Part 70 – Admiralty Proceeding

Scope of this Part

 70.1

1. This Part applies to Admiralty proceedings including those proceedings listed in rule 70.2 and any other Admiralty jurisdiction of the High Court.
2. The other provisions of these Rules apply to Admiralty proceedings subject to the provisions of this Part.
3. In this Part –
   • “Act” means any relevant enactment relating to merchant shipping in force in the particular Member State or Territory;
   • “caveat against arrest” means a caveat entered in the caveat book under rule 70.10;
   • “caveat against release and payment” means a caveat entered in the caveat book under rule 70.15;
   • “caveat book” means the book in which caveats issued under this Part are entered;
   • “claim in rem” means any such claim as is mentioned in rule 70.3;
   • “collision regulations” means regulations made under the Act or in accordance with any international convention or treaty applicable to the relevant Member State or Territory;
   • “limitation claim” means any proceedings by ship owners or other persons under the Act for the limitation of the amount of their liability in connection with a ship or other property;
   • “relevant person” means the person referred to in rule 70.9(3) (b) that is the person who would be liable on the claim in a claim in personam; and
   • “ship” includes every description of vessel used in navigation and not propelled by oars and, where the context so admits, includes an aircraft.

Claims to be dealt with under this Part

70.2

1. The following claims, questions and proceedings, namely –
   1. all proceedings to enforce a claim for damage, loss of life or personal injury arising out of –
      1. a collision between ships;
      2. the carrying out of or omission to carry out a manoeuvre in the case of one or more of two or more ships; or
      3. non-compliance, on the part of one or more of two or more ships, with the collision regulations;
   2. any application to the court under the Act;
   3. any claim arising out of an act which is or is claimed to be a general average act;
   4. any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;
   5. any claim arising out of bottomry;
   6. any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship;
   7. any claim for damage done by a ship;
   8. any claim for damage received by a ship;
   9. any claim for loss of life or personal injury sustained in conse­quence of any defect in a ship or in her apparel or equipment, or in consequence of the wrongful act, neglect or fault of –
      1. the owners, charterers or persons in possession or control of a ship; or
      2. the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible; being an act, neglect or default in the navigation or management of a ship or in the loading, carriage or disembarkation of persons on, in or from the ship;
   10. any claim for loss or damage to goods carried in a ship;
   11. any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship, or for the restoration of a ship or any such goods after seizure, or for droits of Admiralty;
   12. any claim in respect of a mortgage of or charge on a ship or any share therein;
   13. any claim in respect of goods or materials supplied to a ship for her operation or maintenance;
   14. any claim in respect of the construction, repair or equipment of a ship or dock charges or dues;
   15. any claim in the nature of pilotage in respect of a ship or an aircraft;
   16. any claim in the nature of towage in respect of a ship or an aircraft;
   17. any claim to the possession or ownership of a ship or to the ownership of any share therein, including power –
       1. to settle any account outstanding and unsettled between the parties in relation to the ship; and
       2. to direct that the ship, or any share thereof, must be sold, and to make such other order as the court thinks fit;
   18. any claim –
       1. under the International Convention on Salvage 1989; or
       2. under any contract for or in relation to salvage services; or
       3. in the nature of salvage not falling within (i) or (ii) above, or any corresponding claim in connection with an aircraft,:
   19. any question arising between the co-owners of a ship as to posses­sion, employment or earnings of that ship;
   20. every limitation claim, in relation to –
       1. all ships or aircraft whether of any Member State or Territory or not and whether registered or not and wherever the residence or domicile of their owners may be;
       2. all claims, wherever arising (including, in the case of cargo or wreck salvage, claims in respect of cargo or wreck found on land); and
       3. (so far as they relate to ships or aircraft) all mortgages or charges, whether registered or not and whether legal or equitable including mortgages and charges created under foreign law;
   21. subject to any limitations imposed by the Act, any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages); are to be dealt with as Admiralty claims.

