CIVIL PROCEDURE & PRACTICE I

Trinidad and Tobago Petty Civil Courts Act Chap. 4:21E. NEW TERMINOLOGY UNDER THE CPRex parte – without notice;to be served – with notice;leave – permission;liquidated sum – specified amount of moneydamages to be assessed – amount to be decided by courtpleadings – statements of case;subpoena – witness summons;plaintiff – claimant.

ORIGINATING PROCESSCLAIM FORM DOCUMENTS TO BE SERVED WITH CF: 8.15 (TT) Statement of Case;Documents claimant considers necessary to his case – 8.6 (2);In claims for personal injuries - schedule of special damages and medical report on which he will rely – 8.10;Acknowledgement of Service/Entry of Appearance;Application to pay by instalments;Defence form;Notes for the defendant;Copy of order made under rule 8.2 or 8.14

SPECIAL PROVISIONS RELATING TO FIXED DATE CLAIMS: TT - 8.1 (4); 1. Upon a fixed date claim being issued:Court must fix a date for the first hearing (before the judge to whom the matter was assigned);Court shall have all powers of CMC at hearing;Court may treat first hearing as the trial ifi. Claim is not defended;ii. Considers that claim be dealt with summarilyCourt must give at least 14 days notice of first hearing with discretion to give shorter period when appropriate.

SERVICEAREAS TO BE COVEREDPersonal ServiceAlternative ServiceSubstituted ServiceOrdinary Service

Service Out of the JurisdictionFundamental ConceptsJurisdiction of the CourtDiscretion of the CourtMethods of Service DocumentationA. PERSONAL SERVICEA. Documents of which Personal Service is required include the following:-(i) Claim form and Statement of Claim;(ii) Amended Writ of Summons without leave and before service unless Court otherwise directs;(iii) Claim form outside jurisdiction unless court otherwise directs;(iv) Third Party Notice to person not a party to the action;(v) Defence counterclaim against a person not a party to the action;(ix) Notice of Judgment or Order unless Court otherwise directs;(x) Notice of Motion for committal unless Court dispenses with service;(xi) Writ of Habeas Corpus where personal service possible.B. How EffectedTrinidad & Tobago Part 5.3 (i) By handing to and leaving with the person to be served a copy of such document; if he refuses to take the copy, by leaving it as near as possible within his possession and informing him at the same time of the contents thereof. If so requested by the person to be served, showing him at the time it is left the original in the case of originating process or the original or office copy in the case of any other document. Depending on jurisdiction, practice may vary to include specific directions regarding identifying person by claimant, by photograph and location of service.C. Exceptions to Personal Service apply where:- the defendant's attorney-at-law indorses on the claim form, a statement that he accepts service on behalf of the defendant - Pt 5.17;- in an action in respect of a contract, where the contract specifies the manner or place of service – 5.16;- the defendant enters an (unconditional) appearance/acknowledges service before service;- in an action for recovery of land, the Court authorises service to be effected by affixing a copy of the writ to some conspicuous part of the land;- service is effected in a foreign country in accordance with its laws – Pt 7.;- the document is required to be served on the State for the purpose or in connection with any civil proceedings;- service is effected by alternative service – Pt 5.13;- an order for substituted/specified service is made – Pt 5.12;Proof of Service: must be made by Affidavit of Service. This may now require 2 affidavits – 1 by the server and another by person who identified the defendant or verified his photograph or description: r 5.5 (2), (3). The person who put in the photograph must go on affidavit to verify how he knows that that is the correct person.See also Proof of Service in section 4 (infra).

B. SERVICE BY A SPECIFIED METHOD Trinidad & Tobago, - Pt 5.Service by a Specified Method: This is service on the defendant in a manner specified by the court in situations where it is difficult to locate the defendant or it is believed that the defendant is evading service. Once service is effected in the manner prescribed by the court it is deemed that service takes effect at the time prescribed - 5.141. Method of Application: In accordance with Part 11.2. Contents of Affidavit

I. Statement that a writ or other originating process (a copy of which is exhibited

II. of such and such date) has been duly issued;III. the specific efforts made at serving defendant personally stating them

withIV. great particularity and that all practicable means of effecting personal

service have been exhausted;V. that all practicable means of effecting personal service have been

exhausted, and where appropriate that prompt personal service is impracticable;

VI. that the substituted service (state the proposed substituted service) will probably come to the knowledge of the defendant;

VII. and if the defendant is evading service the affidavit should state the deponent's belief to the effect, giving the facts upon which such belief is based;

VIII. where service is to be effected within the jurisdiction, a statement of the

IX. deponent's belief that the defendant is within the jurisdiction or believed to be so.

3. Forms of Substituted Service: Whatever means will best reach the attention of the defendant. Usual forms are by:(a) Letter(b) Advertisement. See: Cook v. Dey (1876) 2 Ch. D. 218, Crane v. Julian 2 Ch. D. 220(c) On a person impliedly entitled to accept service on behalf of the defendant. Porterv. Freudenberg (1915) 1 K.B. 857Its Object and Effect: Kistler v. Tettmar (1905) 1 K.B.C. SERVICE BY AN ALTERNATIVE METHOD PT 5.10Instead of personal service party may choose an alternative method of service without first seeking an order of the court. However, this type of service must be validated in order for the claimant to advance any further in litigation.Service here must be in a manner which will satisfy the court that the person intended to be served was able to (or was likely to) ascertain the contents of the document and the time when he/she was or was likely to have been in a position to ascertain the contents of the documents When party serves by alternative method without order of court and wishes to take any step he must

file affidavit proving service to satisfaction of court. The application may be made without notice under Part 11 but must be accompanied by an affidavit outlining the above matters and exhibiting a copy of the documents served.Such an affidavit must immediately be referred to a judge by court office. He will indorse on affidavit whether the contents satisfies the court. If it does not then a date will be fixed for a hearing for service by a specified method.NB: This form of service is without parallel in the UK and any similar references in UKRules are inapplicable.D. OTHER METHODS OF SERVING CLAIM FORMMETHOD TT Service by a contractually-agreed method: 5.14 5.16 Service of claim form on agent of principal who is overseas: 5.15 5.17 5.17Service of claim form for possession of land where land is vacant: 5.16 5.18 5.18E. ORDINARY SERVICETT, Pt. 61. Methods of Effecting Ordinary Service(i) Leaving document at proper address of person to be served; (ii) By post (registered);(iii) In such other manner as the court may direct, and2. Time for Effecting Service – 6.33. Circumstances in which no service is required - 6.34. Proof of Service - Affidavit of Service TT, CPR 5.3Contents of Affidavit(a) Statement by whom served if applicable;(b) Location or place of service;(c) Day of week, time, and date on which served; and(d) Manner in which service effected with great particularity.Service on an Attorney See 5.17 (2)F. SERVICE OF DOCUMENTS OUTSIDE THE JURISDICTIONWhen Applied: When a defendant is outside of the jurisdiction at the time of the issue of the claim form and statement of claim, or is outside the jurisdiction at the time when there is an intention to serve him, permission of the court must be obtained in order to serve him effectively in the jurisdiction where he may be found. Such permission must be applied for under Part 7.3 and in accordance with Part 11.Matters Permitted: Permission will only be allowed if the case falls within the provisions of Pt 7.3 and 7.4. These deal with claims:i. for relief against a person ordinarily resident in the jurisdiction;ii. for an injunction relating to matters within the jurisdiction;iii. Is made against someone on whom the claim form has been or will be served andthere is a real issue which it is reasonable for the court to try; and

