Восстановление разбирательства

Recovery Proceedings by Banks and Financial Institutions before the Debts Recovery Tribunals

Восстановление разбирательства

The Debts Recovery Tribunals (DRTs) and the Debts Recovery Appellate Tribunals (DRATs) are statutory bodies, established by the Government of India for the expeditious adjudication and recovery of debts due to banks and financial institutions.

The DRTs are governed by the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Debts Recovery Tribunal (Procedure) Rules, 1993.

The DRTs are functioning under the Ministry of Finance and concerned High Court of the state has a supervisory jurisdiction.

When a Bank or a financial institution has to recover any debt from any person, it can file an application before the Debts Recovery Tribunal for recovery against such person.

However, with the passage of time, the Debts Recovery Tribunal now deals with two different Acts, namely the Recovery of Debts Due to Banks and Financial Institutions (RDDBFI) Act, 1993 as well as the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interests (SARFAESI) Act, 2002.

Under the RDDBFI Act, 1993, banks and financial institution approaches DRT whereas, under SARFAESI Act, 2002, borrowers, guarantors, and other any other person aggrieved by any action of the bank or financial institution, can approach the DRT.

Pecuniary Jurisdiction:

An Application for recovery before the DRT could be filed, where the debt due to bank or financial institution or to a consortium of banks or financial institutions from the borrower is more than Rs.10 lakhs.

Composition of the Tribunal:

Each Debts Recovery Tribunal (DRT) is presided over by a Presiding Officer. The Presiding Officer is generally equivalent to the rank of District& Sessions Judge.

Each Debt Recovery Tribunal also has two Recovery Officers who helps in executing the recovery Certificates as passed by the Presiding Officers.

The DRATs are presided over by the Chairperson. A person qualified to be a judge of the High Court or who has been a Member of the Indian Legal Service and has held a post in Grade-I of the service for at least three years or who has held the post of Presiding Officer of DRT for a minimum period of three years can be appointed as the Chairperson of DRAT.

Recovery Proceedings before DRT:

The aggrieved bank has to file an application before the tribunal for recovery of its dues. The applicant bank is also required to file proof affidavit and loan documents and statements of account before the DRT. Thereafter, the DRT issue summons to the defendant (Bank Borrower) to show cause within 30 days, why action should not be taken against them to recover the Bank’s dues.

If notice could not be served upon the defendant, for any reason, the DRT would publish the notice against the defendant in the newspapers. If the defendant does not appear before the Tribunal at the time and date mentioned in the notice served to them, then the DRT would pass ex-parte order against the defendant.

In case the defendant appears before the Tribunal and files the written statement of defense, setoff or counterclaim wherever necessary.

The Tribunal has the authority to pass an interim order against the Defendant to prevent him from alienating and or disposing off his property.

Defendant may also be asked to furnish security sufficient to satisfy the certificate of recovery.

Since the Tribunal is free from the trappings of a civil court it can pass any kind of order whether interim or final to fulfill the object of the Act.

Once the stage of pleadings is complete, arguments would be heard and orders passed. On receipt of order in its favor, the applicant bank has to file an application before the DRT for ‘Recovery Certificate’.

The Recovery Officer issue notice to the defaulters and demands them to clear the dues as per the Recovery Certificate issued by the DRT within 15 days from the date of the notice.

On default of payment within the notice period, the Recovery Officer shall, proceed to recover the amount of debt specified in the certificate by one or more of the following modes, namely:-

  1. Attachment and sale of the movable or immovable property of the defendant;
  2. Arrest of the defendant and his detention in prison;
  3. Appointing a receiver for the management of the movable or immovable properties of the defendant.

Appellate Authority:

Debt Recovery Appellate Tribunal (DRAT) is the appellate authority to hear and dispose of appeals arising the decisions of the DRTs.

Any party aggrieved by the order of the DRT, can appeal before the DRAT, within 45 days of receiving the orders of the DRT.

Before filing an appeal before the DRAT, the borrower has to deposit 75% of the amount which is due from him to the Bank or financial institution, however, the Appellate Tribunal has got the powers to reduce or waive this amount.

An appeal against the order of the Appellate Tribunal can be entertained by the High Court, on fulfillment of condition precedent of deposit.


