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Amendment of the principal Rules
     4.  - (1) After Order 122 there shall be added the Order set out in Schedule 1 to these Rules.

    (2) Order 116 shall be amended by inserting, after rule 41, the Part set out in Schedule 2 to these Rules.

Amendment of Appendix A
     5. In Appendix A after Form No. 71 there shall be inserted the Forms set out in Schedule 3 to these Rules.


R. D. Carswell

Antony Campbell

Brian Kerr

F. P. Girvan

Declan Morgan

Mark Horner

Caroline McGonagle

Tony Caher

Dated 29th January 2003



I concur,


Irvine of Lairg,
C.

Dated 3rd February 2003

" 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[4] 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."

" PART III
PROCEEDS OF CRIME ACT 2002
Interpretation
     42. In this Part of this Order -


"the Act" means the Proceeds of Crime Act 2002[5] and a section referred to by number means the section so numbered in the Act;

expressions used in this Part of this Order which are used in the Act have the same meaning in this Part of this Order as in the Act.

Assignment of proceedings
     43. 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.

Title and service of proceedings
     44.  - (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) Any originating summons, or other document, required to be served under this Part of this Order may be served out of the jurisdiction with the leave of the court.

Application for restraint order
     45.  - (1) An application for a restraint order under section 191 may be made ex parte by originating 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 the support of the application;

(b) to the best of the deponent's ability, give full particulars of the realisable property in respect of which the order is sought and specify the person holding such property;

(c) give the grounds for, and full particulars of, any order sought under section 190(7); and

(d) where the applicant is an accredited financial investigator, include a statement that he has been authorised under section 216 to make the application.



    (3) Where a restraint order is made the applicant shall, unless the Court directs otherwise, serve copies of the order and of the affidavit in support on the defendant and on all other named persons restrained by the order and shall notify of its terms all other persons or bodies of whom the applicant is aware who are affected by the order.

Restraint Order
     46.  - (1) A restraint order may require the applicant to indemnify third parties against expenses incurred in complying with the order but the applicant shall not be required to give an undertaking to abide by an order as to damages sustained by the defendant or other person as a result of the restraint order.

    (2) Unless the Court otherwise directs, a restraint order made ex parte shall have effect until the Court makes an order varying or discharging the restraint order.

Application for discharge or variation of restraint order by person affected by the order
     47. An application for the discharge or variation of a restraint order or an order made under section 190(7) by a person affected by the order shall be made by summons which, together with any affidavit in support, shall be lodged with the Court and, not less than two days before the date fixed for the hearing of the summons, served on:



(a) the person who applied for the restraint order;

(b) all other named persons restrained by the order; and

(c) any other person of whom the applicant is aware who may be affected by the application.



Application for variation of restraint order by person who applied for the order
     48.  - (1) An application for variation of a restraint order or an order made under section 190(7) by the person who applied for the order shall be made by summons.

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



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

(b) where the application is for the inclusion of further realisable property in the restraint order, to the best of the deponent's ability give full particulars of the realisable property in respect of which the variation of the order is sought and specify the person holding such property; and

(c) where the applicant is an accredited financial investigator, include a statement that he has been authorised under section 216 to make the application.



    (3) The summons and affidavit in support shall be lodged with the Court not less than two days before the date fixed for hearing the summons and, subject to paragraph (4), served on:



(a) the defendant; and

(b) the receiver, where one has been appointed in the matter; and

(c) any other person of whom the applicant is aware who may be affected by the order.



    (4) An application under paragraph (1) may be made ex parte where the case is one of urgency or the giving of notice would cause a reasonable apprehension of dissipation of assets.

    (5) Rule 45(3) shall apply to the service of an order varying a restraint order and to the notification of all other persons or bodies affected thereby.

Application for discharge of restraint order by person who applied for the order
     49.  - (1) An application for discharge of a restraint order or an order made under section 190(7) by the applicant for the order may be made ex parte by summons.

    (2) An application under paragraph (1), together with any affidavit in support, shall be lodged with the Court not less than two days before the date fixed for the hearing of the summons.

    (3) Rule 45(3) shall apply to the service of an order discharging a restraint order and to the notification of all persons or bodies affected thereby.

Application for appointment of a receiver
     50.  - (1) An application for the appointment of a receiver under section 196 shall be made by summons.

    (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) full details of the proposed receiver;

(c) to the best of the deponent's ability, full particulars of the realisable property in respect of which the order is sought and specify the person holding such property;

(d) where the applicant is an accredited financial investigator, a statement that he has been authorised under section 216 to make the application; and

(e) if the proposed receiver is not a member of staff of the Agency, the Department of the Director of Public Prosecutions (Northern Ireland) or the Commissioners of Her Majesty's Customs and Excise and the applicant wishes the Court to authorise the proposed receiver to act without the giving of security or before he has given security, a statement of the reasons why the applicant considers this to be necessary.



    (3) The summons and affidavit in support shall be lodged with the Court not less than seven days before the date fixed for the hearing, and subject to paragraph (4), served on:



(a) the defendant;

(b) any person who holds realisable property to which the application relates; and

(c) any other person of whom the applicant is aware who may be affected by the application.



    (4) An application under paragraph (1) may be made ex parte where -



(a) it is joined with an application for a restraint order under rule 45;

(b) the case is one of urgency; or

(c) the giving of notice would cause a reasonable apprehension of dissipation of assets.