the claimant now wishes to serve the claim form on another person who is outside the jurisdiction and who is a necessary and proper party to that claim – 7.3 (2);iv. For breach of contract – 7.3 (3);V. tort – 7.3 (4);Vi. Land located within jurisdiction – 7.3 (6);vii. Enforcement of judgments and orders – 7.3 (5);viii. About trust – 7.3 (7);ix. Miscellaneous statutory provisions – 7.3 (9)x. where claim made under Pt 7.3 (3), (4) and (7) (c), the court may grant a claim for aremedy which does not fall within 7.3 but arises out of the same or substantially the same facts as the claim in respect of which the order is made – 7.4.Matters not permitted – admiralty proceedings in rem – 7.3 (8)Method of Application (7.5): Application may be made without notice but supported byevidence stating the grounds on which the application is made, that in the deponent believes he has a realistic prospect of success, in what place within what country the defendant may be found and where the claimant claims that there is between himself and the defendant a real issue which it is reasonable for the court to try, he must state the grounds for his belief that the conditions are satisfied.Factors the court will take into consideration:The plaintiff must show that he has a ‘good arguable case’ on the merits Diamond v Bank of London and Montreal Ltd. [1979] QB 333The case must ‘fall within the spirit as well as the letter of the various classes of casesprovided for in the CPR.If there is any doubt in construing the rules it ought to be resolved in favour of the foreigner.‘It becomes a very serious question ... whether this court ought to put a foreigner, whoowes no allegiance here, to the inconvenience and annoyance of being brought to contest his rights in this country, and ... this court ought to be exceedingly careful before it allowsa writ to be served out of the jurisdiction.Since the application is made by the plaintiff without notice, ‘full and fair disclosure is necessary’ of all the relevant factsA plaintiff wishing to proceed under RSC Ord 11 to serve a defendant out of the jurisdiction should act with reasonable speed. Inordinate delay for no good reason is a strong factor to be taken into consideration in exercising the court’s discretion’.The court will consider which is the appropriate court to try the action and will take into

account, inter alia, which country’s law governs the cause of action and where the most effective relief will be given. In particular, if the parties have agreed that a particular country’s courts should have jurisdiction over the dispute, the court will not generally go behind that agreement.b. whether a foreign court has jurisdiction and whether both parties would have afair trial at that foreign court;c. where the witnesses reside.Pay attention to provisions relating to:amendments to claim form (7.6);application to set aside order (7.7);service of other types of process (7.14).Methods of Service (7.8)personal service;service in accordance with the law of the country in which the defendant may be found;service by a specified method – (not applicable to ECS);Other types of service:through foreign governments;judicial and consular authorities;service under the Hague and other Convention; orwhere there is no applicable convention (7.9)UK Procedure and Practice: A distinction must be made between a claim form meant to be served within the jurisdiction and one meant to be served outside the jurisdiction. In the UK a practice has developed which mirrors a practice under the Old Rules of applying for a “concurrent claim form” for service outside the jurisdiction if originally the claim form was meant to be served within the jurisdiction but it was found that the defendant was now out of the jurisdiction. This practice has no basis in the CPR and seems to unnecessarily complicate matters. Further, the UK provisions reflect certain rights to sue and serve process in European jurisdictions under EU law which have no application to the Caribbean.The criteria test for allowing service remain essentially the same under the New Rules as under the Old: De Molestina & Ors v Ponton & Ors [2002] 1 All ER (Comm) 587.Dispensing with Service: An application for order an order dispensing with service can be made but should not be made to avoid the strict requirements of service within the time prescribed for service – Godwin v Swindon Borough Council supra.See also: Carvill America Incorporated RK Carvill & Co Ltd v. Camperdown UK Ltd XlSpeciality Insurance Co 2005 WL 1333227 (CA (Civ Div)), [2005] 1 C.L.C. 845, [2005] 2Lloyd's Rep. 457, [2005] EWCA Civ 645

A: APPLICATIONS GENERALLYApplications relate to any effort to have the court make an order in favour of a particular course of action which either party to litigation may require in order to clarify the issues, expedite the proceedings or to determine the action. Such applications could be made from the commencement of proceedings to the final judgment and enforcement of the court on the substantive matter. In exceptional circumstances, certain applications could even be made before proceedings have commenced.Under the Old Rules, there were many occasions when such applications would be allowed.Indeed, such applications were the main reason why many matters were delayed for years before arriving at the substantive hearing and determination of the matter. Under the CPR, most of these applications have been done away with by the court allowing parties to structure and execute their litigation plan as they chose before the case management conference without the leave of the court. However, all these actions will be reviewed by the court at the CMC and the court will exercise its powers of case management Part 26 in order to rationalise the litigation process in keeping with the overriding objectives of the Rules. B: TYPES OF APPLICATIONSCommon applications under the CPROffers to settle – Pt 36;Disclosure and Inspection of documents – Pt 28;Interim remedies – Pt 17;Summary judgment – Pt 15

C: PROCEDURE TO APPLYApplication in Writing or Oral: The general rule is that applications must to be made in writing (11.4 (1)) although it may be made orally if this is permitted by a rule or practice direction; or the court dispenses with the requirement for the application to be made in writing (11.4 (2)). It is important to know the circumstances when such applications can be made – situations of extreme urgency. In such circumstances, it is incumbent upon the applicant to explain to the court why the application could not have been made in writing.Another important issue under the CPR is that every application to the court must be done in accordance with the specific requirements of Part 11, even when the application is without notice. The only exception is for an application for a default judgment which has its own prescribed procedure.Notice of Application: The general rule is that an applicant must give notice of his application to the other side – 11.5 (1). Notice may be dispensed with where this is permitted by a rule or Practice Direction – 11.5 (2). An example of this would be an application for an urgent interim injunction without notice (17.3) where there is not time to give notice to the respondent or giving notice will defeat the efficacy of the proposed order by giving the

respondent time to counteract the order. See discussion on Interim Injunctions.A respondent to whom notice of an application was not given when it ought to have been may apply to the court to set the order aside – 11.15. However, once notice of an application was properly served on a respondent who fails to attend the hearing of the matter the court may proceed to hear the matter and grant the order requested without his attendance – 11.16. In such circumstances the court may wish the applicants to provide proof of service of the application on the respondent by an appropriate affidavit of service. Where an order is made in the absence of a party, that party may nevertheless apply to the court to set aside such an order where he shows on affidavit good reason for his failure to attend and he can also showthat had he attended the order of the court may have been different - 11.17.Contents of Application: An application consists of:1. The notice of application,2. Evidence in support of the application (affidavit) - 11.5 (2) and a3. Draft order for the consideration of the court - 11.7 (2).The Notice of Application (Form 10): This must contain the order the applicant is seeking and the reason/s why he is seeking the order -11.7 (1). Failure to specify the order requested may result in the refusal of the court to grant such an order - 11.12.It must also contain the reasons for the order. Such reasons are not a regurgitation of the evidence on which the applicant will rely, but a brief statement of the material facts and law that support the order.Evidence in Support: Where evidence in support of an application is required it must be on affidavit unless a rule, Practice Direction or a court otherwise orders – 11.8. Multiple Orders: An applicant may apply for several different orders in one application if it is convenient to do so if the application conforms to the overriding objective and the court’s powers of case management. In such a case, each order must be itemised in separate paragraphs and the applicant must supply relevant grounds to support each order requested.

INTERIM INJUNCTIONSAREAS TO BE COVERED1. The nature of an interim injunction;2. Circumstances under which it is issued;3. Procedure for making the application;4. Consequences of the order;5. Discharging an interim injunction;6. Distinction and consequences of an injunction with or without notice..A. INTRODUCTION1. DEFINITION AND NATUREAn interlocutory injunction is sought in a pending action - O 29 r 1 (1). It may be obtained in actions begun by any of the originating processes.