Admiralty claims in rem

70.3

1. In the case of any such claim or question as is mentioned in rule 70.2(b), (1), (q) or (s) a claim in rem may be brought against the ship or property in connection with which the claim or question arises.
2. In any case in which there is a maritime lien or other charge on any ship, aircraft or other property for the amount claimed, a claim in rem may be brought against that ship, aircraft or property.
3. In the case of any such claim as is mentioned in rule 70.2(c) to (g), (i) to (k), (m) to (p), (r) and (u), where –
   1. the claim arises in connection with a ship; and
   2. the person who would be liable in a claim in personam was, when the cause of action arose, the owner or charterer, or in possession or in control, of the ship; a claim in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought against –
      1. that ship, if at the time when the claim is made the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or
      2. any other ship of which, at the time when the claim is made, the relevant person is the beneficial owner as respects all the shares in it.
4. In the case of a claim in the nature of towage or pilotage in respect of an aircraft, a claim in rem may be brought against that aircraft if, at the time when the claim is made, it is beneficially owned by the person who would be liable on the claim in a claim in personam.
5. For the purpose of determining under paragraphs (3) and (4) whether a person would be liable on a claim in personam it shall be assumed that that person has an habitual residence or place of business within the jurisdiction.
6. In this rule –
   • “the time when the claim is made” means the date on which the claim is issued in accordance with rule 8.1(2)
7. If, as regards any claim mentioned in rule 70.3(3), a ship has been
   1. served with a claim form or arrested in a claim in rem brought to enforce that claim, no other ship may be – served with a claim form; or
   2. arrested; in that or any other claim in rem brought to enforce that claim.
8. Paragraph (7) does not prevent the issue, in respect of any one such claim, of a claim form naming more than one ship or two or more claim forms each naming a different ship.
9. A claim in rem may not be brought against the Crown.

How to make Admiralty claim

70.4

1. An Admiralty claim in rem is begun by a claim form in Form 25.
2. An Admiralty claim in personam is begun by a claim form in Form 1.
3. A limitation claim is begun by a claim form in Form 26.
4. A claim in rem and a claim in personam may not be combined in the same claim form.
   • Part 6 deals with the service of other documents.
   • Part 8 deals with the issue of a claim form.

 Service of claim form in rem

70.5

1. Subject to paragraph (2), a claim form by which a claim in rem is begun must be served on the property against which the claim is brought, except where the property –
   1. has been sold by the marshal, in which case the claim form may not be served on that property but a sealed copy of it must be filed and the claim is deemed to have been duly served on the day on which the copy was filed; and
   2. is freight, in which case the claim form must be served on the cargo in respect of which the freight is payable or on the ship in which that cargo was carried.
2. A claim form need not be served or filed as mentioned in paragraph (1) if it is deemed to have been duly served on the defendant by virtue of rule 5.19(2) or (3).
3. If by virtue of this rule a claim form is required to be served on any property, the claimant may request service of the claim form to be effected by the marshal only if a warrant of arrest has been issued for service against the property or the property is under arrest.
4. Where paragraph (3) applies the claimant must file a request in the appropriate practice form and lodge –
   1. the claim form and a copy thereof; and
   2. an undertaking to pay on demand all expenses incurred by the marshal in respect of the service of the claim form; and thereupon the marshal must serve the claim form on the property described in the request.
5. If a claim form is served on any property by the marshal, the person effecting service must endorse on the claim form the following particu­lars –
   1. the day of the week and the date on which it was served;
   2. the manner in which it was served;
   3. the name and the address of the person effecting service;
   4. the property on which it was served; and
   5. where it was served; and the endorsement is evidence of the facts stated.
6. If the –
   1. claimant; or
   2. claimant’s legal practitioner; in a claim in rem becomes aware that there is in force a caveat against arrest with respect to the property against which the proceedings are brought, that person must serve the claim form forthwith on the person at whose instance the caveat was entered.
7. The general rule is that if a claim form by which a claim in rem is begun is amended after service under Part 20, the amended claim form must be served on any –
   1. defendant who has acknowledged issue or service of the claim form; and
   2. intervener.
8. However, if no defendant has acknowledged issue or service of the claim form, it must be served or filed –
   1. in accordance with paragraph (1); or
   2. as the court otherwise directs.
9. An application for a direction under paragraph (8) (b) may be made without notice but must be supported by evidence on affidavit.

