Appendix 6
S.I. 2011/1734: memorandum from the Ministry of
Justice
Court Funds Rules 2011 (S.I. 2011/1734)
In its letter of 19 October 2011, the Committee sought
a memorandum on the following points:
(1) Explain -
(a) in what circumstances it is expected that
the provision in rule 10(b) is required to be relied upon, and
(b) why the provision is not specific in relation
to them, given that the rule imposes a duty.
(2) Explain -
(a) in what circumstances it is expected that
the provision in rule 34(d) is required to be relied upon,
(b) why the provision is not specific in relation
to them, given that the rule imposes a prohibition, and
(c) whether there is a missing "not"
before "to do so" in that provision.
(3) Explain to what extent, if any, rule 36(2)
is intended to be disapplied in cases to which rule 39(1) applies,
and how that intention is achieved.
Rule 10 Refusal to accept a deposit
Rule 10 provides that the Accountant General shall
refuse to accept a deposit if:
(a) the person requesting the deposit has not
complied with the Rules; or
(b) there is any other good reason to do so.
Paragraph (b) was included as a catch-all provision
to enable deposits to be refused where it is considered appropriate
to do so, for example, where there are questions as to the authenticity
of the deposit schedule or written request or doubts that the
money being deposited actually belongs to the person for whom
it would be held.
It would not be practical to draft a provision which
sets out every possible circumstance which might fall outside
obvious non-compliance with the Rules.
Rule 34 Refusal to make a payment
Rule 34 provides that the Accountant General may
not make a payment if:
(a) the identity or entitlement of a person claiming
to be entitled to a payment is in doubt;
(b) the request for payment is outside the scope
of a deputy's power;
(c) the person requesting the payment has not
complied with the Rules; or
(d) there is any other good reason to do so.
Like rule 10(b), paragraph (d) of rule 34 was included
as a catch-all provision to enable the Accountant General to refuse
to make a payment where he considered appropriate to do so, and
was drafted broadly for the same reason. Examples of where it
might be needed include where there are questions as to the authenticity
of the payment schedule or written request, doubt about whether
the bank account belongs to the payee (e.g. the payee is "Joanne
Smith" but the bank account is in the name of "J Smith"
or "J and K Smith"); or where there are insufficient
funds to make the payment or there is reason to believe that a
legal aid charge is outstanding,
Rule 34 was loosely based on rule 40(9) of the Court
Funds Rules 1987 (SI 1987/821 as amended) which allowed the Accountant
General to refuse to make a payment until he is satisfied as to
the identity and entitlement of any person claiming to be the
payee and, in relation to payments by BACS or international money
transfer, if the payment schedule is not completed with sufficient
information or for any other good reason.
We agree that there is a missing "not"
in subparagraph (d). The Ministry will consider how best to correct
that.
Rules 36 and 39 Unclaimed funds in court and
unclaimed county court money
Rule 36(2) provides that a fund in court shall be
treated as unclaimed if it has not been dealt with for a period
of ten years or the Accountant General is, at any time, satisfied
that all reasonable steps have been taken to trace the person
entitled to the fund in court and that person cannot be traced.
Rule 3 defines a fund in court as money, securities or effects
deposited in accordance with Part 2 of the Rules.
Rule 39(1) provides that money paid into a county
court other than under rule 8 may be treated as unclaimed
if it has not been dealt with for a period of one year immediately
before 1 March in any year. (Rule 8 deals with circumstances
where money may be paid into a county court and hence becomes
treated as a fund in court.) The money referred to rule 39 does
not fall within the definition of a fund in court (as defined
by rule 3) because the money is deposited with the Accountant
General under rule 39, not under Part 2 ,and so is therefore not
covered by rule 36 at all. There is therefore be no need expressly
to disapply rule 36(2) where rule 39(1) applies.
It may help the Committee to explain that rule 39
relates to payments that a county court collects on behalf of
judgment creditors, for example under an attachment of earnings
order, and then distributes to the creditors by cheque. The money
tends to become unclaimed where the cheque is returned to the
court because the creditor has moved and failed to provide the
court with updated contact details. The amounts are usually very
low (£10 or less). Except where they become unclaimed under
rule 39, the Court Funds Rules don't deal with these payments.
Ministry of Justice
24 October 2011
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