2. CLASSIFICATION(1) Classification by Nature:- (a) restrictive, prohibitory, restraining; (b) mandatory.(2) Classification by Duration:- (a) interim; (b) interlocutory; (c) perpetual.3. JURISDICTION OF COURT TO GRANT INJUNCTION(i) Trinidad and Tobago, s. 14 and s. 23(5) of the Supreme Court of JudicatureAct, Ch. 4:01.An injunction supports a right and is a form of reliefIection addition to the statutory provision vesting the High Court with power to grant interlocutory injunctions, Rules of Court also contain provisions with regard to such grant.Rules of the High Court, Cap. 3:02.(i) 'Any party to a cause or matter'. Includes a defendant, whether or not the plaintiff applies for an injunction, might seek an injunction and it is not necessary for him to have filed any pleading in the action. (Sargant v Read (1876) 1 Ch D 600).(ii) Before or after the trial' ' Part 27 is principally concerned with applications before the trial. In certain rare cases an injunction may be granted after the trial.Boorne v Wicker (1927] 1 Ch 667).(iii) Whether or not a claim for the injunction was included in that party's writ'. An interlocutory injunction may be granted although not specifically claimed in the writ; it may be appropriate as a holding measure even though the final relief sought at trial will be of a different nature.NB: application for an injunction must be made to a judge; masters have no power to grant injunctions except in terms agreed by the party, or where the injunction is ancillary to a charging order or to the appointment of a receiver by way of equitable execution.4. PRINCIPLES ON WHICH INJUNCTION GRANTED(1) Mandatory Injunctions: Redland Bricks Ltd. v Morris (1969) 2 All E.R. 576 at 579-580, [1970] AC 652, 665. ‘Where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future.’In Hooper v Rogers [1975] Ch 43, the degree of probability is not absolute and has to be tempered with justice and regard to all circumstances. (2) Interlocutory Injunction: . The guidelines fall under the following headings:The principles enunciated in American Cyanamid Co v Ethicon Ltd [1975] AC 396 have been crystallised into the following propositions enunciated in Ex parte Factortame Ltd (No. 2) [1991] 1 AC 603, [1990] 3WLR 818:Stage One - Adequacy of damages awarded at trial or payable under undertaking.Stage Two - Balance of Convenience: Balance of the risk of doing an injustice: Cayne v Global Natural Resources Plc [1984] 1 All ER 225, 237

Preserving the status quo: The Siskina [1979] AC 210Relative strength of each party’s case: – Series 5 Software v Clarke [1996] 1 AllER 853.

B. THE “EX PARTE” APPLICATIONO 27 authorises an 'ex parte' application. Ex parte applications may be made by affidavit only. O. 32 r 1; O 29, r. 1(2); O 41, r 1 (G). The following items must be attended to:1. PROCESS MUST HAVE BEEN ISSUEDThe injunction must not be applied before issue of process except in the case of urgency. In cases of urgency, the application may be made before issue of writ/claim form with undertaking to issue process on next business day:- A. G. of TT v John Humphrey, H.C.A. 2608 of 1982 (Warner J

1. THE AFFIDAVIT2.(1) Time of Filing: Unless an affidavit is filed pursuant to the procedure

laid down in A.G. v John Humphrey, the affidavit must be intituled and sworn in an existing cause and should therefore be sworn after the claim form is issued. Local practice is to swear affidavit and proceed straight away to file the CF and affidavit. Adanac Industries Ltd v Black (1962) 5 W.I.R. 233 the C.A.

(2) Care should be taken to ensure that the following things are done:-(a) Affidavit should contain a clear and concise statement:i. of the facts giving rise to the claim against the defendantii. of the facts giving rise to the claim for interlocutory reliefiii. of the facts relied on as justifying the application ex parte, including details of any notice given to the defendant or, if none has been given, the reasons for giving noneiv. of any answer asserted by the defendant (or which he is thought likely to assert) either to the claim in the action or to the claim for interlocutory reliefv. of any facts known to the applicant which might lead the court notto grant relief ex parte vi. of the precise relief sought.

(b) Affidavit contains facts and not conclusions or generalisations.However, may contain statements of information or belief with the sources thereof. Forde v Anor v Sealy (1979) 35 WIR 53.

(c) When there are many defendants, particularise in respect of each to ensure that a case for an injunction is maintainable against each

(d) In seeking to show a complete or comprehensive case, hearsay evidence may be employed subject to stating the sources of information and belief in the information in the affidavit:- Pt 30.

(e) Photographs should be employed where possible.

3. NON-DISCLOSUREThe duty to disclose: these principles were comprehensivelyReviewed by Ralph Gibson L.J. in Brink’s Mat Ltd V Elcombe [1988] 1 WLR 1350, [1988] 3 ALL ER 188.

4. DOCUMENTATION FOR WITHOUT NOTICE APPLICATION(a) Claim form. It is not usual to claim injunction on CF except if it will be a substantial object of the action. statement of claim must be in accordance with rules of court.:- (Practice is to await outcome of injunctions proceedings before delivering statement of claim at length.However, the 14 days limit to deliver a statement of claim after entry of appearance is not affected by injunction hearing. Delay gives an opportunity for each party to see where the other is coming from). Under the CPR the rules make specific provision for the issue of the claim form without the statement of claim/case in cases of urgency – 8.2 (2)(b) Affidavit of plaintiff (supra).(c) Inter partes summons for hearing to continue the injunctions. The without notice injunction would have been limited to a stated date, called the “return date” when the defendant may appear and resist the injunction. The summons has to be issued and served by the plaintiff who is under an obligation to apply to the court for the earliest appropriate date for the hearing of the summons. If he delays the court will ordinarily dismiss the summons and thus discharge the injunction.(d) Draft of injunction order: note that this is indispensable when applying for any interlocutory order of injunction, whether " without notice or " with notice (infra).5. MISCELLANEOUS MATTERS WITHOUT NOTICEa) Any application for an injunction, and particularly a without notice one must be made PROMPTLY.b) The provisions (O. 29, O. 38 r. 1) do not permit a defendant applying "ex parte", S.Pope v Mayor, etc., of San Fernando HCA# 4994/84, 465/86c) An opposed application without notice where either the defendant is invited or he learns of the hearing and attends. See Pickwick lnc. Ltd. v Multiple Sound Ltd.(1972) 3 All E.R. 394, Mohammed v Home Construction Ltd. (1988) 43 WIR 380d) A defendant who hears of the order having been made or who is served may on good ground apply 'ex parte' for the discharge of the injunction:; London City Agency v Lee (1969) 3 All E.R. 1376. Defendant may also

apply for its variation 'ex parte' - a useful and noteworthy recourse to mitigate any hardship that might have been caused by the grant without notice.e) Plaintiff should ordinarily swear to affidavit, but the facts may be deposed to by persons having knowledge of them, including an agent of the plaintiff. Lord Bryon v Johnston 35 E.R. 95 1. The failure of the plaintiff to swear to an affidavit should be explained.6. JUDGMENT ORDERThe most effective sanction to ensure compliance to the terms of an injunction is committal to prison. O 52, (TT. Kuarsingh v Bhagwandeen HCA S399/82 (TT). Obtaining an injunction order and not taking the necessary steps to ensure enforcement if the need arises is a waste of the Court's time, the client's money and professional negligence’). Attention must, therefore be paid to:DRAFTING: the order must be UNAMBIGUOUS and tell the defendant in clear terms what it is that he must or must not do:If the defendant is to do something by a particular date, the order must also say by what date the act should be done and, of course, served before that date.It should also provide for the defendant to apply on notice for discharge or ariation of the order and for costs to be reserved.In cases where no writ has been issued because of the urgency of the situation, the order must reflect an undertaking by the plaintiff to issue the writ forthwith.RECITALS: An omission of a material particular in the recital may assume significance later on. It is advisable to include all the documents before the Courtat the time the injunction order was made: writ, all affidavits with exhibits annexed. Argument may arise with respect to what material was before theCourt. A defendant is also entitled to rely upon the recitals in the injunction order as accurately informing him of the material before the Court, since consideration of the material referred to in the recitals may incline his legal advisor to the view that no case for an injunction was shown on the evidence.ANNEXURES: If the order refers to an annexure, ensure that it is annexed to the order. PENAL CLAUSE: O 45 r 7(4) E.C. - O 66 r 7(4). See various forms of relevant clauses in Vol. Supreme Court Practice, 1991, 45/7/6. Omission to have order endorsed with the penal clause is fatal. LEAVE OF COURT: to serve writ, summons to continue injunction and injunction order itself to be included in the order.UNDERTAKING AS TO DAMAGE: The plaintiff is usually required to give an undertaking in damages. No undertaking - no injunction.7 SERVICE OF ORDER: The order should be served personally on the defendant bythe Marshall of the Court, though in a proper case, the Court may dispense with such personal service. So, also, if the defendant was present in Court when the order was made. See O 45 r 7(6) R.S.C.

