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The Rules of the Supreme Court (Amendment No. 2) 1974

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5.  For Order 98 there shall be substituted the following Order:—

: ORDER 98LOCAL GOVERNMENT ACT 1972, PART VIII

Interpretation

1.  In this Order “the Act” means the Local Government Act 1972 (1) and a section referred to by number means the section so numbered in that Act.

Application by district auditor for declaration

2.(1) The jurisdiction of the High Court under section 161(1) to make a declaration that an item of account is contrary to law shall be exercised by a Divisional Court of the Queen's Bench Division on an application made by originating motion.

(2) Notice of the motion shall be served on the body to whose accounts the application relates and on any person against whom, an order is sought under section 161(2).

(3) Not later than seven days after lodging the notice of motion in the Crown Office in accordance with Order 57, rule 2, the applicant shall file in that office an affidavit stating the facts on which he intends to rely at the hearing of the application.

(4) A motion under this rule shall be entered for hearing within six weeks after the notice has been lodged in the Crown Office but, unless the Court otherwise directs, the application shall not be heard sooner than 28 days after service of the notice.

Appeal against decision of auditor

3.(1) Notice of motion by which an appeal is brought under section 161(6) against the decision of a district auditor shall be served on—

(a)the district auditor who for the time being has responsibility for the audit of the accounts of the body in relation to whom the appeal relates;

(b)that body; and

(c)in the case of an appeal against a decision not to certify under section 161(4) that a sum or amount is due from another person, that person.

(2) Order 55, rules 4(2) and 5, shall apply to the appeal with the modification that the period of 28 days mentioned in the said rule 4(2) shall be calculated from the day on which the appellant received the district auditor's statement of the reasons for his decision pursuant to a requirement under section 161(5).

(3) Not later than seven days after lodging notice of the motion in the Crown Office in accordance with Order 57, rule 2, the appellant must file in that office an affidavit stating—

(a)the reasons stated by the district auditor for his decision;

(b)the date on which he received the district auditor's statement;

(c)the facts on which he intends to rely at the hearing of the appeal;

(d)in the case of a decision not to apply for a declaration, such facts within the appellant's knowledge as will enable the Court to consider whether to exercise the powers conferred on it by section 161(2).

General provisions

4.(1) Without prejudice to its powers under Order 15, the Court may at any stage on an application or appeal under section 161 direct that any officer or member of the body to whose accounts the application or appeal relates be joined as a respondent.

(2) Except in so far as the Divisional Court directs that the evidence on any such application or appeal shall be given orally, it shall be given by affidavit.

(3) The applicant or appellant must forthwith after filing any affidavit under rule 2(3) or 3(3) serve a copy thereof on every respondent and any person intending to oppose the application or appeal must, not less than four days before the hearing, serve on the applicant or appellant a copy of any affidavit filed by him in opposition to the motion.

(4) Except by leave of the Court, no affidavit may be used at the hearing unless a copy thereof was served in accordance with paragraph (3).

(1)

1972 c.16.

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