– As on 1st July 2019

Источник: http://www.indialawoffices.com/knowledge-centre/recovery-proceedings-by-banks-and-financial-institutions-before-the-debts-recovery-tribunals

Established rodent community delays recovery of dominant competitor following experimental disturbance

Восстановление разбирательства

Open AccessResearch articles

Published:11 December 2019https://doi.org/10.1098/rspb.2019.2269

Abstract

Human activities alter processes that control local biodiversity, causing changes in the abundance and identity of species in ecosystems. However, restoring biodiversity to a previous state is rarely as simple as reintroducing lost species or restoring processes to their pre-disturbance state.

Theory suggests that established species can impede shifts in species composition via a variety of mechanisms, including direct interference, pre-empting resources or habitat alteration. These mechanisms can create transitory dynamics that delay convergence to an expected end state.

We use an experimental manipulation of a desert rodent community to examine differences in recolonization dynamics of a dominant competitor (kangaroo rats of the genus Dipodomys) when patches were already occupied by an existing rodent community relative to when patches were empty.

Recovery of kangaroo rat populations was slow on plots with an established community, taking approximately 2 years, in contrast with rapid recovery on empty plots with no established residents (approx. three months).

These results demonstrate that the presence of an established alternate community inhibits recolonization by new species, even those that should be dominant in the community. This has important implications for understanding how biodiversity may change in the future, and what processes may slow or prevent this change.

Electronic supplementary material is available online at https://doi.org/10.6084/m9.figshare.c.4746575.