8. HEARING ON THE RETURN DATE: The return date is the date named in the summons on which the party or parties are required to appear (return) before the court for the initial hearing of the cause or matter. The defendant would be seeking to have the injunction discharged and would have, therefore, filed and served his affidavit in opposition outlining his case and including any material on which he proposes to rely to have the injunction discharged. The plaintiff would be seeking to have the injunction continued until the trial of the substantive action. Fullness of Affidavit: It is only in exceptional circumstances that the court will give a plaintiff leave to reply to the defendant's affidavit as he will be required to rely solely on the ‘ex parte’ affidavit9. ADJOURNMENTS: An injunction lasts until the end of the day to which it is limited and dissolves at midnight of that day. If the matter is on any subsequent adjourned date and the attorney for the plaintiff does not get the Court to order the injunction to continue to the next date, it dies at midnight. Kerry v Construction Specialists Ltd CA 49/77 (TT). He would, therefore,(1) Need to apply for an injunction anew(2) Application to be made 'inter partes', since by that time the defendant would have entered an appearance and the matter is 'inter partes'. Because a plaintiff has until midnight of the day to his disposal, should he omit to obtain the order to continue the injunction and the Court has risen he can: approach the judge in his private chambers OR find him at home or where he is OR telephone him, if possible, and request extension - Entering an order advisable.10. AFFIDAVIT OF SERVICE: In seeking to enforce an injunction order in contempt proceedings for its breach, the plaintiff is required to show that notice of the order was brought home to the defendant in accordance with 0. 45. Where there has been personal service, it is a practice of wise counsel to put an affidavit of service on the record. It may be that long after service was effected, there is need for proof of service but the server is no longer available or reachable.11. POSSIBLE ORDERS OF COURT AT HEARING: TO(1) Continue injunction "UNTIL TRIAL AND DETERMINATION of cause of further order'.(2) Request an undertaking from defendant which has the same effect as an injunction: (Undertaking may also be extracted from PLAINTIFF in a proper case).(3) Dismiss the matter with costs.(4) order an early trial whether or not injunction continued.

C. THE APPLICATION WITH NOTICEHere the application for the injunction is made in the presence of the defendant. He is served with the writ, summons for injunction and affidavit(s) in support together with exhibits. At the hearing, the plaintiff will walk with his draft order.

AT HEARING: At the trial of the matter, it is necessary to lead evidence to justify the grant of the interlocutory injunction. This means evidence of the acts of the defendant and the circumstances of urgency justifying approaching the Court in the summary fashion 'ex parte'.INJUNCTION INDORSED ON STATEMENT OF CLAIM ONLYNo interlocutory application having been made, the plaintiff is free to lead evidence to obtain, for the first time, an injunction at the trial - described as "judgement for injunction' by Stroud.**********

B. FORM AND CONTENT OF AFFIDAVITSFORM OF AFFIDAVIT GENERALLY – Pt 31.2CONTENTS OF AFFIDAVIT – Pt 31.3 An affidavit sworn to be used in final proceedings must contain only such information as the deponent can attest to of his own knowledge – 31.3(1). See also Love v Pharaoh (1954] 1 All ER 120, [1954] 1 WLR 190.An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or beliefs, with the sources and grounds thereof; 31.3 (2).THE JURAT: An affidavit must be signed by the deponent, and the jurat must be completed and signed by the person before whom it is sworn. See the Oaths Act or particulars of swearing of oath. Any attorney who holds a practising certificate may administer an oath and take an affidavit as if he were a commissioner for oath.

SUPREME COURT OF BARBADOSIN THE HIGH COURT OF JUSTICE

No. 369 of 2006BETWEEN

Heather Anne-Marie WorrellAPPLICANT

andRESPONDENT

AFFIDAVIT IN SUPPORT OF AN APPLICATION FOR A MANDATORY INJUNCTION

1. I, Heather Anne-Marie Worrell, Bank Official, of No. 27 Rosewood Park, Saint Philip in the island of Barbados MAKE OATH and say as follows:-

2. I am the Applicant herein and make this affidavit in support of my application for a mandatory injunction against the Respondent.

3. The Respondent and I were married at St. Philip’s Parish Church on December 18, 1988 and thereafter resided at No. 27 RosewoodPark, Saint Philip. (A true copy of the Marriage Certificate is hereto exhibited and marked “HW1”). The Respondent and I have a daughter, Andrea Rose

Worrell born on December 10, 1989 who currently attends Meriville Primary School in the parish ofSaint Philip. (A true copy of the Birth Certificate is hereto exhibited and marked “HW2”)

4. Our marriage broke down and a dissolution of marriage was filed by the Respondent on January 11, 1994 and on December 29,1994, a decree absolute was granted. (A true copy of the DecreeAbsolute is hereto exhibited and marked “HW3)

5. 6. On December 4, 1994, the Honourable Justice Thomas Unlucky,Judge of the High Court made an order by consent in the following terms; inter alia, that the Respondent and I have joint custody of the said child with the Respondent having access between the hours of 6:00 p.m. on Fridays to 6:00 p.m. on Sundays while I have access during the periods 6:00 p.m. on Sundays to 6:00 p.m. on Fridays. (A true copy of this Order is hereto annexed and marked “HW4”)

7. Sometime between 8:30 a.m. and 10:00 a.m. on December 8,1996, the Respondent came to my home and without permission and with the use of force took away our daughter, Andrea Rose Worrell.

8. I had been informed by my sister, Dorcus Franklin and verily believe that the Respondent is scheduled to emigrate from this Island to Canada and intends to carry our daughter, Andrea Rose Worrell with him.

9. The actions of the Respondent in removing the child from my home without permission amounts to a breach of the Court Order granted by High Court Judge Unlucky.

10. I am fearful that unless the Respondent is restrained, he will take our daughter, Andrea Rose Worrell out of the jurisdiction of theCourt.

11. In the circumstances, I beg this Honourable Court to deal with this matter as one of extreme urgency.

12. The statements made herein are true to the best of my knowledge, information and belief.

13. I make this Affidavit in support of my Application herein filed on even date.

SWORN TO by the said Heather Anne-Marie Worrell ) at the Law Courts, Coleridge Street, Bridgetown ) on the 1st day of March 2006. )

Before me:

……………………………..Susan MaloneyAttorney-at-LawLonely Law Chambers32 Clifford Street

THE CASE MANAGEMENT CONFERENCEAREAS TO BE COVERED1. What is the purpose and structure of the CMC;2. How it is managed;3. Participation at the conference;4. Types of orders to be made;5. Managing the conference for claims begun by a fixed date claim form.A. DEFINITIONWhat Is It? A case management conference is any meeting of the court, the parties to litigation and their attorneys to:1. Resolve issues in dispute, or arrive at a mutually agreeable approach to the conduct of litigation;2. Correct any defects in procedure that have been committed up to the time of the conference and to accede to any requests of the parties for orders regarding the litigation process; and3. receive directions from the court as to how the litigation process should be conducted particularly with a view of setting the trial date/window, listing questionnaire, witnesses, etc.;The case management conference (the court’s power of case management) can be conducted at any time the parties appear before the court on any application which does not completely dispose of the matter and directions are necessary for the continued conduct of the action.Aims and Objectives: The case management conference is the most critical aspect of the new

rules. The powers of the court to manage cases contained in Part 26 are given their fullest expression in Part 27 dealing with the management of the case management conference itself. It must be noted, however, that there is nothing which precludes the court from exercising these powers at any stage of the proceedings.In the Review of Civil Procedure, Dick Greenslade identifies four main aims of case management which are to ensure that:1. Proceedings are disposed of expeditiously with the minimum necessary commitment of resources by the court or by litigants;2. Cases which can be disposed of by some means other than trial should be identified as early as possible;3. Cases going to trial are adequately prepared with the minimal commitment of resources that is necessary for a fair decision to be achieved; and4. There is an appropriate and effective allocation of finite court resources.These aims are given definition in the actual process of the Case Management Conference itself (which) should have the following goals:1. To identify, define and limit the issues between the parties ;2. To identify, in broad terms in relation to each issuethe nature of the evidence to be adduced;the area of expert evidence which will be needed;what classes of documents may need to be discovered to ensure a fair trial;3. To dispose of hopeless or weak cases or issues within such cases summarily;4. To seek to narrow the area of dispute on any one or more issues;5. To seek agreement wherever possible;6. To consider whether any form of ADR would be appropriate in resolving or assisting to resolve the

