Part 40 – Appointment of Referee to Inquire and Report
- tocCivil Procedure Rules
|Contents of this Part|
|Power to order trial before referee||Rule 40.1|
|Reference to referee to inquire and report||Rule 40.2|
|Appointment of referee||Rule 40.3|
|Conduct of reference||Rule 40.4|
|Report following reference||Rule 40.5|
|Consideration of report by court||Rule 40.6|
|Restrictions on appointment of referee in a claim by or against Crown||Rule 40.7|
Power to order trial before referee
- If the –
- court considers that the claim requires –
- prolonged examination of documents; or
- scientific or local investigation which cannot conveniently be carried out by the court;
- matters in dispute are wholly or mainly a matter of account; or
- parties agree; then subject to rule 40.7, then the court may order the claim or any issue or allegation to be tried by a referee.
- court considers that the claim requires –
Reference to referee to inquire and report
- The court may refer to a referee for inquiry and report any question or issue of fact arising in a claim.
- The general rule is that a referee must be appointed at a case management conference or pre-trial review.
- The referee must be a person agreed on by the parties or, if they fail to agree, a person selected by the court in accordance with paragraph (3).
- If the parties cannot agree who should be the referee, the court may –
- select the referee from a list prepared or identified by the parties; or
- direct that the referee be selected in such other manner as the court directs.
- The court must identify the question or issue upon which the referee is to report.
- The court must decide what fee is to be paid to the referee and by whom.
- Notwithstanding paragraph (5), the court may ultimately order any party to pay the fee of the referee.
- For the purpose of the inquiry, the referee has the same powers as the court other than the power to commit for contempt of court.
- Unless the court otherwise orders, the referee must adopt the simplest, least expensive and most expeditious method of conducting the reference.
- The referee may hold the trial or conduct the inquiry at any place and at anytime which appears to the referee to be convenient to the parties.
- If a person served with a witness summons to appear before a referee –
- fails to attend;
- refuses to answer any lawful question or produce any document at the inquiry; or
- refuses to be sworn or affirm for the purposes of the inquiry; the referee must sign and file a certificate of such failure or refusal.
- Any party may apply to the court for an order requiring the person served with the witness summons to appear before a referee to attend, be sworn or affirmed, or answer any question or produce any document, as the case may be.
- An application for an order under paragraph (5) maybe made without notice but must be supported by evidence on affidavit.
- In the case of non-attendance, the affidavit must prove –
- service of the witness summons; and
- that the person served with the witness summons was paid or offered the payments required by rule 33.6.
- An order under this rule must be served personally on the person served with the witness summons and be endorsed with a notice in accordance with the first form in rule 53.3(b).
- A person who willfully disobeys an order made against that person under this rule commits contempt of court.
- The court may order the person against whom an order is made under this rule to pay any costs resulting from the –
- failure to attend before a referee;
- refusal to answer any lawful question or produce any document at the inquiry; or
- refusal to be sworn or to affirm for the purpose of the inquiry.
- Part 53 deals with the procedure to apply to commit a person for contempt of court.
- The report of the referee is to be made to the court.
- The referee must supply a copy of the report to each party.
- The referee may in the report –
- make a special statement of facts from which the court may draw inferences; or
- submit any question for the decision of the court.
Consideration of report by court
- Upon receipt of the report of the referee, the court office must fix a date, time and place for consideration of the report by the court.
- The court office must give 14 days notice to the parties of such consideration.
- The court may –
- adopt the report in whole or in part;
- ask the referee to explain any part of the report;
- decide the question or issue on the evidence taken by the referee;
- direct that additional evidence be given to the court;
- remit any question or issue for further consideration; or
- vary the report.
Restrictions on appointment of referee in a claim by or against Crown
- In a claim by or against the Crown an appointment of a referee may not be made without the consent of the relevant Attorney General.