
1 

(1) These Rules may be cited as the Rules of the Supreme Court (Amendment No. 2) 1986
and shall come into operation on 1st October 1986, except for this Rule and Rules 10 to 12, which shall come
into operation on 1st August 1986, and Rules
13 and 14,
which shall come into operation when the Trade Marks (Amendment) Act 1984 comes into
force.
(2) In these Rules an Order referred to by
number means the Order so numbered in the Rules of the Supreme Court 1965 and a Form referred to by number means the Form so numbered
in Appendix A
to those Rules.
2 
Order 6, rule 2(1) shall be amended by adding, at the
end of sub-paragraph (c),
the words:“
and
(iii) in a case where the plaintiff knows
of any person entitled to claim relief against forfeiture as underlessee (including
a mortgagee) under section 146(4)
of the Law of Property Act 1925 or in accordance
with section 38 of the Supreme Court Act 1981, the name and address
of that person.
”.
3 
After Order 6, rule 2(1) there shall be inserted the following
new paragraph:“
(2) Where particulars are
given pursuant to paragraph (1)(c)(iii),
the plaintiff shall send a copy of the writ to the person named.”.
4 
Order 15
shall be amended by inserting, after rule 13, the following new rule:“
13A 

(1) At any stage in an action to which this
rule applies, the Court may, on the application of any party or of its own
motion, direct that notice of the action be served on any person who is not
a party thereto but who will or may be affected by any judgment given therein.
(2) An application under this rule may be
made ex parte and shall be supported by an affidavit
stating the grounds of the application.
(3) Every notice of an action under this
rule shall be in Form No. 52
in Appendix A and accompanied
by a copy of the originating summons or writ and a form of acknowledgment
of service in Form No. 14
or 15 in Appendix
A with such modifications as may be appropriate.
(4) A person may, within 14 days of service
on him of a notice under this rule, acknowledge service of the writ or originating
summons and shall thereupon become a party to the action, but in default of
such acknowledgment and subject to paragraph
(5) he shall be bound by any judgment given
in the action as if he was a party thereto.
(5) If at any time after service of such
notice on any person the writ or originating summons is amended so as substantially
to alter the relief claimed, the Court may direct that the judgment shall
not bind such person unless a further notice together with a copy of the amended
writ or originating summons is served upon him under this rule.
(6) This rule applies to any action relating
to:
(a) the estate of a deceased person, or
(b) property subject to a trust.”.
5 
Form No. 52
in Appendix A shall be renumbered
as Form No. 52A
and the following new form shall be inserted as Form No. 52:“

No. 52
No. 52
”.
6 
Order 38
shall be amended by inserting, after rule 2,
the following new rule:—“
2A 