issues or any of them, such as mediation, arbitration, early neutral evaluation, mini-trial, etc;7. To achieve transparency and control of costs, particularly for the client so that s/he may understand the costs consequences - and risks - of the claim;8. In particular to consider the cost of any particular direction sought against the likely benefit; and, finally9. To prepare a timetable supported by directions that will ensure trial at the earliest date and to fix a 'trial window' for the hearing.B. CONDUCTING THE CONFERENCE:The name is significant as the intention is that it should not be as much of a hearing as it should be a conference between the “stakeholders” in the litigation process – the parties, their attorneys and the court. The end result would be a set of directions (a timetable for litigation) agreed on by all parties (if and where possible) which the court can impose (by sanctions if necessary).The conference should be held in the judge’s private chambers or an appropriate room that can accommodate the parties rather than a formal court room and presided over by the judge.Even if it has to be heard in “Chamber Court” everyone except the above parties should be excluded from the court room. This harks back to the days when an application to a judge in chambers was exactly that – you had to visit the judge in his chambers without the glare of the public or other members of the profession. This process rekindles the confidentiality that is now lost in “chamber matters”. Chapter 13 of the Review of Civil Procedure is excellent reading for the management of the case management conference and must be read.Fixing the Date (27.3): Greenslade states that “ideally, it (the first case management conference)

should be when the attorneys for all parties have a clear idea of the basis of their case and broadly (if not in detail) how they intend to prove it, but before they have expended undue sums of money.”The general rule under the CPR is that the court office (Registry) must fix a case management conference immediately upon the filing of a defence to a claim other than a fixed date claim. If it does not give notice of the case management conference within 14 days of the filing of the defence, the claimant must apply for a date to be fixed within 28 days of the service of the defence. Failure of the claimant to apply for a date will result in the claim being struck out.Further, any party may apply to the court to fix a date before the defence is filed. This can be done without notice but must give reasons for such application and the court must fix a date if it is satisfied that it will enable it to deal with the case justly.In any event the case management conference must ordinarily take place between 4 to 8 weeks of the filing of the defence. The court office must give all parties not less than 14 days notice of the date, time and place of the case management conference.Dispensing with Conference (27.4): On the application of a party the court may dispense with the conference if it is satisfied that the:1. Case may be dealt with justly without it;2. Cost to the parties is disproportionate to the value to be achieved; or3. Case should be dealt with as a matter of urgency.Where the court dispenses with the hearing, it must give directions in writing about the preparation of the case, set a timetable for the steps to be taken, fix a date for a pre-trial review (if necessary), and fix a trial date (or period within which it is to take place) and thedate for sending out the listing questionnaire.

C. ATTENDANCE(27.5): It is critical that each side in an action before the court has the following representation at the case management conference:a. The actual party to the dispute (claimant or defendant), or a person who is in a position to represent his interest (not the attorney). This is important to the process as it enables the actual party to either give relevant information to his attorney or the court which would reduce the time that the attorney would then have to take to get the relevant instructions.It would also give the client/party a realistic perspective of the strength of his case and the costs involved.b. Where the party is represented by an attorney, that attorney or one who is fullyauthorised to negotiate on behalf of the client and deal with the case. This is critical and avoids the source of so many adjournments of matters in court where an attorney “holds papers” for the attorney on record but is not familiar with the matter and it would be an injustice to the client to have him deal with it. This would further enhance theexpeditious handling of the case.The court can dispense with the attendance of the party or his representative if it considers this necessary or may adjourn the hearing of the conference if the attorney or the party or his representative does not attend the conference or exercise its powers of case management under Part 26 or Part 66 (Costs).To make this exercise realistic, Greenslade recommends that the case management conference takes place at a time when attorneys are less likely to be engaged in other courts. He suggests:one day a week when trials are not conducted. This will enable judges to deal with paper work,

conduct case management conferences or part heard trials; oron afternoons perhaps three days a week.The latter is certainly a more practical suggestion if there are dedicated case management masters and judges to do this work. This will allow attorneys to deal with matters in other courts and still be able to attend and give their full attention to this procedure.D. TYPES OF ORDERSOrders to Be Made (27.6): The orders that the court makes at the conference depend on the nature of the case. As each case will vary it is difficult to state what orders the court will make. This is the reason why the rules give the court great flexibility as to the kinds of orders it makes. The following are some of those orders:Standard disclosure and inspection of documents;Service of witness statements;Service of expert’s report;Preparation of an agreed statement of facts;Preparation of an agreed statement of issues;Preparation of an agreed statement of the basic technical, scientific or medical matters in issue; andAn agreed statement as to any relevant specialist area of law.In addition to the above, we have seen in previous chapters that amendment to pleadings and joinder of parties may also have to be dealt with at the case management conference. Finally, the court must fix a date for the issue of the listing questionnaire, pre-trial review and the trial date or a period within which the trial should take place.In giving directions at the conference, the Review of Civil Procedure offers two suggestions.Firstly, directions should relate to particular issues especially where they are to be tried sequentially as in the case of disclosure. Secondly, each direction must have a clear date by which it is to be carried out and that the time allowed is realistic – “…It will

often be better to allow a little longer rather than put directions into disrepute by forcing an unrealistically fast timetable.”Variation of Timetable (27.9): The last point is critical to avoid the necessity of invoking this procedure. A party must apply to the court to vary a date set for a case management conference, a pre-trial review, return of a listing questionnaire or the trial. Where a party wishes to vary any other date in the timetable he must have the consent of the other party.When parties agree to such variation they must file a consent application for an order to that effect and certify on that application that the variation will not affect the date fixed for the trial or the period within which the trial is set to take place.If he fails to obtain the consent of the other side, he would have to apply to the court for such a variation before the scheduled date. Where he applies after the scheduled date he must apply for relief from any sanction to which he is subject and for an extension of time.Adjournments (27.8): The court may adjourn a case management conference but it cannot do so unless it fixes a date, time and place for the adjourned hearing. General adjournments are a thing of the past.The court can also adjourn a matter if it is satisfied that the parties can negotiate a settlement or are involved a form of ADR. Such an adjournment will be made for a date and time to facilitate the conclusion of these processes. Any adjourned hearing (or any procedural application made prior to a pre-trial review) must be heard and determined by the judge or master who conducted the initial hearing. This is an eminently good rule as it enables continuity and expedition in the process.Listing Questionnaire: At the prescribed time, the court office must send the parties a listing questionnaire and each party must complete and file

it at the court office within 14` days of service on him. If he fails to do so or inadequately completes it or the court thinks it necessary for giving proper directions, it may fix a listing appointment and direct any or all of the parties to attend.Fixing Trial Date: If it did not already do so, the court must fix a trial date as soon as practicable after the return of the listing questionnaire.************E. THE FIXED DATE CLAIM AND THE CASE MANAGEMENT CONFERENCEThe fixed date claim (FDC) replaces the former forms of action under the Old Rules which were designed to deal with urgent matters or matters which involved mostly questions of law and not findings of fact. Under the CPR, this first hearing is now the case management conference – 27.2 (2).What the FDC does is to bypass the regular procedure used in a claim by accelerating the time of the case management conference to 14 days of the issuing of the FDC – 27.1 (1) & (4) or earlier if there is a statutory provision that specifies an earlier date. This date is specified on the FDC and is given on the filing and issuing of the claim.In cases of urgency or where the parties agree, the case management conference may be held at an earlier date. At the first hearing of the case management conference, the court may treat the hearing as the trial of the claim if it is not defended or if it considers that the claim can be dealt with summarily – 27.2 (3).In most cases, a FDC is supported by affidavit as in the case of an application for constitutional redress or an application for leave to apply for judicial review. Only where a particular matter requiring a FDC specifies that a statement of case be filed that it seems this is necessary. The reason for this is that

the affidavit, being evidence, can allow the court to hear the matter as early as possible on the merits. It thereby achieves the objectives of the previous forms of action under the Old Rules.While the CPR are not very clear as to the procedure to be adopted for different types of matters under a FDC it seems reasonable that the FDC will stick as close as possible in form to the types of matters that were dealt with under the Old Rules e.g. constitutional motions, see Pt 56.8.

OTHER ISSUES RELATING TO PLEADINGS

1. REQUEST FOR INFORMATION: A party may request from another party to litigation information about a matter which is in dispute in the proceedings. This seems to be wider than the former request for further and better particulars which was only limited to information on the pleadings. The procedure commences with a written request which if not complied with is followed by an application for an order from the court to compel compliance.