    (5) Where the Court makes an order appointing a receiver, unless the Court otherwise directs, the applicant shall serve copies of the order and of the affidavit in support on:



(a) the defendant;

(b) the receiver;

(c) any person who holds realisable property to which the order applies; and

(d) any other person of whom the applicant is aware who may be affected by the order.



Receivers
     51.  - (1) Subject to the provisions of this Rule, the provisions of Order 30, rules 2 to 8 shall apply where a receiver is appointed under section 196.

    (2) Where a receiver is appointed under section 196 and he is a member of the staff of the Agency, the Department of the Director of Public Prosecutions (Northern Ireland) or the Commissioners of Her Majesty's Customs and Excise:



(a) it shall not be necessary for him to give security, unless the Court otherwise directs; and

(b) Order 30 rule 3 shall not apply.



Powers of a receiver
     52.  - (1) An application for an order for the confirment of powers on a receiver under section 197 shall be made by summons.

    (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) to the best of the deponent's ability, full particulars of the realisable property in respect of which the order is sought and details of the person holding such property; and

(c) where the applicant is an accredited financial investigator, a statement that he has been authorised under section 216 to make the application.



    (3) The summons and affidavit in support shall be lodged with the Court not less than seven days before the date fixed for hearing, and subject to paragraph (4), served on:



(a) the defendant;

(b) the receiver;

(c) any person who holds realisable property to which the application relates; and

(d) any other person of whom the applicant is aware who may be affected by the application.



    (4) Except where section 197(8) applies, an application under paragraph (1) may be made ex parte -



(a) where the application is joined with an application for a restraint order under rule 45;

(b) the case is one of urgency; or

(c) the giving of notice would cause a reasonable apprehension of dissipation of assets.



    (5) Rule 50(5) shall apply to the service of an order conferring powers on the receiver.

Application for discharge or variation of receivership order and application for other orders
     53.  - (1) An application under section 210(3) or section 211(1) shall be made by summons which, together with any affidavit in support, shall be lodged with the Court and, not less than seven days before the date fixed for the hearing of the summons, be served, where he is not the applicant, on:



(a) the person who applied for the appointment of the receiver;

(b) the defendant;

(c) any person who holds realisable property in respect of which the receiver has been appointed;

(d) the receiver; and

(e) any other person of whom the applicant is aware who may be affected by the application.



    (2) Where the Court makes an order under section 211(2) for the discharge or variation of an order relating to a receiver, copies of the order shall be served by the applicant on all those who were served with a copy of the application under paragraph (1).

Application for leave
     54. An application for leave under section 206(2) shall be made by summons which, together with any affidavit in support, shall be lodged with the Court and, not less than seven days before date for the hearing of the application, be served on:



(a) the tenant;

(b) the applicant for the restraint order;

(c) the person against whom the restraint order has been made;

(d) the receiver (if appointed); and

(e) any other person of whom the applicant is aware who may be affected by the application.



Application for registration
     55.  - (1) An application for registration of an order under Article 16 of the Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002[6] ("the 2002 Order") may be made ex parte.

    (2) An application under paragraph (1) shall be supported by an affidavit -



(a) exhibiting the order, or a certified copy thereof; and

(b) giving, to the best of the deponent's ability, full particulars of the realisable property located in Northern Ireland in respect of which the order was made, and specifying the person holding such property.



Register of orders
     56.  - (1) There shall be kept in the Central Office under the direction of the Master a register of the orders registered under Article 16 of the 2002 Order.

    (2) There shall be included in such register particulars of any variation or setting aside of a registration, of any variation or discharge of a registered order, and of any execution issued on the order.

Notice of registration
     57.  - (1) Notice of the registration of an order shall be served on any person holding realisable property to which the order applies, and any other person of whom the applicant is aware who may be affected by the order, by delivering it to him personally or by sending it to him at his last known address or place of business or in such other manner as the Court may direct.

    (2) Service of a notice under paragraph (1) out of the jurisdiction may be effected without leave and Order 11, rules 5, 6 and 8 shall apply in relation to such a notice as they apply in relation to a writ.

Application to vary or set aside registration
     58.  - (1) An application to vary or set aside the registration of an order may be made by -



(a) any person who holds realisable property to which the order applies; and

(b) any person affected by an order.



    (2) An application under paragraph (1) shall be made to a judge by summons supported by affidavit.

    (3) The summons, together with the affidavit in support, shall be lodged with the Court and served on the applicant for registration not less than seven days prior to the date fixed for the hearing of the summons.

    (4) Where an application is made under paragraph (1), the registered order shall not, unless the Court otherwise orders, be enforced until after such application is determined.

Variation and discharge of the registered order
     59. Upon the Court being notified by the applicant for registration that an order which has been registered has been varied or discharged, particulars of the variation or discharge, as the case may be, shall be entered in the register.

Agency staff: pseudonyms
     60. 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 Part of this Order, a copy of the certificate issued under section 449(3) shall be filed in the appropriate office."

[2] 2002 c. 29back

[3] S.R.1980 No. 346 to which the most recent relevant amendments have been S.R. 2000 No. 243 and S.R.2000 No. 393back

[4] 2002 c. 29back

[5] 2002 c. 29back

[6] S.I. 2002/3133back

  © Crown copyright 2003