(1) This rule applies to any cause or matter
which is proceeding in the Chancery Division, the Commercial Court, the Admiralty
Court or as official referees' business, and in this rule “the Court” includes an official
referee.
(2) At any stage in any cause or matter to
which this rule applies, the Court may, if it thinks fit for the purpose of
disposing fairly and expeditiously of the cause or matter and saving costs,
direct any party to serve on the other parties, on such terms as the Court
shall think just, written statements of the oral evidence which the party
intends to lead on any issues of fact to be decided at the trial.
(3) Directions given under paragraph (2) may—
(a) make different provision with regard
to different issues of fact or different witnesses;
(b) require any written statement served
to be signed by the intended witness;
(c) require that statements be filed with
the Court.
(4) Subject to paragraph (6), where the party serving a statement
under paragraph (2)
does not call the witness to whose evidence it relates no other party may
put the statement in evidence at the trial.
(5) Subject to paragraph (6) and unless the Court otherwise
orders, where the party serving the statement does call such a witness at
the trial—
(a) that party may not without the consent
of the other parties or the leave of the Court lead evidence from that witness
the substance of which is not included in the statement served, except in
relation to new matters which have arisen in the course of the trial;
(b) the Court may, on such terms as it thinks
fit, direct that the statement served, or part of it, shall stand as the evidence
in chief of the witness or part of such evidence;
(c) whether or not the statement or any part
of it is referred to during the evidence in chief of the witness, any party
may put the statement or any part of it in cross-examination of that witness.
(6) Where any statement served is one to
which the Civil Evidence Acts 1968 and 1972 apply, paragraphs (4) and (5)
shall take effect subject to the provisions of those Acts and of Parts III and IV
of this Order. The service of a statement pursuant to a direction given under paragraph (2) shall not, unless expressly so
stated by the party serving the same, be treated as a notice under the said
Acts.
(7) Where a party fails to comply with a
direction given under paragraph (2)
he shall not be entitled to adduce evidence to which such direction related
without the leave of the Court.
(8) Nothing in this rule shall deprive any
party of his right to treat any communication as privileged or make admissible
evidence otherwise inadmissible.”.
7 
Order 38, rule 8 shall be amended by inserting, after
the words “of this Order”, the words “(other
than rule 2A)”.
8 
Order 38, rule 38 shall be amended by adding, at the
end, the following new paragraph:“
(3) In any cause or matter
the Court may, if it thinks fit, direct that there be a meeting “without
prejudice” of such experts within such periods before or after the disclosure
of their reports as the Court may specify, for the purpose of identifying
those parts of their evidence which are in issue. Where such a meeting takes
place the experts may prepare a joint statement indicating those parts of
their evidence on which they are, and those on which they are not, in agreement.”.
9 
Order 59
shall be amended as follows:—
(i) rule 4(1) shall be amended by substituting, for the
words “within 4 weeks from”, the words “not later than 4 weeks after” and by substituting, for
the words “signed, entered”, the word “sealed”;
(ii) rule 5(1) shall be amended—
(a) by substituting, for the words from “The appellant must” to “and leave with him”, the words “Within 7 days after the later of (i) the date on which service of the
notice of appeal was effected, or (ii) the date on which the judgment or order
of the court below was sealed or otherwise perfected, the appellant must lodge
with the registrar”;
(b) by substituting a full stop for a comma at the end of sub-paragraph (b) and by omitting the words
thereafter, to the end of the rule;
(iii) rule 5(4) shall be amended by substituting, for the
figure “2”, the figure “4”
and by omitting the words “and any extension of time allowed
under paragraph (1)”;
(iv) rule 6(4) shall be amended by substituting, for the
words “within 2 days after service of the notice, furnish two
copies of the notice to the registrar.”, the words “within
4 days after the later of (i) the date on which service of the respondent's
notice was effected or (ii) the date on which he was notified under rule 5(4) that the appeal had been set down,
lodge with the registrar two copies of the respondent's notice, one of which
shall be indorsed, with the amount of the fee paid, and the other indorsed
with a certificate of the date of service of such respondent's notice.”;
(v) the following new paragraph shall be
inserted after paragraph (1) of rule 14—“
(1A) In support of any
application (whether made ex parte or inter partes) the applicant shall lodge with the registrar such documents
as the Court of Appeal, a single judge or the registrar may direct, and rule 9(3) and (4)
shall apply, with any necessary modifications, to applications as they apply
to appeals.”;
(vi) rule 19(2) shall be amended by substituting, for the
words “The notice of appeal must be served on”,
the words “The appellant must, within the time specified in rule 4, serve the notice of appeal on”;
(vii) the following paragraph shall be substituted
for rule 19(3)—“
In relation to the appeal rule 4(1) and rule 5(1)
shall have effect as if for the words “the date on which the
judgment or order of the court below was sealed or otherwise perfected” there were substituted the words “the date of the judgment
or order of the court below.”
”.
10 
Order 90
shall be amended by substituting, for the title to Part IV, the title “IV. MISCELLANEOUS
PROCEEDINGS”.
11 
Order 90
shall be further amended by substituting a comma for the full stop at the
end of rule 2
and adding the words “and proceedings under Part II of the Children Act 1975
and the Child Abduction and Custody Act 1985 shall be begun in the principal registry.”.
12 
Order 90
shall be further amended by adding, after rule
31, the following new Part:“
V
32 
In this Part of this Order, unless the context otherwise requires:
(a) “the
Act” means the Child Abduction and Custody Act 1985 and words
or expressions bear the same meaning as in the Act;
(b) “the
Hague Convention” means the convention
defined in section 1(1)
of the Act and “the European
Convention” means the convention
defined in section 12(1)
of the Act;
(c) “the
proper officer” means the Senior
Registrar of the Family Division or any officer of the principal registry
acting on his behalf.
33 

(1) Except as otherwise provided by this
Part, every application under the Hague Convention and the European
Convention shall be made by originating summons,
which shall be in Form No. 10
in Appendix A.
(2) An application in custody proceedings
for a declaration under section 23(2)
of the Act shall be made by summons in those proceedings.
34 
The originating summons under which any application is made under
the Hague Convention
or the European Convention
shall state—
(a) the name and date of birth of the child
in respect of whom the application is made;
(b) the names of the child's parents or guardians;
(c) the whereabouts or suspected whereabouts
of the child;
(d) the interest of the plaintiff in the
matter and the grounds of the application; and
(e) particulars of any proceedings (including
proceedings out of the jurisdiction and concluded proceedings) relating to
the child,
and shall be accompanied by all relevant documents including
but not limited to the documents specified in Article 8 of the Hague Convention
or, as the case may be, Article 13
of the European Convention.
35 