2. Procedure: Where any amendment is made prior to the case management conference, filing the document as amended should be sufficient. However, where permission is required as is the case after the CMC, it must be applied for in accordance with the procedures set out in Pt 11.

2. AMENDMENTS: Provisions here are substantially different from UK provisions.Provisions for amendment are quite liberal and changes can be made without leave at any time prior to the case management conference except in the case of a change of parties - Orders 19 and 20.There will be no amendments to pleadings after the case management conference unless it relates to a change in circumstances and such change became known only after the CMC.In theory, amendments can be made up to and even after judgment. However, seeStewart v Engel & Hayward [2000] 1 WLR 2268. Maguire v Molin [2002] EWCACiv 1083Also note:Charlesworth v Relay Roads Ltd [2000] 1 WLR 230 indorses wisdom of rationale for amendments under the Old Rules. In some instances, however, the CPR the courts have found no impediment for an application to amend by

relying on a cause of action which arose after the commencement of proceedings which would otherwise make the claim fail – Maridive & Oil Services (SAE) v CNA Insurance Co. (Europe) Ltd (2002)LTL 25/3/02.1: Amendments to Statements of Case – Pt 20: In those cases when amendments are made to any element of a statement of case then amendments must be made by striking out the deleted parts while retaining them in the document. Where there are insertions to be made, they must be made neatly and if this cannot be done the entire document must be redrafted displaying the deleted parts (as prescribed above) as well as the interlineations. All amendments must be differently coloured such colours will appear in the following order – red, green, etc.Where an amendment is made on any document and in particular under an order of the court the particulars of amendment must be indorsed on the document. e.g. “Amended on the day of , 2005 pursuant to the order of Justice made on the day of , 2005” Parties – Pt 19;Late amendments are allowable if previous information shared by the parties would not take the other party by surprise – Willis v Quality Heating Services Ltd (2000) LTL 24/3/00, CA, Madcalf v Mardell (2000) LTL 2/3/00.To substitute the name of a party: International Distillers and Vintners Ltd v J.F.Hillebrand (UK) Ltd The Times, 25 January 2000, Gregson v Channel FourTelevision Corporation (2000) The Times 11 August 2000, CA.At the trial: amendments can be made but not where a party, having fought the case on its merits, seeks to amend to add a new cause of action or defence. Ketteman v Hansel Properties Ltd [1987] AC 189,NB: 1. Leave to amend at the trial is generally granted on the terms that the amending party pays the costs, including the costs of any adjournment.2. The exact terms of the proposed amendment ought to be reduced to writing, submitted at the earliest possible time to the other party or parties in order to prevent him or them from being taken by surprise and in order to enable him to determine his response.3. Such terms must be handed to the judge when the application is made. Bradford Third Equitable Benefit Society v Borders [1941] 2 All ER 205.

RULES APPLICABLE TO DEFENCEThere are only three ways in which a defendant can deal with his opponent's pleading. These defences are:-(1) A Traverse, or a denial of the facts alleged in the statement of claim. Ord. 18 r. 13.A party must not deny an allegation of fact in the previous pleading evasively (as inusing the negative pregnant), but answer the point of Still good law and practice confirmed in CPR – R 10.5(2) A Plea in Confession and Avoidance. i.e. an allegation that even if the facts alleged

in the statement of claim are true, there are other facts affording a defence (Ord. 18 r. 8 (1) (2). Such include: set-off counter-claim, fraud, infancy, and other disabilities, non-performance of a condition precedent, leave and license, Statute of Frauds,Gaming Act, Statutes of Limitation, privileges in defamation, matters in mitigation of damages. Ord. 18 r. 8 (i) (a); Hewitt -v- Mac Quire (1851) 7 Exch p. 80.(3) Point of Law: i.e. an allegation that if the facts set out in the statement of claim aretrue they are bad in law, and therefore do not give the plaintiff the legal right to therelief claimed. [Ord. 18 r. 11], Independent Automatic Sales Ltd. v Knowles andFoster (1962) 3 AER p. 27

CONTENTS OF DEFENCE:1. Response to Statement of Claim: The defendant must address every allegation in the statement of claim and must put his case/defence clearly and specifically plead the details of such. A defence of limitation must be specifically pleaded or he will be precluded from relying on it even if claim is statute-barred – Dismore v Milton [1938]3 All ER 762.Rule 10.5 details every requirement of the defence in detail and essentially codifies what ought to have been good practice under the Old Rules. Rule 10.7 also sets out the consequences of not following the elements of drafting according to the requirements of the CPR.2. Certificate of Truth: There are similar requirements for a certificate of truth, and need to annex documents on which defendant proposes to rely at trial.3, Attachment of Documents: In personal injury cases, requirement to specifically state whether he agrees with claimant’s medical report or where he disputes, give his reasons. Where the defendant is relying on his own medical report, he must annex it to defence.4. Special requirements relating to personal injuries: In personal injuries claims if claimant attached a medical report the defendant must state whether he agrees with the report – if not, reasons must be given - Rule 10.6. If he intends to rely on another report he must attach that report;N.B. Upon filing of defence court office must fix a CMC within 4 – 8 weeks;

NOTICE OF INTENTION TO DEFEND AND DEFAULT JUDGMENTSAREAS TO BE COVERED1. The Entry of Appearance/ Notice of Intention to Defend;2. Effect and consequences of procedure;3. Types of default judgments;

4. Nature and effect of a default judgment;5. Setting aside a default judgment.A. ENTRY OF APPEARANCEThe Entry of Appearance is a critical process in litigation which allows the court and the claimant to know in short order what type of response the defendant will make to the litigation that has been commenced against him. It throws a burden on the defendant to complete and file a pre-defined form in Process of Filing: Part 9 deals with the procedure that a defendant has to follow after he has been served with the claim form and statement of claim in an action. He is required to complete and file a form known as a memorandum of appearance with the court registry within a specified time (14 and 8 days respectively). This process is known as entering an appearance– 9.2, 9.3The filing of a defence in a matter obviates the need to file a memorandum of appearance. – 9.2 (2) Upon filing it is the responsibility of the court office to notify the claimant that the notice of intention/entry of appearance has been effected – 9.4Purpose of Process: This process allows the defendant to choose various options in relation to litigation in order to bring a speed and cost-effective end to the action. He may:admit the entire claim or part of it;deny the entire claim; oradmit and make a proposal for payment. – 9.5As a consequence of this rationale, a failure to comply with this procedure draws an inference from the court that the defendant admits liability or does not intend to defend the action and it is on this basis that a default judgment is granted.Disputing Court’s Jurisdiction: A defendant who wishes to dispute the claim or the court’s jurisdiction does not affect his right to do so by following this procedure – 9.5. In fact, in order to challenge the court’s jurisdiction or take any procedural point regarding the action he must file and then follow the procedure outlined in 9.7.On the hearing of the matter the court has power to strike out the statement of claim, discharge any order that was made prior to commencement of proceedings (such as an interim injunction) or set aside the service of the claim form – 9.7 (6).Further, if the claim is unsuccessful, the court has the jurisdiction to treat the hearing as a case management conference and make any ancillary orders it deems necessary – 9.7 (7).