References

  • 1. Dornelas M, Gotelli NJ, McGill B, Shimadzu H, Moyes F, Sievers C, Magurran AE. 2014Assemblage time series reveal biodiversity change but not systematic loss. Science344, 296-299. (doi:10.1126/science.1248484) Crossref, PubMed, ISI, Google Scholar
  • 2. Hillebrand H, Bennett DM, Cadotte MW. 2008Consequences of dominance: a review of evenness effects on local and regional ecosystem processes. Ecology89, 1510-1520. (doi:10.1890/07-1053.1) Crossref, PubMed, ISI, Google Scholar
  • 3. McGill BJ, Dornelas M, Gotelli NJ, Magurran AE. 2015Fifteen forms of biodiversity trend in the Anthropocene. Trends Ecol. Evol.30, 104-113. (doi:10.1016/j.tree.2014.11.006) Crossref, PubMed, ISI, Google Scholar
  • 4. Leibold MAet al.. 2004The metacommunity concept: a framework for multi-scale community ecology. Ecol. Lett.7, 601-613. (doi:10.1111/j.1461-0248.2004.00608.x) Crossref, ISI, Google Scholar
  • 5. Chase JM, Leibold MA. 2003Ecological niches: linking classical and contemporary approaches. Chicago, IL: University of Chicago Press. Crossref, Google Scholar
  • 6. Chesson P. 2000Mechanisms of maintenance of species diversity. Annu. Rev. Ecol. Syst.31, 343-366. (doi:10.1146/annurev.ecolsys.31.1.343) Crossref, Google Scholar
  • 7. Niehaus AC, Angilletta MJ, Sears MW, Franklin CE, Wilson RS. 2012Predicting the physiological performance of ectotherms in fluctuating thermal environments. J. Exp. Biol.215, 694-701. (doi:10.1242/jeb.058032) Crossref, PubMed, ISI, Google Scholar
  • 8. Sears MW. 2005Geographic variation in the life history of the sagebrush lizard: the role of thermal constraints on activity. Oecologia143, 25-36. (doi:10.1007/s00442-004-1767-0) Crossref, PubMed, ISI, Google Scholar
  • 9. Davis AJ, Lawton JH, Shorrocks B, Jenkinson LS. 1998Individualistic species responses invalidate simple physiological models of community dynamics under global environmental change. J. Anim. Ecol.67, 600-612. (doi:10.1046/j.1365-2656.1998.00223.x) Crossref, ISI, Google Scholar
  • 10. Gaston KJ, Blackburn TM, Goldewijk KK. 2003Habitat conversion and global avian biodiversity loss. Proc. R. Soc. Lond. B270, 1293-1300. (doi:10.1098/rspb.2002.2303) Link, ISI, Google Scholar
  • 11. Haddad NMet al.. 2015Habitat fragmentation and its lasting impact on Earth's ecosystems. Sci. Adv.1, e1500052. (doi:10.1126/sciadv.1500052) Crossref, PubMed, ISI, Google Scholar
  • 12. McGeoch MA, Butchart SHM, Spear D, Marais E, Kleynhans EJ, Symes A, Chanson J, Hoffmann M. 2010Global indicators of biological invasion: species numbers, biodiversity impact and policy responses. Divers. Distrib.16, 95-108. (doi:10.1111/j.1472-4642.2009.00633.x) Crossref, ISI, Google Scholar
  • 13. Tilman D. 1982Resource competition and community structure. Princeton, NJ: Princeton University Press. Google Scholar
  • 14. Hastings Aet al.. 2018Transient phenomena in ecology. Science361, eaat6412. (doi:10.1126/science.aat6412) Crossref, PubMed, ISI, Google Scholar
  • 15. Neubert MG, Caswell H. 1997Alternatives to resilience for measuring the responses of ecological systems to perturbations. Ecology78, 653-665. (doi:10.1890/0012-9658(1997)078[0653:ATRFMT]2.0.CO;2) Crossref, ISI, Google Scholar
  • 16. Noonburg EG, Abrams PA. 2005Transient dynamics limit the effectiveness of keystone predation in bringing about coexistence. Am. Nat.165, 322-335. (doi:10.1086/428068) Crossref, PubMed, ISI, Google Scholar
  • 17. Steiner CF, Klausmeier CA, Litchman E. 2012Transient dynamics and the destabilizing effects of prey heterogeneity. Ecology93, 632-644. (doi:10.1890/10-2320.1) Crossref, PubMed, ISI, Google Scholar
  • 18. Suding KN, Gross KL, Houseman GR. 2004Alternative states and positive feedbacks in restoration ecology. Trends Ecol. Evol.19, 46-53. (doi:10.1016/j.tree.2003.10.005) Crossref, PubMed, ISI, Google Scholar
  • 19. Levine JM, Adler PB, Yelenik SG. 2004A meta-analysis of biotic resistance to exotic plant invasions. Ecol. Lett.7, 975-989. (doi:10.1111/j.1461-0248.2004.00657.x) Crossref, ISI, Google Scholar
  • 20. Amarasekare P. 2002Interference competition and species coexistence. Proc. R. Soc. Lond. B269, 2541-2550. (doi:10.1098/rspb.2002.2181) Link, ISI, Google Scholar
  • 21. Jones CG, Lawton JH, Shachak M. 1997Positive and negative effects of organisms as physical ecosystem engineers. Ecology78, 1946-1957. (doi:10.1890/0012-9658(1997)078[1946:paneoo]2.0.co;2) Crossref, ISI, Google Scholar
  • 22. Heske EJ, Brown JH, Guo Q. 1993Effects of kangaroo rat exclusion on vegetation structure and plant species diversity in the Chihuahuan Desert. Oecologia95, 520-524. (doi:10.1007/BF00317436) Crossref, PubMed, ISI, Google Scholar
