 38), section 17(2), the County Courts Act 1984 (c. 28), Schedule 2 paragraph 22 and S.I. 1991/724. back

[22] Rule 33 restates Order 73, rule 8. back

[23] Rule 34 restates Order 73, rule 9 which was amended by S.I. 1968/1244, 1977/1955, 1979/1716, 1982/1111 and 1987/1423. back

[24] 1933 c. 13. back

[25] 1920 c. 81. back

[26] 1966 c. 41. back

[27] 1988 c. 8. back

[28] Rule 35 restates Order 73, rule 9A which was added by S.I. 1988/1340. back

[29] 1995 c. 38. back

Explanatory Note