B. DEFAULT OF APPEARANCE/NOTICE OF INTENTION TO DEFENDTT, O. 13, O. 19DEFAULT JUDGMENT: A default judgment is a judgment in a civil action which is granted by the court on the breach of a procedural requirement committed by a party to litigation. Most frequently, default judgments are granted where the defendant:

1. Fails to file an acknowledgement of service/notice of intention to defend; or2. Fails to file and serve a defence in the proceedings.JUDGMENTS IN DEFAULT – PT 12Judgments in default are based purely on a breach of procedural rules and are therefore called judgments on procedure Part 12.Read: Strachan v The Gleaner Company Ltd - Privy Council Appeal #22/2004 delivered on 25/07/05.Limitations: They may not be obtained in proceedings for a fixed date claim form, in admiralty or in probate proceedings. The claimant will need leave of the court in any proceedings against a State, or minors and patients, and where a party to a marriage brings a claim in tort against the other party (TT) – 12.2 & 3.Types of Judgmenti. Final judgment: a final judgment is one that is final in terms of the court’s findings on all matters in the proceedings before it including the issues of liability and damages.ii. Interlocutory judgment: an interlocutory judgment is one in which some elements of liability are yet to be determined.iii. Final and interlocutory judgment: This is a judgment which is final as regards some issues including liability but interlocutory regarding others such as the assessment of damages.WASA v L Waithe [1973] 21 WIR 498Default Judgments may be granted in the following matters – 12.7 (TT1. Claims for a specified amount of money;2. Claims for an unspecified sum of money;3. Claims for possession of land 4. Some other remedy the claimant requires to which the court believes him entitled;5. Claims for goods. In this case the court may make one of several orders including:delivery up to him or for the court to assess their value and make an order for payment;judgment requiring the defendant to pay the assessed value of the goods;where the claim form specifies the value of the goods, judgment in that amount;judgment requiring the defendant to deliver the goods without the option of paying for them – this is only granted on application to the court which must be supported by evidence on affidavit.The rules are clear as to what constitutes a specified or an unspecified amount – 12.6 (Claims for a Specified Amount).A judgment in default is only conclusive as to the issue of liability in respect of matters stated in the statement of claim at the time of service on the defendant. The defendant, therefore, is not precluded from raising any issue which is not inconsistent with the judgment. Lunnun v Singh, The Times, July 19, 1999, Pugh v Cantor FitzgeraldInternational, The Times, Mach 20, 2001.

Time of Filing: The time of filing the acknowledgement of service/memorandum of appearance on the one hand, and the application for default judgment on the other hand is critical. An application for a default judgment will not be granted if the acknowledgement of service/ memorandum of appearance is filed prior to the application for default judgment even though it is out of time.However, see the judgment of Coll v Tattum (2001) The Times, 3Procedure: An application for default judgment is perhaps the only type of application which has its own procedure and form – 12.5. Every other type of application must be made in accordance with Part 11.It may be applied for against any one or more of several defendants who are in default. In this case special rules apply and the claimant may have to await judgment against other defendants before he can enforce his judgment depending on the circumstances – 12.9Requirements for Applying for Judgment in Default of Appearance/- 12.3Requirements for Applying for Judgment in Default of Appearance (including defence to a counterclaim) - 12.4NB: The procedural requirements for filing and serving a defence are contained in Pt. 10.

C. SETTING ASIDE A DEFAULT JUDGMENT – PT 13A default judgment must be set aside where there is a procedural failure in making the application. This failure may arise if judgment was wrongly entered because -(a) in the case of a failure to file an acknowledgment of service, any of the conditions in rule 12.4 was not satisfied; or(b) in the case of judgment for failure to defend, any of the conditions in rule12.5 was not satisfied.A default judgment may be set aside where there is no procedural failure and only if the defendant -(a) applies to the court as soon as reasonably practicable after finding out that judgment had been entered;(b) gives a good explanation for the failure to file an acknowledgment of service or a defence as the case may be; and(c) has a real prospect of successfully defending the claim.Relevance of Delay: Delay is one of the factors to be considered and should not be taken as having precedence over the other factors. The court must look at all the factors in making its decision. Citoma Trading v The Federative Republic of Brazil (1999) 2 Lloyd’s Rep 750, Regency Rolls Ltd. v Carnall (2000) L.T.L October 16, MacDonald v Thorn Plc (1999) The Times, October 15, 1999.“Real Prospect of Defending the Claim”: Alpine Bulk Transport Co. Inc. v Saudi EagleShipping Co. Inc. (1986) 2 Lloyd’s Rep 221, Allen v Taylor (1992) P.I Q.R. 255, Day v RAC [1991] 1 All E.R. 1007.

Evidence: An application to set aside must be supported by evidence on affidavit. The following factors should be considered in drafting the affidavit:The deponent ought to be the person who can attest most truthfully to the facts stated;Each allegation in the statement of claim must be addressed fully;All relevant documents should be attached to the affidavit;Any delay in making the application must be explained;Any counterclaim must be specifically established;Drafts of the defence and any counterclaim should be exhibited.See also: ED &F Man Liquid Products Ltd. v Patel, The Times, April 18, 2003, para 19.004.Options Available to Court on Application: On an application to set aside a judgment, the court may:refuse the application;grant the application on certain conditions;treat the application as a case management conference and give directions as to theconduct of the rest of the proceedings.

It shares certain similarities with a default judgment, however, note the following:

11B. DEFAULT JUDGMENT vs SUMMARY JUDGMENTDEFAULT JUDGMENT SUMMARY JUDGMENTApplies on default of appearance/defence Applies at any time of the proceedings after commencementSpeedy and summary in nature Speedy and summary in natureApplies to all proceedings with specific exceptions Applies to all proceedings with specific exceptionsEx parte application (in T&T it is an OTC judgment without a hearing) Inter partes applicationJudgment is final and/or interlocutory Judgment is final and/or interlocutoryJudgment based on procedural issue Judgment on merits of the caseTo set aside defendant must show real likelihood of success and explain delay To set aside defendant must show real likelihood of success in claim or defenceCourt can impose conditions on making order to set aside Court can impose conditions on making order to set asideCan only be made on application of claimant Can be made on application of both claimant and defendantApplies at specified time depending on whether it is in relation to appearance of defence Applies at any stage of proceedings under the CPRTo succeed the breach of procedure is sufficient To succeed the applicant must show a realistic prospect of success on the claim or defence as the case may be

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SUMMARY PROCEEDINGSAREAS TO BE COVERED2. Nature and scope of summary judgment;3. Distinction with default judgment;4. Procedure for application;5. Types of orders/directions court can make.

A: NATURE AND SCOPE OF SUMMARY JUDGMENTSummary Judgment provides a rapid and relatively inexpensive procedure for obtaining summary judgment in the High Court on a claim or counterclaim to which there is no defence.Scope of Summary Judgment: Summary judgment is available in every type of matter except: a. proceedings for redress under Section 14(1) of the Constitution; andb. proceedings for -judicial review; andfalse imprisonment; andmalicious imprisonment; anddefamation;c. claims against the State; andd. admiralty proceedings in rem; ande. probate proceedings.

While the Rules specifically exclude certain types of matters, there are other matters where the court will be reluctant to grant summary judgment. This is particularly so where there is likely to be a contest on the facts in issue which will likely require a hearing on the substance of the matter in determine these matters. Such matters will include claims in negligence and other torts. Nevertheless, there are matters where a party can satisfy the court in such matters.See Vier Theodore v Ashworth Mohammed & New India Assurance Co CA# 63/03 (TT).However, there are certain matters which are particularly suitable for an application for summary judgment e.g. claims for breach of contract where the contract is in writing and especially actions in debt or mortgage where the written instrument has been legally crafted to determine liability

Summary Judgment may be employed:for the whole of the claim included in the claim formfor one of several such claimsfor a particular part of the claim or of one of several claims included in the claim formby or against a company or corporation.

against one or more of several defendants who have entered an appearance/given notice of intention to defend the actionImportant points to note:1. Both claimant and defendant (as opposed to claimant only previously) can apply for summary judgment;2. The application can be made at any time as opposed to the English position which specifies a time after which the application can be made;3. The application can be used separately or be combined with other types of applications depending on the strategy employed by the parties to the proceedings e.g. default judgment, striking out of pleadings, application for further information.

C. PROCEDURE1. THE APPLICATIONTime: - Pierre Fabre SA v Ronco Telproducts, Inc. [1984] FSR 148 Bath Press Ltd. vRose (1987) Times, 13 July.Effect of service of defence: See McLardy v Slateum (1890) 24 QBD 504Seeking judgment for whole/part of claim by claimant/s against defendant/s:Important the summons be as specific as possible as to the part/claim and party against whom judgment soughtThe Application: This is made in accordance with Part 11 of the CPR.