  • 23. Samson DA, Philippi TE, Davidson DW. 1992Granivory and competition as determinants of annual plant diversity in the Chihuahuan Desert. Oikos65, 61-80. (doi:10.2307/3544888) Crossref, ISI, Google Scholar
  • 24. Ernest SKMet al.. 2016Long-term monitoring and experimental manipulation of a Chihuahuan desert ecosystem near Portal, Arizona (1977–2013). Ecology97, 1082. (doi:10.1890/15-2115.1) Crossref, PubMed, Google Scholar
  • 25. Christensen EM, Ernest SKM, Simpson G. 2019emchristensen/PlotSwitch: revision: population models. Zenodo. (doi:10.5281/zenodo.3460769) Google Scholar
  • 26. Wood SN. 2011Fast stable restricted maximum lihood and marginal lihood estimation of semiparametric generalized linear models. J. R. Stat. Soc.: Ser. B (Stat. Methodol.)73, 3-36. (doi:10.1111/j.1467-9868.2010.00749.x) Crossref, Google Scholar
  • 27. R Core Team. 2018R: alanguage and environment for statistical computing. Vienna, Austria: R Foundation for Statistical Computing. See https://www.R-project.org/. Google Scholar
  • 28. Padfield D, Buckling A, Warfield R, Lowe C, Yvon-Durocher G. 2018Linking phytoplankton community metabolism to the individual size distribution. Ecol. Lett.21, 1152-1161. (doi:10.1111/ele.13082) Crossref, PubMed, ISI, Google Scholar
  • 29. White EP, Ernest SKM, Thibault KM, Loreau AEM. 2004Trade-offs in community properties through time in a desert rodent community. Am. Nat.164, 670-676. (doi:10.1086/424766) Crossref, PubMed, ISI, Google Scholar
  • 30. Brown JH, Gillooly JF, Allen AP, Savage VM, West GB. 2004Toward a metabolic theory of ecology. Ecology85, 1771-1789. (doi:10.1890/[email protected]/(ISSN)1939-9170.MacArthurAward) Crossref, ISI, Google Scholar
  • 31. Oksanen Jet al.. 2018vegan: community ecology package. See https://CRAN.R-project.org/package=vegan. Google Scholar
  • 32. Laake J. 2013RMark: an R interface for analysis of capture-recapture data with MARK., 25. See http://www.afsc.noaa.gov/Publications/ProcRpt/PR2013-01.pdf. Google Scholar
  • 33. White GC, Burnham KP. 1999Program MARK: survival estimation from populations of marked animals. Bird Study46, S120-S139. (doi:10.1080/00063659909477239) Crossref, ISI, Google Scholar
  • 34. Caswell H. 2019Transient population dynamics. In Sensitivity analysis: matrix methods in demography and ecology (ed. Caswell H), pp. 141-158. Cham, Switzerland: Springer International Publishing. Google Scholar
  • 35. Reichman OJ, Price MV. 1993Ecological aspects of heteromyid foraging. In Biology of the Heteromyidae (eds Genoways HH, Brown JH), pp. 539-574. Shippensburg, PA: American Society of Mammalogists. Google Scholar
  • 36. Leaver LA, Daly M. 2001Food caching and differential cache pilferage: a field study of coexistence of sympatric kangaroo rats and pocket mice. Oecologia128, 577-584. (doi:10.1007/s004420100686) Crossref, PubMed, ISI, Google Scholar
  • 37. Rosenzweig ML, Winakur J. 1969Population ecology of desert rodent communities: habitats and environmental complexity. Ecology50, 558-572. (doi:10.2307/1936246) Crossref, ISI, Google Scholar
  • 38. Reichman OJ. 1975Relation of desert rodent diets to available resources. J. Mammal.56, 731-751. (doi:10.2307/1379649) Crossref, ISI, Google Scholar
  • 39. Swartz MJ, Jenkins SH, Dochtermann NA. 2010Coexisting desert rodents differ in selection of microhabitats for cache placement and pilferage. J. Mammal.91, 1261-1268. (doi:10.1644/09-MAMM-A-280.1) Crossref, ISI, Google Scholar
  • 40. Hastings A. 2004Transients: the key to long-term ecological understanding?Trends Ecol. Evol.19, 39-45. (doi:10.1016/j.tree.2003.09.007) Crossref, PubMed, ISI, Google Scholar
  • 41. Koons DN, Grand JB, Zinner B, Rockwell RF. 2005Transient population dynamics: relations to life history and initial population state. Ecol. Modell.185, 283-297. (doi:10.1016/j.ecolmodel.2004.12.011) Crossref, ISI, Google Scholar
  • 42. Christensen EM, Harris DJ, Ernest SKM. 2018Long-term community change through multiple rapid transitions in a desert rodent community. Ecology99, 1523-1529. (doi:10.1002/ecy.2373) Crossref, PubMed, ISI, Google Scholar
  • 43. Turner MG. 2010Disturbance and landscape dynamics in a changing world. Ecology91, 2833-2849. (doi:10.1890/10-0097.1) Crossref, PubMed, ISI, Google Scholar
  • 44. Smith MD. 2011The ecological role of climate extremes: current understanding and future prospects. J. Ecol.99, 651-655. (doi:10.1111/j.1365-2745.2011.01833.x) Crossref, ISI, Google Scholar
  • 45. Ezard THG, Bullock JM, Dalgleish HJ, Millon A, Pelletier F, Ozgul A, Koons DN. 2010Matrix models for a changeable world: the importance of transient dynamics in population management: transient dynamics and population management. J. Appl. Ecol.47, 515-523. (doi:10.1111/j.1365-2664.2010.01801.x) Crossref, ISI, Google Scholar

