The Rules of the Supreme Court (Northern Ireland) (Amendment) 2003

Rule 4(1)

SCHEDULE 1

“ORDER 123

PROCEEDS OF CRIME ACT 2002 – CIVIL RECOVERY

PART I introductory

Interpretation

1.   In this Order –

“the Act” means the Proceeds of Crime Act 2002(1) and a section referred to by number means the section so numbered in the Act; and

expressions used have the same meaning in this Order as in the Act.

Assignment of Proceedings

2.   In this Order the jurisdiction of the High Court under the Act shall be assigned to the Queen’s Bench Division and shall be exercised by a judge in chambers.

Agency staff: pseudonyms

3.   Where a member of staff of the Assets Recovery Agency in relation to whom a direction under section 449 has effect, gives written or oral evidence under this Order, a copy of the certificate issued under section 449(3) shall be filed in the appropriate office.

PART II part 5 of the act

Title of proceedings

4.— (1) An originating summons under this Part of this Order shall be entitled in the matter of the defendant, naming him, and in the matter of the Act and all subsequent documents in the matter shall be so entitled.

(2) An originating summons shall be regarded as the claim form referred to in Part 5 of the Act, the plaintiff shall be regarded as the claimant referred to in that Part and the defendant shall be regarded as the respondent referred to in that Part.

Application for a recovery order

5.— (1) An application by the Director for a recovery order under section 243 shall be made by originating summons.

(2) The application shall be supported by an affidavit which shall contain the following:

(a) full particulars of the matters relied upon in support of the application;

(b) identify the property in respect of which the order is sought;

(c) a statement of whether each piece of property is alleged to be recoverable or associated property;

(d) details of any person who is alleged to hold the property; and

(e) details of the person nominated by the Director under section 267 to act as the trustee for civil recovery.

(3) The application and affidavit in support shall be served in accordance with section 243(2) not less than seven days before the date fixed for the hearing of the application.

6.   An application for an order dispensing with service under section 243(2)(b) may be made by an affidavit stating the facts on which the application is founded.

Application for an interim receiving order

7.— (1) An application by the Director for an interim receiving order under section 246 may be made by summons.

(2) An application under paragraph (1) shall be supported by an affidavit, which shall:

(a) give full particulars of the matters relied upon in support of the application;

(b) to the best of the deponent’s ability, give full particulars of the property in respect of which the order is sought;

(c) state whether each piece of property is alleged to be recoverable or associated property and the matters relied upon in support of those allegations;

(d) state who is believed to hold the property or, if the Director has not established the identity of the person who holds it, specify the steps that have been taken to do so;

(e) specify the person nominated by the Director under section 246 to act as interim receiver (“the nominee”);

(f) where the Director wishes the Court to authorise the nominee to act without the giving of security or before he has given security, specify the reasons why the Director considers this to be necessary;

(g) have exhibited thereto, the written consent of the nominee to act, if appointed; and

(h) have exhibited thereto, an affidavit by a deponent who knows the nominee, stating that he believes that the nominee is a suitable person to be appointed as receiver and the grounds for that belief.

(3) Where an interim receiving order is made, unless the Court directs otherwise, the Director shall serve a copy of the order and the affidavit in support on the defendant and any other person of whom the Director is aware who may be affected by the order.

Interim Receivers

8.— (1) Subject to rules 9 to 11, the provisions of Order 30 rules 2 to 7 shall apply where an interim receiver is appointed by virtue of an interim receiving order.

(2) A receiver may apply for an order to discharge him from office by making an application, which shall be served, together with any evidence of support, on all persons affected by his appointment not less than seven days before the date fixed for the hearing of the application.

Application for directions

9.— (1) An application under section 251 for directions as to the exercise of an interim receiver’s functions shall be made by way of summons.

(2) The summons and any affidavit in support shall, not less than two days before the date fixed for the hearing of the summons, be lodged with the Court and served on –

(a) the interim receiver, where he is not the applicant;

(b) the other party or parties to the proceedings; and

(c) any other person of whom the applicant is aware who may have an interest in the application.

Application for variation and discharge

10.— (1) An application to vary or discharge an interim receiving order under section 251 shall be made by way of summons.

(2) The summons and any affidavit in support shall, not less than two days before the date fixed for the hearing of the summons, be lodged with the Court and served on –

(a) the interim receiver, where he is not the applicant;

(b) the other party or parties to the proceedings; and

(c) any other person of whom the applicant is aware who may be affected by the court’s decision.

Leave

11.— (1) An application for leave under section 253(3) shall be made by summons.

(2) The summons and any affidavit in support shall be served, not less than two days before date for the hearing of the application on:

(a) the tenant;

(b) the person against whom the interim receiving order has been made;

(c) the interim receiver (if appointed); and

(d) any other person of whom the applicant is aware who may be affected by the court’s decision.

Compensation

12.   An application for an order under section 283 shall be made by summons which shall be served, with any supporting evidence, on the Director not less than seven days before the date fixed for hearing.

PART III PART 8 OF THE ACT

Title and service of proceedings

13.— (1) Subject to rules 20 and 22, an originating summons under this Part of this Order shall be entitled in the matter of the defendant, naming him, and in the matter of the Act, and all subsequent documents in the matter shall be so entitled.

(2) Any originating summons, or other document, required to be served under this Part of this Order may be served outside the jurisdiction with the leave of the Court.