 Service on ships, etc. – how effected

 70.6

1. The general rule is that service of a warrant of arrest or claim form in proceedings in rem against a ship, freight or cargo is to be effected by –
   1. affixing the warrant or claim form for a short time on any mast of the ship or on the outside of any suitable part of the ship’s superstructure; and
   2. on removing the warrant or claim form, leaving a copy of it affixed –
      1. (in the case of the warrant) in its place; or
      2. (in the case of the claim form) on a sheltered, conspicuous part of the ship.
2. However, service of a warrant of arrest or claim form in proceedings in rem against freight or cargo or both, if the cargo has been landed or transhipped, is to be effected –
   1. by placing the warrant or claim form for a short time on the cargo and, on removing the warrant or claim form, leaving a copy of it on the cargo; or
   2. if the cargo is in the custody of a person who will not permit access to it, by leaving a copy of the warrantor claim form with that person.

Service of claim form out of jurisdiction

70.7

1. A claim form under rule 70.2(1) (g) or (v) other than a claim form in rem may be served out of the jurisdiction with the permission of the court if –
   1. the defendant’s habitual residence or place of business is within the jurisdiction;
   2. the facts out of which the claim arises took place within the waters or within the limits of a port of a Member State or Territory; or
   3. a claim arising out of the same incident or series of incidents is proceeding in the court or has been heard and determined in the court.
2. An application to serve a claim form out of the jurisdiction must be made in accordance with rule 7.5.
3. In this rule –
   • “port” includes a place and a harbour.

 Acknowledgment of service

 70.8

1. A defendant to a claim form in rem which has not been served, or a defendant to a limitation claim who has not been served with the claim form, who desires to take part in the proceedings, may acknowledge the issue of the claim form by filing an acknowledgment of service substituting for the references to service of the claim form references to issue of the claim.

Warrant of arrest

70.9

1. In a claim in rem the claimant or defendant who counterclaims may, after the issue of the claim form and subject to the provisions of this rule, issue a warrant in Form 27 for the arrest of the property against which the claim or counterclaim is brought.
2. The party intending to issue the warrant must first cause a search to be made in the caveat book to see whether there is a caveat against arrest in force with respect to that property.
3. The general rule is that a warrant of arrest may not be issued until the party intending to issue the same has filed an affidavit made by the party or its agent containing the following particulars –
   1. in every case –
      1. the nature of the claim or counterclaim and that it has not been satisfied;
      2. if the claim arises in connection with a ship, the name of that ship;
      3. the nature of the property to be arrested; and
      4. if the property is a ship, the name of the ship and her port of registry;
   2. in the case of a claim against a ship under rule 70.2(c) to (g), (i) to (k), (m) to (p), (r) and (u) –
      1. the name of the person who would be liable on the claim in a claim in personam;
      2. that the relevant person was when the cause of action arose the owner or charterer of, or in possession or in control of, the ship in connection with which the claim arose; and
      3. that at the time of the issue of the claim form the relevant person was either the beneficial owner of all the shares in the  ship in respect of which the warrant is required or (where appropriate) the charterer of it under a charter by demise; and
   3. in the case of a claim for possession of a ship or for wages –
      1. the nationality of the ship in respect of which the warrant is required; and
      2. that the notice (if any) required by paragraph (7) has been sent.\
4. Where appropriate a copy of any notice sent to a consul under paragraph (7) must be exhibited to an affidavit required by paragraph (3).
5. The court may, however, give permission to issue the warrant notwith­standing that the affidavit does not contain all those particulars.
6. A warrant of arrest may not be issued without the permission of the court in the case of property whose beneficial ownership has, since the issue of the claim, changed as a result of a sale or disposal by the court.
7. The general rule is that a warrant of arrest may not be issued in a claim in rem against a foreign ship registered at a port of a State having a consulate in the jurisdiction, being a claim for possession of the ship or for wages, until notice that the proceedings has been begun has been sent to the consul or the court gives permission.
8. Issue of a warrant of arrest takes place upon its being sealed by the court office.