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Источник: https://royalsocietypublishing.org/doi/abs/10.1098/rspb.2019.2269

Recovery proceedings under ABWOR needing our prior authority – Scottish Legal Aid Board

Восстановление разбирательства

ABWOR can be made available in relation to proceedings for the recovery of sensitive documents.
Recovery proceedings are defined as proceedings relating to an application for an order for recovery of documents, where:

  • The documents sought include medical or other sensitive documents relating to your client
  • The application has been intimated to your client
  • Your client wishes to oppose recovery of the documents on the basis that the granting of the order would infringe their rights [Article 8 of the European Convention on Human Rights]

There is no financial eligibility test and no liability for a contribution. However, ABWOR in recovery proceedings may only be made available if we are satisfied that:

  • ABWOR is required to allow your client to participate effectively in the proceedings
  • You have received our prior approval

If ABWOR is not available or an application is refused, advice and assistance may still be made available to a client if they are financially eligible. Your client may be liable for a contribution.

Although the ABWOR which is available is criminal ABWOR, if you are registered to provide criminal, civil or children’s legal assistance you can still undertake the work.

In addition, solicitors who are not on these registers can also undertake this work, and should contact our Receipts and Payments section on 0131 226 1968 to obtain authorisation to apply for ABWOR for these cases.

The qualifying conditions are that:

  • The proceedings are criminal proceedings in which an application has been made for recovery of documents by commission and diligence
  • The documents sought include medical or sensitive documents relating to the client who is seeking to oppose
  • The application has been intimated to the client
  • The opposition is on the basis of infringement of the Article 8 right to respect for private and family life

The category code ORD should be used in all applications for the recovery proceedings.

When making an ABWOR application on LAOL, you should select the ORD category. No financial details will be required. You will simply be asked to answer the effective participation questions.

The advice and assistance initial limit of expenditure is £35.

The initial limit of expenditure under ABWOR is £150.

If you intend to provide advice only you should provide your client’s financial details. If your client is financially eligible the initial limit of authorised expenditure will be £35. Any application for an increase to that initial sum should be submitted in the usual way.

We require to be satisfied that legal representation is required to allow your client to participate effectively in the proceedings [regulation 13(3B) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003].

When making an application using legal aid online, you should provide:

  • A copy of the application for the approval of specification of documents/commission and diligence
  • The interlocutor appointing intimation

When determining whether legal representation is required to allow your client to participate effectively, we will consider:

  • The complexity of the case, including the existence and difficulty of any points of law in issue
  • The nature of the issues involved
  • The ability of your client to consider and challenge any document or information in the proceedings without your assistance
  • The ability of your client to present his or her views in an effective manner without your assistance

You should be mindful of the following issues if you do not provide ABWOR on a regular basis.

ABWOR for recovery proceedings are subject to the following conditions:

  • You must apply for an increase in authorised expenditure if it is ly that you will exceed the initial limit, this cannot be done retrospectively
  • There is no scope for payment for any work undertaken prior to us granting an ABWOR application
  • Payment can only be made for work that is actually, necessarily and reasonably undertaken with due regard for economy
  • The work constitutes criminal ABWOR and sums payable by way of fees and outlays shall be calculated on that basis

ABWOR proceedings needing our prior authority

Источник: https://www.slab.org.uk/guidance/recovery-of-sensitive-documents/

PG&E loses exclusive control of its bankruptcy recovery plan

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California power giant PG&E Corp. was stripped of its right to exclusively pitch a reorganization plan in court, escalating an already heated battle over the largest utility bankruptcy in U.S. history. The shares dropped more than 25% in after-hours trading.

U.S. Bankruptcy Judge Dennis Montali said he’ll allow bondholders including Pacific Investment Management Co. and Elliott Management Corp.

to pitch their own restructuring plan alongside PG&E’s, so they can both come up with ways the utility could deal with an estimated $30 billion in wildfire liabilities.

The damages, tied to blazes that its equipment ignited, forced the utility to file for Chapter 11 in January.

It’s the latest twist in a massive bankruptcy case that has already attracted some of the biggest names in the financial world. A group led by Pimco and Elliott has come up with a plan that would all but wipe out the stake of current shareholders in the utility.

Separately, PG&E’s Pacific Gas & Electric Co. shut off power to hundreds of thousands of homes and businesses Wednesday to avert wildfires in Northern and Central California.

The creditors, including the fire victims, have “spoken loudly and clearly that they want their” proposal to be considered, Montali said in his ruling. While PG&E’s plan is “on track as well as can be expected,” he wrote, so is the competing version from creditors.