(1) In applications under the Hague Convention, in addition to the matters
specified in rule 34—
(a) the originating summons under which an
application is made for the purposes of Article
8 for the return of a child shall state the
identity of the person alleged to have removed or retained the child and,
if different, the identity of the person with whom the child is presumed to
be;
(b) the originating summons under which an
application is made for the purposes of Article
15 for a declaration shall identify the proceedings
in which the request that such a declaration be obtained was made.
(2) In applications under the European Convention, in addition to the matters
specified in rule 34
the originating summons shall identify the decision relating to custody or
rights of access which is sought to be registered or enforced or in relation
to which a declaration that it is not to be recognised is sought.
36 
The defendants to an application under the Act shall be—
(a) the person alleged to have brought into
the United Kingdom the child in respect of whom an application under the Hague Convention is made;
(b) the person with whom the child is alleged
to be;
(c) any parent or guardian of the child who
is within the United Kingdom and is not otherwise a party,
(d) the person in whose favour a decision
relating to custody has been made if he is not otherwise a party, and
(e) any other person who appears to the Court
to have a sufficient interest in the welfare of the child.
37 
Notwithstanding Order 12, rule 9, the time limited for acknowledging
service of an originating summons by which an application is made under the Hague Convention or the European Convention shall be seven days after
service of the originating summons (including the day of service) or, in the
case of a defendant referred to in rule 36(d) or (e),
such further time as the Court may direct.
38 
Notwithstanding Order 28, rule 1A—
(a) the plaintiff, on issuing an originating
summons under the Hague Convention
or the European Convention,
may lodge affidavit evidence in the principal registry in support of his application
and serve a copy of the same on the defendant with the originating summons;
(b) a defendant to an application under the Hague Convention or the European Convention may lodge affidavit evidence
in the principal registry and serve a copy of the same on the plaintiff within
seven days after service of the originating summons on him;
(c) the plaintiff in an application under
the Hague Convention
or the European Convention
may within seven days thereafter lodge in the principal registry a statement
in reply and serve a copy thereof on the defendant.
39 
Any application under the Act (other than an application (a) to
join a defendant, (b) to dispense with service or extend the time for acknowledging
service, or (c) for the transfer of proceedings) shall be heard and determined
by a judge and shall be dealt with in chambers unless the Court otherwise
directs.
40 
The Court may dispense with service of any summons (whether originating
or ordinary) in any proceedings under the Act.
41 
Notwithstanding Order 28, rule 5, the hearing of the originating summons
under which an application under the Hague Convention or the European
Convention is made may be adjourned for a period
not exceeding 21 days at any one time.
42 

(1) A party to proceedings under the Hague Convention shall, where he knows that
an application relating to the merits of rights of custody is pending in or
before a relevant authority, file in the principal registry a concise statement
of the nature of the application which is pending, including the authority
before which it is pending.
(2) A party—
(a) to pending proceedings under section 16 of the Act, or
(b) to proceedings as a result of which a
decision relating to custody has been registered under section 16 of the Act,shall, where he knows that such an application as is specified
in section 20(2)
of the Act is pending in or before a relevant authority, file a concise statement
of the nature of the application which is pending.
(3) The proper officer shall on receipt of
such a statement as is mentioned in paragraph
(1) or (2)
notify the relevant authority in which or before whom the application is pending
and shall subsequently notify it or him of the result of the proceedings.
(4) On the Court receiving notification equivalent
to that mentioned in paragraph (3)
from the Court of Session or the High Court in Northern Ireland—
(a) where the application relates to the
merits of rights of custody, all further proceedings in the action shall be
stayed unless and until the proceedings under the Hague Convention in the Court of Session or,
as the case may be, the High Court in Northern Ireland are dismissed, and
the parties to the action shall be notified by the proper officer of the stay
and of any such dismissal accordingly, and
(b) where the application is such a one as
is specified in section 20(2)
of the Act, the proper officer shall notify the parties to the action.
(5) In this rule “relevant authority” includes
the High Court, a County Court, a Magistrates' Court, the Court of Session,
a Sheriff Court, a Children's Hearing within the meaning of Part III of the Social Work (Scotland)
Act 1968 , the High Court
in Northern Ireland, a County Court in Northern Ireland, a court of summary
jurisdiction in Northern Ireland or the Secretary of State.
43 