Caveat against arrest

70.10

1. Except in a case to which paragraph (2) applies, a person who wishes to prevent the arrest of any property must file a request in the appropriate practice form signed by that person or that person’s legal practitioner undertaking –
   1. to acknowledge issue or service (as may be appropriate) of the claim form in any claim that may be made against the property described in the request; and
   2. within 3 days after receiving notice that such a claim has been made, to give bail in that claim in a sum not exceeding an amount specified in the request or to pay the amount so specified into court.
2. On the filing of the request under paragraph (1) the court office must enter a caveat against the issue of a warrant to arrest the property described in the request in the caveat book.
3. If a claimant in limitation proceedings –
   1. has constituted a limitation fund in accordance with Article 11 of the Convention on Limitation of Liability for Maritime Claims 1976 and rule 70.35; and
   2. desires to prevent the arrest of any property for a claim which may be or has been made against the fund; the claimant must file in the court office a request, in the appropriate practice form signed by the claimant or its legal practitioner –
      1. stating that a limitation fund in respect of damage arising from the relevant incident has been constituted; and
      2. undertaking to acknowledge issue or service (as may be appropriate) of the claim form in any claim that may be begun against the property described in the request; and on the filing of the request a caveat against the issue of a warrant to arrest the property described in the request must be entered in the caveat book.
4. The fact that there is a caveat against arrest in force does not prevent the issue of a warrant to arrest the property to which the caveat relates.
5. If any property with respect to which a caveat against arrest is in force is arrested in pursuance of a warrant of arrest, the party at whose instance the caveat was entered may apply to the court for an order discharging the warrant.
6. On the hearing of an application under paragraph (5), the court, unless it is satisfied that the party procuring the arrest of the property had a good and sufficient reason for so doing, may  –
   1. by order discharge the warrant; and
   2. order the last-mentioned party to pay to the applicant damages in respect of the loss suffered by the applicant as a result of the arrest.

Committal of legal practitioner for failing to comply with undertaking

 70.11

1. If the legal practitioner for a party to a claim in rem fails to comply with a written undertaking given by him or her to any other party or legal practitioner to  –
   1. acknowledge issue or service of the claim form;
   2. give bail; or
   3. pay money into court in lieu of bail; the legal practitioner is liable to committal.
      • Part 53 deals with committal orders.

Execution, etc., of warrant of arrest

70.12

1. A warrant of arrest is valid for 12 months beginning with the date of its issue.
2. A warrant of arrest may be executed only by the marshal.
3. A warrant of arrest may not be executed until an undertaking to pay on demand —
   1. the fees of the marshal; and
   2. all expenses incurred by the marshal in respect of the arrest of the property and the care and custody of it while under arrest; has been lodged in the marshal’s office.
4. A warrant of arrest may not be executed if the party at whose instance it was issued lodges a written request to that effect with the marshal.
5. The general rule is that a warrant of arrest must be served on the property against which it is  issued.
6. However, a warrant of arrest issued against freight may be executed by serving the warrant on the cargo in respect of which the freight is payable or on the ship in which that cargo was carried or on both of them.
7. Within 7 days after the service of a warrant of arrest, the warrant must be filed.

Directions with respect to property under arrest

70.13

1. The marshal may at any time apply to the court for directions with respect to property under arrest in any proceedings.
2. The marshal may, and if the court so directs must, give notice of the application under paragraph (1) to any or all of the persons referred to in paragraph (3).
3. The marshal must send by post a copy of any order made on an application under paragraph (1) to all those persons who, in relation to that property, have –
   1. acknowledged issue or service of the claim form in any claim in which the property is under arrest;
   2. caused a warrant for the arrest of the property to be executed by the marshal;
   3. entered a caveat which is still in force; or
   4. intervened in any claim in which the property is under arrest
4. A person other than the marshal may make an application under this rule.
5. The application together with copies of any affidavits in support must be served upon the marshal and all persons referred to in paragraph (3) unless the court otherwise orders.
6. An application for an order dispensing with service may be made without notice.

Release of property under arrest

70.14

1. Except where property arrested in pursuance of a warrant of arrest is sold under an order of the court, such property may only be released under the authority of a release in the appropriate practice form.
2. A release may not be issued with respect to property as to which a caveat against release is in force, unless –
   1. at the time of the issue of the release the property is under arrest in one or more other proceedings; or
   2. the court so orders.
3. A release may be issued at the instance of any party to the claim in which the warrant of arrest was issued if  –
   1. the court so orders; or
   2. subject to paragraph (2), if all the other parties, except a defen­dant who has not acknowledged issue or service of the claim form, consent.
4. Before a release is issued, the party applying for its issue must, unless paragraph (2)(a) applies, give notice to any person at whose instance a subsisting caveat against release has been entered, or to that person’s legal practitioner, requiring the caveat to be with­drawn.
5. Before property under arrest is released in compliance with a release issued under this rule, the party at whose instance it was issued must, in accordance with the directions of the marshal, either –
   1. pay the fees of the marshal already incurred and lodge in the marshal’s office an undertaking to pay on demand the other fees and expenses in connection with the arrest of the property and the care and custody of it while under arrest and of its release; or
   2. lodge in the marshal’s office an undertaking to pay on demand all such fees and expenses, whether incurred or to be incurred.
6. The court, on the application of any party who objects to directions given to that party by the marshal under paragraph (5), may vary or revoke the directions.