“One plan emerging as confirmable is a very acceptable outcome,” Montali wrote. “And if both plans pass muster, the voters will make their choice or leave the court with the task of picking one of them.”

The court denied requests by other parties to let them offer recovery plans too.

PG&E issued a statement expressing confidence that its reorganization plan “is the better solution for all constituencies and will be confirmed.”

“We are disappointed that the Bankruptcy Court has opened the door to consideration of a plan designed to unjustly enrich Elliott and the other ad hoc bondholders and seize control of PG&E at a substantial discount,” the company said.

Under bankruptcy law, a company has a limited amount of time to develop a reorganization plan and persuade creditors to vote in favor of it. Initially, no other competing proposals are allowed, so the bondholders needed permission from Montali before they could proceed. It’s unusual for a bankruptcy judge to grant such a request.

PG&E filed for bankruptcy on Jan. 29 to address liabilities resulting from a string of devastating fires that tore through Northern California in 2017 and 2018. The effects have been rippling through millions of ratepayers, hundreds of creditors, thousands of workers and the state’s political system.

The company has argued that ending its exclusive control before the company figures out its exact wildfire liabilities would “lead to further distraction, costs and waste” and would jeopardize the company’s chances of exiting bankruptcy by June, a deadline set by the state.

The San Francisco utility previously said it has lined up $34 billion in debt financing for a reorganization. The company has also received more than $14 billion in equity commitments. It has blasted the plan by Elliott and Pimco, saying it would lead to an “unjustified windfall” of billions of dollars for creditors at the expense of shareholders and utility customers.

Note holders, meanwhile, said their efforts wouldn’t delay the bankruptcy case. They’ve joined forces with wildfire victims to pitch a plan that would pay out $25.5 billion to victims and their insurers. Their campaign to end PG&E’s exclusive control was supported by the official committee of unsecured creditors, labor unions and fire victims.

Montali had ruled in August that PG&E should retain exclusive control over its restructuring and said last week that the group led by Pimco and Elliott would have to explain “what has changed in such a short period of time to justify reversing course.”

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Источник: https://www.latimes.com/business/story/2019-10-09/pge-bankruptcy-reorganization-plan-judge

PRACTICE DIRECTION – CIVIL RECOVERY PROCEEDINGS

Восстановление разбирательства

There will be kept in the Central Office of the Senior Courts at the Royal Courts of Justice, under the direction of the Senior Master, a register of external orders which the High Court has ordered to be registered.

7D.1

An application for a prohibition order must be made—

(1) to a High Court judge; and

(2) in accordance with CPR Part 23.

7D.2

CPR rule 23.10(2), Section I of CPR Part 25 and Practice Direction 25A do not apply to applications for property freezing orders, interim receiving orders and management receiving orders.

7D.3

The application may be made without notice in the circumstances set out article 141E(1) of the Order in Council (in the case of an application for a prohibition order).

7D.4

An application for a prohibition order must be supported by written evidence which must confirm that—

(1) it is relevant property identified in an external request, and

(2) proceedings have not been taken in relation to the property under Chapter 2 of Part 5 of the Order in Council.

7D.5

CPR Part 69 (court’s power to appoint a receiver) and Practice Direction 69 apply to an application for a management receiving order with the following modifications—

(1) paragraph 2.1 of Practice Direction 69 does not apply; and

(2) the enforcement authority’s written evidence must always identify a nominee and include the information in paragraph 4.2 of that Practice Direction.

7E.1

When the court makes a prohibition order on an application without notice, it will normally make an initial exclusion from the order for the purpose of enabling the respondent to meet their reasonable legal costs so that they may—

(1) take advice in relation to the order;

(2) prepare a statement of assets in accordance with paragraph 7A.3; and

(3) if so advised, apply for the order to be varied or set aside.

The total amount specified in the initial exclusion will not normally exceed £3,000.

7E.2

When it makes a prohibition order, the court may also make an exclusion to enable the respondent to meet their reasonable legal costs so that (for example) when the claim is commenced—

(1) the respondent may file an acknowledgment of service and any written evidence on which they intend to rely; or

(2) the respondent may apply for a further exclusion for the purpose of enabling them to meet their reasonable costs of the proceedings.

7E.3

Paragraph 7H contains general provisions about exclusions made for the purpose of enabling a person to meet their reasonable legal costs.