Confidentiality

14.   No documents filed in the Central Office in connection with proceedings under this Part of this Order shall be open to inspection without the leave of the Court and no copy of any such document or an extract thereof shall be taken by or issued to any person without such leave.

Production Order

15.— (1) An application for a production order under section 345 may be made ex parte by originating summons and shall name as defendant the person believed to be in possession or control of the material in relation to which the order is sought.

(2) An application under paragraph (1) shall be supported by an affidavit which shall include –

(a) full particulars of the matters relied upon in support of the application; and

(b) confirmation of whether the order sought is under section 345(4)(a) or section 345(4)(b).

16.   Any copy of a production order which is served on the defendant shall have indorsed thereon a statement of the right of any person affected by the order to apply for its variation or discharge.

Order to grant entry

17.— (1) An application for an order to grant entry under section 347 (which may be joined with an application for a production order) may be made ex parte by summons and shall name as defendant the occupier of the premises in relation to which the order is sought.

(2) An application under paragraph (1) shall be supported by an affidavit, which shall include full particulars of the grounds for the application.

18.   Any copy of an order to grant entry which is served on the defendant shall have indorsed thereon a statement of the right of any person affected by it to apply for its variation or discharge.

Search and seizure warrant

19.— (1) An application for a search and seizure warrant under section 352 may be made ex parte by originating summons and shall name as defendant the occupier of the premises in relation to which the order is sought.

(2) An application under paragraph (1) shall be supported by an affidavit which shall include –

(a) full particulars of the matters relied upon in support of the application;

(b) the address or other identification of the premises to which the application relates;

(c) details of any other possible occupants of the premises;

(d) the name and position of the member of staff of the Agency who will execute the warrant (“the named officer”); and

(e) the name and position of any member of staff of the Agency who is authorised by the Director to accompany the named officer (“authorised officer”); and

shall be accompanied by a draft of the warrant being sought.

(3) A copy of the authorisation containing the name of any authorised officer shall be annexed to the affidavit.

(4) A search and seizure warrant issued under section 352 shall be in Form No. 72.

Application for disclosure order

20.— (1) An application by the Director for a disclosure order under section 357 may be made ex parte by originating summons and shall –

(a) wherever possible, name as defendant any person on whom the Director intends to serve notice in accordance with section 357(4); and

(b) be entitled in the matter of the Act and in the name of the defendant, naming him or, where the defendant is not named in the application, in the matter of the property which is the subject of the civil recovery investigation, and all subsequent documents in the matter shall be so entitled.

(2) The application shall be supported by an affidavit which shall include –

(a) full particulars of the matters relied upon in support of the application; and

(b) details of the action to be taken under section 357(4) for which the order is sought.

Disclosure order

21.   Where, pursuant to a disclosure order, the Director gives notice to a person under section 357(4), he shall at the same time serve on that person a copy of the disclosure order which shall –

(a) be indorsed with a statement of the right of any person affected by the order to apply for its variation or discharge; and

(b) have prominently displayed on the front thereof a warning in Form No. 73 in Appendix A.

Application for customer information order

22.— (1) An application by the Director for a customer information order under section 363 may be made ex parte by originating summons and shall –

(a) wherever possible, name as a defendant any financial institution which the order sought is intended to cover; and

(b) be entitled in the matter of the Act and in the matter of the defendant, naming him, or if the defendant is not named in the application, in the matter of the property which is the subject of the civil recovery investigation, and all subsequent documents in the matter shall be so entitled.

(2) An application under paragraph (1) shall be supported by an affidavit which shall include –

(a) full particulars of the matters relied upon in support of the application; and

(b) the name and position of the member of staff of the Agency to whom the customer information is to be given.

Customer information order

23.   Where pursuant to a customer information order, the Director gives notice under section 363(5) to a financial institution, he shall at the same time serve on that financial institution a copy of the customer information order which shall –

(a) be indorsed with a statement of the right of any person affected by the order to apply for its variation or discharge; and

(b) have prominently displayed on the front thereof a warning in Form No.74 in Appendix A.

Account monitoring order

24.— (1) An application by the Director for an account monitoring order under section 370 may be made ex parte by originating summons and shall name as defendant the financial institution against which the order is sought.

(2) The application shall be supported by an affidavit which shall include –

(a) full particulars of the matters relied upon in support of the application;

(b) the name of any person who holds an account to which the application relates;

(c) details of each account, or description of account, in relation to which the order is sought, in particular, the number of each account and the address of the branch at which it is held, if known;

(d) details of the information that is sought about each account;

(e) the period of time for which the order is sought; and

(f) the manner in which and the frequency with which it is proposed that the defendant should provide the information.

25.   Any copy of an account monitoring order which is served by the Director shall have indorsed thereon a statement of the right of any person affected by the order to apply for its variation or discharge.

Discharge and variation

26.— (1) In this Rule, “an investigation order” shall mean an order made under section 345(1), section 347(1), section 357(1), section 363(1) and section 370(1).

(2) An application by a person affected by an investigation order for its variation or discharge may be made by summons which, together with any evidence in support, shall be lodged with the Court and served on the Director not less than two days before the date fixed for the hearing of the summons.

(3) An application by the Director to have an investigation order varied or discharged may be made ex parte by summons which shall, together with any affidavit in support, be lodged with the Court not less than two days before the date fixed for hearing the summons.”

(1)

2002 c. 29