Caveat against release, etc.

70.15

1. A person –
   1. claiming to have a right to claim in rem against any property which is under arrest or the proceeds of sale thereof; and
   2. who wishes to be served with notice of any application to the court in respect of that property or those proceeds; must file a request in the appropriate practice form.
2. On the filing of a request under paragraph (1) the court office must enter a caveat in the caveat book.
3. If the release of any property under arrest is delayed by the entry of a caveat under this rule, any person having an interest in that property may apply to the court for an order requiring the person who procured the entry of the caveat to pay to the applicant damages in respect of the loss suffered by the applicant by reason of the delay.
4. On hearing an application under paragraph (3) the court, unless it is satisfied that the person procuring the entry of the caveat had a good and sufficient reason for so doing, may make an order accordingly.
5. If the court makes an order under paragraph (4), it must decide who should pay the costs of the application and assess the costs in accord­ance with rule 65.11.

Duration of caveats

70.16

1. A caveat entered in the caveat book is valid for 12 months beginning with the date of its entry.
2. The person at whose instance a caveat was entered may withdraw it by filing a request in the appropriate practice form.
3. The period of validity of a caveat may not be extended, but this provision is not to be taken as preventing the entry of successive caveats.

Bail     

70.17

1. Unless a ship or aircraft has been arrested in respect of a claim under rule 70.2(q) or (s), the court must permit the release of a ship or aircraft which has been arrested upon sufficient bail being provided.
2. If a ship or aircraft has been arrested in respect of a claim under rules 70.2(q) or (s), the court may –
   1. permit the person in possession of the ship or aircraft to continue trading upon such person providing sufficient bail; or
   2. deal otherwise with the operation of the ship or aircraft during the period of arrest.
3. In default of agreement between the parties as to the amount of bail, the court must determine the nature and amount of such bail.
4. Bail on behalf of a party to a claim in rem may be given by–
   1. bond in the appropriate practice form; or
   2. a bank guarantee or other security from a reputable financial institution acceptable to the marshal.
5. Sureties to a bond must enter into the bond before a commissioner for oaths or justice of the peace, not being a commissioner who, or whose partner or associate, is acting as legal practitioner or agent for the party on whose behalf the bail is to be given.
6. Subject to paragraph (7), a surety to a bail bond must make an affidavit stating that the surety is able to pay the sum for which the bond is given.
7. If a corporation is a surety to a bail bond given on behalf of a party, no affidavit need be made under paragraph (6) on behalf of the corporation unless the opposite party requires it, but where such an affidavit is required it must be made by a director, manager, secretary or other similar officer of the corporation.
8. The party on whose behalf bail is given must serve on the opposite party a notice of bail containing the names and addresses of the persons who have given bail on that party’s behalf and of the commis­sioner for oaths or justice of the peace before whom the bail bond was entered into.
9. After the expiration of 24 hours from the service of the notice (or sooner with the consent of the opposite party) the party on whose behalf bail is given may file the bond and must at the same time file –
   1. the affidavits (if any) made under paragraph (6); and
   2. an affidavit proving due service of the notice of bail to which a copy of that notice must be exhibited.

Intervenors

70.18

1. If property against which a claim in rem is brought is under arrest or money representing the proceeds of sale of that property is in court, a person who has an interest in that property or money but who is not a defendant to the proceedings may, with the permission of the court, intervene in the proceedings.
2. An application for permission may be made without notice.

Preliminary acts

70.19

(1) This rule deals with proceedings relating to damage, loss of life or personal injury arising out of a collision between ships.

(2) The following provisions apply unless the court otherwise orders.