(1) At any stage in any proceedings under
the Act the Court may, of its own motion or on the application by summons
of any part to the proceedings issued on two days' notice, order that the
proceedings be transferred to the Court of Session or the High Court in Northern
Ireland.
(2) Where an order is made under paragraph (1) the proper officer shall send
a copy of the order, which shall state the grounds therefor, together with
the originating summons, the documents accompanying it and any evidence, to
the Court of Session or the High Court in Northern Ireland, as the case may
be.
(3) Where proceedings are transferred to
the Court of Session or the High Court in Northern Ireland the costs of the
whole proceedings both before and after the transfer shall be at the discretion
of the Court to which the proceedings are transferred.
(4) Where proceedings are transferred to
the High Court from the Court of Session or the High Court in Northern Ireland
the proper officer shall notify the parties of the transfer and the proceedings
shall continue as if they had been begun by originating summons under rule 33.
44 
An application for interim directions under section 5 or section 19
of the Act may where the case is one of urgency be made ex parte on affidavit but shall otherwise be made by summons.
45 
Without prejudice to the generality of Order 63, rule 4(1),
any person who intends to make an application under the Hague Convention in a Contracting State other
than the United Kingdom shall on satisfying the Court as to that intention
be entitled to obtain an office copy sealed with the seal of the Supreme Court
of any order made in the High Court relating to the child in respect of whom
the application is to be made.
46 

(1) This rule applies to decisions which
have been registered under section 16
of the Act and are subsequently varied or revoked by an authority in the Contracting
State in which they were made.
(2) The Court shall, on cancelling the registration
of a decision which has been revoked, notify—
(a) the person appearing to the Court to
have actual custody of the child;
(b) the person on whose behalf the application
for registration of the decision was made; and
(c) any other party to that applicationof the cancellation.
(3) The Court shall, on being notified of
the variation of a decision, notify—
(a) the person appearing to the Court to
have actual custody of the child; and
(b) any party to the application for registration
of the decisionof the variation and any such person may apply by summons in the
proceedings for the registration of the decision, for the purpose of making
representations to the Court before the registration is varied.
(4) Any person appearing to the Court to
have an interest in the matter may apply by summons in the proceedings for
the registration of a decision for the cancellation or variation of the registration.
47 
At any stage in proceedings under the European Convention the Court may, if it has
reason to believe that any person may have relevant information about the
child who is the subject of those proceedings, order that person to disclose
such information and may for that purpose order that the person attend before
it or file affidavit evidence.”.
13 
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 100 the words “The Trade Marks Act 1938
and The Trade Marks (Amendment) Act 1984.”.
14 
Order 100
shall be amended as follows:
(1) There shall be substituted, for the title,
the words “THE TRADE MARKS ACT 1938 AND THE TRADE MARKS (AMENDMENT)
ACT 1984”;
(2) In the heading to rule 3, after the words “trade mark”, there shall be inserted
the words “or registered service mark”;
(3) In rule
3(1), after the words “a registered
trade mark”, there shall be inserted the words “or
a registered service mark”, and, after the words “that
trade mark”, there shall be inserted the words “or
that service mark”;
(4) In rule
3(2), after the words “of a registered
trade mark”, there shall be inserted the words “or
of a registered service mark”.
15 
Order 104
shall be amended as follows:
(1) For rule
6(1) there shall be substituted the following:“
(1) A person who presents
a petition under section 32
of the 1949 Act or section 72
of the 1977 Act for the revocation of a patent must serve with his petition
particulars of the objections to the validity of the patent on which he relies.”.
(2) After rule
6(1) there shall be inserted the following
new paragraph:“
(1A) A party to an action
concerning a patent who either challenges the validity of the patent or applies
by counterclaim in the action for revocation of the patent must, notwithstanding Order 18, rule 2,
serve his defence or counterclaim (as the case may be), together with particulars
of the objections to the validity of the patent on which he relies, within
42 days after service upon him of the statement of claim.”.
(3) Rule 6(2) shall be amended by inserting, after the words “paragraph (1)”, the words “or (1A)” and by substituting,
for the word “questioned”, the word “challenged”.
(4) After rule
6(4) there shall be inserted the following
new paragraph:“
5 
In any action or other proceedings relating
to a patent in which the validity of the patent has been put in issue on the
ground of obviousness a party who wishes to rely on the commercial success
of the patent must state in his answer or in his pleadings the grounds upon
which he so relies.”
(5) The following new rules shall be inserted
after rule 8:“
9 
Rules 10 to 14
of this Order apply to any action for infringement of a patent (whether or
not any other relief is claimed) and to any proceedings by petition for the
revocation of a patent.
10 