7F.1

An application for directions as to the exercise of the functions of the management receiver under article 141K of the Order in Council may be made at any time by –

(1) the receiver;

(2) any party to the proceedings; and

(3) any person affected by any action taken, or proposed to be taken, by the receiver.

7F.2

The application must always be made by application notice, which must be served on—

(1) the receiver (unless the receiver is the applicant);

(2) every party to the proceedings; and

(3) any other person who may be interested in the application.

7G.1

An application to vary or set aside a prohibition order (including an application for, or relating to, an exclusion from the order) may be made at any time by—

(1) the enforcement authority; or

(2) any person affected by the order.

7G.2

Unless the court otherwise directs or exceptional circumstances apply, a copy of the application notice must be served on—

(1) every party to the proceedings; and

(2) any other person who may be affected by the court’s decision.

7G.3

Before exercising the power to discharge or vary a prohibition order, the court must give an opportunity for the parties, and any other person who may be affected by the court’s decision, to be heard, in accordance with article 141E of the Order in Council.

7G.4

The evidence in support of an application for an exclusion from a prohibition order for the purpose of enabling a person to meet their reasonable legal costs must—

(1) contain full details of the stage or stages in proceedings under Part 4A of the Order in Council in respect of which the costs in question have been or will be incurred;

(2) include an estimate of the costs which the person has incurred and will incur in relation to each stage to which the application relates;

(3) include a statement of assets containing the information set out in paragraph 7A.3 (unless the person has previously filed such a statement in the same proceedings and there has been no material change in the facts set out in that statement);

(4) where the court has previously made an exclusion in respect of any stage to which the application relates, explain why the person’s costs will exceed the amount specified in the exclusion for that stage; and

(5) state whether the terms of the exclusion have been agreed with the enforcement authority.

7G.5

Where, under paragraph 7G.4(2), a person includes in evidence a statement of the costs which the person has incurred, paragraphs 9.5(2) and (3) of Practice Direction 44 apply.

7G.6

A Master or District Judge may, with the consent of all the parties, vary or discharge a prohibition order granted by any judge.

7H.1

Subject to paragraph 7H.2, when the court makes a prohibition order it will at the same time consider whether it is appropriate to make or vary an exclusion for the purpose of enabling any person affected by the order or directions to meet their reasonable legal costs.

7H.2

To enable the court to consider whether it is appropriate to make or vary an exclusion, the court may order a party to file an estimate of costs (unless the person has previously filed such an estimate in the same proceedings and there has been no material change in the facts set out in that estimate).

7H.3

The court will not make an exclusion for the purpose of enabling a person to meet their reasonable legal costs, other than an exclusion to meet the costs of taking any of the steps referred to in paragraph 7E.1, unless that person has made, served and filed a statement of assets.

7H.4

A statement of assets is a witness statement which sets out all the property which the maker of the statement owns, holds or controls, or in which  the maker of the statement has an interest, giving the value, location and details of all such property.

Information given in a statement of assets under this practice direction will be used only for the purpose of the prohibition order proceedings, or in support of an application for an exclusion from a property freezing order or interim receiving order for the purpose of enabling a person to meet their reasonable legal costs (see paragraph 7.3).

7H.5

The court—

(1) will not make an exclusion for the purpose of enabling a person to meet their reasonable legal costs (including an initial exclusion under paragraph 7E.1); and

(2) may set aside any exclusion which it has made for that purpose or reduce any amount specified in such an exclusion,
if it is satisfied that the person has property to which the prohibition order does not apply from which the person may meet those costs.

7H.6

The court will normally refer to a costs judge any question relating to the amount which an exclusion should allow for reasonable legal costs in respect of proceedings or a stage in proceedings.

7H.7

Attention is drawn to article 141G of the Order in Council (in relation to exclusions from prohibition orders). An exclusion for the purpose of enabling a person to meet their reasonable legal costs must be made subject to the ‘required conditions’ specified in Part 2 of the Regulations.

7H.8

An exclusion made for the purpose of enabling a person to meet their reasonable legal costs will specify the maximum amount which may be released in respect of legal costs.

7H.9

A person who becomes aware that their legal costs will exceed the maximum amount specified should apply for a further exclusion or a variation of the existing exclusion as soon as reasonably practicable.”.

Источник: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/civilrecovery_pd

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