(3) The claimant must within 2 months after service of the claim form on any defendant and the defendant must within 2 months of acknowledging issue or service of the claim file in the court office a document in 2 parts (in these Rules referred to as a ” preliminary act”) containing a statement of the following –

Part One

(a) the names of the ships which came into collision and their ports of registry;

(b) the length, breadth, gross tonnage, horsepower and draught at the material time of the ship and the nature and tonnage of any cargo carried by the ship;

(c) the date and time (including the time zone) of the collision;

(d) the place of the collision;

(e) the direction and force of the wind;

(f) the state of the weather;

(g) the state, direction and force of the tidal or other current;

(h)the position, the course steered and speed through the water of the ship when the other ship was first seen or immediately before any measures were taken with reference to her presence, whichever was the earlier;

(i) the lights or shapes (if any) carried by the ship;

(j) (i) the distance and bearing of the other ship if and when her echo was first observed by radar;

(ii) the distance, bearing and approximate heading of the other ship when first seen;

(k) what lights or shapes or combinations of lights or shapes (if any) of the other ship were first seen;

(l) what other lights or shapes or combinations of lights or shapes(if any) of the other ship were subsequently seen before the collision,and when;

(m) what alterations (if any) were made to the course and speed of the ship after the earlier of the two times referred to in article (h) up to the time of the collision, and when, and what measures (if any) other than alterations of course or speed, were taken to avoid the collision, and when;

(n) the heading of the ship, the parts of each ship which first came into contact and the approximate angle between the two ships at the moment of contact, what light or shape or combination of lights or shapes (if any) of the other ship was first seen;

(o) what sound signals (if any) were given, and when; and

(p) what sound signals (if any) were heard from the other ship, and when.

and

Part Two

(a) a statement that the particulars in Part One are incorporated in Part Two;

(b) any other facts and matters upon which the party filing the preliminary act relies;

(c) all allegations of negligence or other fault which the party filing the preliminary act makes;

and

(d) the remedy or relief which the party filing the preliminary act claims.

(4) Part Two of the preliminary act shall be deemed to be the statement of claim of the person filing the preliminary act including, in the case of the defendant, a counterclaim, and rules 8.4 to 8.8 and 10.5 to 10.8 apply to it save insofar as this rule and rule 70.21 provide otherwise.

(5) The court may order that Part Two of the preliminary act need not be filed by the claimant or defendant and give directions for the further conduct of the proceedings.

(6)Every preliminary act must be sealed before filing and be filed in a sealed envelope which must not be opened except as provided in paragraph (8) or by order of the court.

(7) A claimant must serve notice of filing the preliminary act on every defendant who acknowledges issue or service of the claim within 3 days of receiving notice of that acknowledgment or upon filing the preliminary act, whichever is the later. A defendant must, upon filing the preliminary act, serve notice that the defendant has done so on the claimant and on every other defendant who has acknowledged issue or service of the claim.

(8) Any party may inspect and bespeak a copy of the preliminary act of any other party upon filing a consent signed by that other party or its legal practitioner.

(9) Within 14 days after the last preliminary act in the proceedings is filed each party must serve on every other party a copy of its preliminary act.

(10) At any time after all preliminary acts have been filed any party may apply to the court for an order that –

(a) one or more parties file a schedule of the damages claimed by them and serve a copy thereof on every other party; and

(b) the damages be assessed prior to or at the trial on liability.

(11) Wherever practicable such an application must be dealt with at the case management conference.

Failure to file preliminary act: proceedings against party in default

70.20

(1) If in a claim covered by rule 70.19 (1) the claimant fails to file a preliminary act within the prescribed period –

(a) any defendant who has filed such an act may apply to the court for an order to dismiss the proceedings; and

(b) the court may –

(i) dismiss the proceedings; or

(ii) make such other order on such terms as it thinks fit.

(2) If in a claim in personam covered by rule 70.19 (1) a defendant fails to file a preliminary act within the prescribed period, Part 12 applies as if the defendant’s failure to file the preliminary act within that period were a failure to file a defence on the claimant within the period fixed for service of the defence, and the claimant, if it has filed a preliminary act may, subject to rule 12.3(1)(b), enter judgment against that defendant.

•Rule 12.3(1)(b) deals with default judgment in proceedings against a State.

(3) If in a claim in rem within rule 70.19(1) a defendant fails to file a preliminary act within the prescribed period, the claimant, if the claimant has filed such an act –

(a) may apply to the court for judgment against that defendant; and

(b) need not file or serve a statement of case or an affidavit before the hearing.

(4) On the hearing of an application under paragraph (3), if –

(a) the defendant does not appear at the hearing; and

(b) the court is of the opinion that judgment should be given for the claimant provided the claimant proves the claimant’s case;

it must order the claimant’s preliminary act to be opened and require the claimant to satisfy the court that the claim is well founded.