(1) Notwithstanding anything in Order 27, where a party desires any other party
to admit any facts, he shall, within 21 days after service of a reply or answer
or after the expiration of the period fixed for the service thereof, serve
on that other party a notice requiring him to admit for the purpose of the
action or proceedings the facts specified in the notice.
(2) A party upon whom a notice under paragraph (1) is served shall within 21 days
after service thereof serve upon the party making the request a notice stating
in respect of each fact specified in the notice whether or not he admits it.
11 

(1) Order 24, rules 1 and 2 shall apply in an action for infringement
of a patent except that the list of documents must be served by each party
within 21 days after service of the notice of admissions under rule 10(2), or within 21 days after the close
of pleadings.
(2) Order 24, rules 1 and 2 shall apply in proceedings for the revocation
of a patent as they apply to actions begun by writ except that the period
prescribed by rule 2(1)
shall be that which is prescribed by paragraph
(1) of this rule.
12 

(1) Where a party desires to establish any
fact by experimental proof he shall within 21 days after service of the lists
of documents under rule 11
serve on the other party a notice stating the facts which he desires to establish
and giving full particulars of the experiments proposed to establish them.
(2) A party upon whom a notice under paragraph (1) is served shall, within 21 days
after service thereof, serve upon the other party a notice stating in respect
of each fact whether or not he admits it.
(3) Where any fact which a party desires
to establish by experimental proof is not admitted he may at the hearing of
the summons for directions apply for directions in respect of such experiments.
13 
Where a party intends to adduce oral expert evidence he shall not
later than 14 days before the hearing of the summons for directions under rule 14 give notice to every other party and
to the Court of the name of each expert he intends to call as a witness.
This rule is without prejudice to the power of the Court to restrict
the number of expert witnesses.
14 

(1) The plaintiff or petitioner must, within
21 days after the expiration of all the periods specified in rules 10 to 12, take out a summons
for directions as to the place and mode of trial returnable before a judge
of the Patents Court in not less than 21 days, accompanied by minutes of the
order proposed, a copy of the specification of any patent in issue, copies
of the pleadings and of any documents referred to therein and copies of all
documents served under rules 10
and 12 and if the plaintiff
or petitioner does not take out such a summons in accordance with this paragraph,
the defendant or respondent, as the case may be, may do so.
(2) The judge hearing a summons under this
rule may give such directions:
(a) for the service of further pleadings
or particulars;
(b) for the further discovery of documents;
(c) for securing the making of further admissions;
(d) for the service of interrogatories and
of answers thereto;
(e) for the taking by affidavit of evidence
relating to matters requiring expert knowledge, and for the filing of such
affidavits and the service of copies thereof on the other parties;
(f) for the holding of a meeting of such
experts as the judge may specify, for the purpose of producing a joint report
on the state of the relevant art;
(g) for the exchanging of experts' reports,
in respect of those matters on which they are not agreed;
(h) for the making of experiments, tests,
inspections or reports;
(i) for the hearing, as a preliminary issue,
of any question that may arise (including any questions as to the construction
of the specification or other documents)and otherwise as the judge thinks necessary or expedient for the
purpose of defining and limiting the issues to be tried, restricting the number
of witnesses to be called at the trial of any particular issue and otherwise
securing that the case shall be disposed of, consistently with adequate hearing,
in the most expeditious manner. Where the evidence is directed to be given
by affidavit, the deponents must attend at the trial for cross-examination
unless, with the concurrence of the Court, the parties otherwise agree.
(3) On the hearing of a summons under this
rule the judge shall consider, if necessary of his own motion, whether:
(a) the parties' advisers should be required
to meet for the purpose of agreeing which documents will be required at the
trial and of paginating such documents;
(b) an independent scientific adviser should
be appointed under rule 15
to assist the court.
(4) Part IV
of Order 38 shall not apply to an action or
proceedings to which this rule applies.
(5) No action or petition to which this rule
applies shall be set down for trial unless and until a summons under this
rule in the action or proceedings has been taken out and the directions given
on the summons have been carried out or the time fixed by the judge for carrying
them out has expired.”.
(6) The present rule 10 shall be revoked.
(7) The present rule 11 shall be re-numbered as rule 15, the present rule 9 shall be re-numbered as rule 16 and the present rules 12 to 18 shall be renumbered
as rules 17 to 23.
Hailsham of St Marylebone, C
Lane, C.J
John F. Donaldson, M.R
John Arnold, P
Nicolas Browne-Wilkinson, V-C
Dillon, L.J
Hirst, J
Steyn, J
John R. Cherryman
R. J. P. Aikens
Michael S. Howells
Harvey M. Crush
Dated 10th July 1986