The Affidavit: The affidavit need not support the whole claim, but it must verify the facts on which the claim or the part of the claim to which the application relates is based.Statements: Symon & Co v Palmer’s Stores (1903) Ltd. [1912] 1 KB 259, CA.The affidavit is in an interlocutory matter and, therefore, may contain statements of information or belief with the sources and grounds thereof - Gold Ores Reduction Co. Ltd. v Parr [1893] 1 QB 139.Deponents: The affidavit may be made by the claimant or by any other person duly authorised who can properly verify the facts and depose to the requisite belief.For a company: a director or secretary or other responsible officer or servantFor the Crown: the solicitor acting for the Crown or an officer duly authorised by the solicitor or by the department concerned.See also: Seaconsar Far East Ltd v Bank Markazi Jomhouri Islam Iran [1994] 1 AC438, Carvill America Incorporated RK Carvill & Co Ltd v. Camperdown UK Ltd XlSpeciality Insurance Co [2005] 2 Lloyd's Rep. 457, [2005]

2. CONTESTING THE CLAIMANT'S APPLICATION

i. Burden of Proof: If the claimant makes out a prima facie case and his proceedings are in order, the onus shifts to the defendant to show cause why judgment should not be entered against him. The court has power to order a defendant showing cause to produce any document and in special circumstances to attend and be examined on oath, but in practice this power is rarely exercised. The defendant may contest the claimant's application by preliminary or technical objection or on the merits either by an affidavit in answer or, more rarely, otherwise than by an affidavit.ii. Defendant's Affidavit in Answer: The usual mode by which the defendant contests the claimant's application for summary judgment is by an affidavit on the merits. The affidavit should be in the normal form and unless the court directs otherwise the defendant is permitted to include statements of information or belief with the sources and grounds thereof. The failure to file an affidavit in reply may imply that there is no defence unless the action cannot be sustained on the claimant’s statement of claim and affidavit. See Vier Theodore v Ashworth Mohammed & New India Assurance Co (supra).iii. Must disclose there is issue in dispute: The object of the defendant's affidavit in answer is to satisfy the court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial. - Wallingford vMutual Society (1880) 5 App Cas 685, 705, and must state fully and clearly the facts relied on to show that there is a triable issue or question in dispute. It must also state whether the defence alleged goes to the whole or part only and if the latter to what part or amount of the claimant's claim.

iv. Questions of law and fact: If the defence turns or is founded upon a document, that document or a true copy should be exhibited - United Founders’ Trust Ltd. vFitzgeorge (1891) 7 TLR 620. If a question of law is raised, the facts relied on must be set out and the point of law clearly stated. If questions of fact are in dispute, the defendant's affidavit should not merely deny the facts alleged by the claimant but depose to his own version of the facts.The court may give judgment on any issue of law or fact – 15.6. Under the olderEnglish authorities, where a question of pure law was raised for determination in an application for summary judgment the courts traditionally declined jurisdiction to hear the matter and gave unconditional leave to defend so that the question of law could be decided by a judge at the trial of the substantive issues. See Electric & GeneralContract Corpn v Thomson-Houston Electric Co (1893) 10 TLR 103. In TrinidadHome Developers Ltd v IMH Investment Ltd [1990] 39 WIR 355 the Trinidad andTobago Court of Appeal rejected this notion and held that notwithstanding the established practice before the English courts, when a matter of pure law is raised by a defendant in Order 14 proceedings in Trinidad and Tobago, the

master (or judge) should deal with the matter finally and definitively, no matter how complex the law nor extended the argument (even if it includes the citation of many authorities).

v. Supplemental affidavit: If the defendant's affidavit is insufficient or inadequate in any respect, he may apply for and obtain an adjournment to file further evidence to supplement or supply any deficiencies.

vi. Service of affidavit in answer: The rules do not prescribe a specific time but such an affidavit should be served in good time on the claimant to enable him to have a reasonable opportunity to deal with it before the return day.

vii. Claimant's Affidavit In Reply: Girvin v Grepe (1879) 13 Ch D 174.

D. ORDERS MADE AFTER HEARINGOn an application the court may:

1. Dismiss of the application: the position of the parties reverts to what it was before its issue. It is therefore, desirable that directions be given as to further conduct of proceedings.

2. Give Unconditional Leave To Defend: Unconditional leave to defend will be given where the defendant satisfies the master either:that there is an issue or question in dispute which ought to be tried - a “triable issue”; orthat there ought for some other reason to be a trialThe general principle is that where there is a reasonable doubt whether the claimant is entitled to judgment, either because there is a dispute as to facts - Jacobs v Booth’sDistillery Co (1901) 85 LT 262, or there is an arguable point of law - Electric &General Contract Corpn v Thomson-Houston Electric Co (1893) 10 TLR 103, or there are matters which require to be further investigated by the production of documents or cross-examination or otherwise - Harrison v Bottenheim (1878) 26 WR362, the defendant should be given unconditional leave to defend, even though it may appear that he is unlikely to succeed.The court will not reject the defendant's affidavit evidence if, merely because of its inconsistency with other evidence - Paclantic Financing Vo Inc v Moscow Narodny Bank Ltd. [1984] 1 WLR 930.Set-off or counterclaim in lieu of defence: Zoedone Co v Barrett (1882) 26 Sol Jo657, CA; or arises out of the agreement sued on or is otherwise in the nature of an equitable set-offThe existence of a counterclaim will not necessarily give the defendant a right to unconditional leave to defend. Where there is clearly no defence to

the claim, the usual order will be for judgment on the claim with a stay of execution pending trial of the counterclaim. In exercising its discretion to order a stay the court will consider amongst other factorsthe degree of connection between the claim and counterclaim,the strength of the counterclaim andthe ability of the claimant to meet any subsequent judgment and the counterclaim.

In Summary Judgment proceedings a counterclaim will in certain circumstances be disregarded. Examples are:

3. if it is obviously untenable

2. if it is totally foreign to the action; if as a matter of law it cannot provide a set-off.

3. Conditional Leave to Defend

Circumstances of grant:where the defendant consents,where there is good ground in the evidence for believing that the defence set up is a sham -Fieldrank Ltd. v Stein [1961] 3 All ER 681,the master is "prepared very nearly to give judgment for the claimant",there is something suspicious in the defendant's mode of presenting his case - Lloyd’s Banking Co v Ogle (1876) 1 Ex D 262.Otherwise the defendant who shows by his affidavit that there is a triable issue is entitled to leave to defend without conditions.Factors to consider: all the circumstances of the case must be considered including the financial circumstances of the defendant. MV Yorke Motors (A firm) v Edwards [1982] 1 All ER 1024Conditions which may be imposed:the defendant brings into court the whole or part of the amount claimed within a specified periodthat the action be entered for trial in the Short Cause List orthat there be a speedy trial, orthat security be given by bond orotherwise to the satisfaction of the master.

4. Directions For Further Conduct Of ActionThe court will when giving such directions, order:that a statement of value of the action be lodged and a copy of it served on every other party;If the case is suitable for trial without pleadings the master may so order or affidavits may be directed to stand as pleadings;If discovery is ordered it may be necessary to adjourn further directions until after inspection of documents has taken place;

The court may direct that the action is fit for a speedy trial, whereupon the parties must within seven days of the date of the order or such other time as may be specified in the order apply to the Clerk of the Lists who will fix the date of trial as early as practicable;

E. OTHER CONSEQUENTIAL ORDERS AND DIRECTIONS

1. Judgments and Orders Under Summary Judgment: Where the master gives judgment for the claimant for the whole claim, together with the interest thereon included in the claim form, no order need be drawn up, but the claimant may proceed to enter judgment by taking the minute indorsed by the master on the summons to the Registry.

2. Court’s Powers of Case Management: Under the CPR an application for summary judgment must be used by the court as a case management conference to give directions as to the conduct of the case when the application is does not bring the entire proceedings to an end – 15.6

3. Setting Aside: Any judgment given against a party who does not attend the hearing of the summons before the master may be set aside or varied by the master on such terms as he thinks fit.

4. Defendant’s Application For Summary Judgment On counterclaim: Rule 5Before proceeding for summary judgment, the defendant must first have served his counterclaim. A counterclaim is not made unless and until it is served in a pleading embodying it or contained in some other document which the court orders to stand as a pleading - Impex Transport Ak. v AG Thames Holdings Ltd. [1982] 1 All ER 897.

CROWN/STATE PROCEEDINGS: Under the Old Rules, summary judgment proceedings could not be taken against the Crown, either on a claim or a counterclaim- O. 75 r 8. On the other hand the Crown may apply for summary judgment either on a claim or on a counterclaim. It is unclear whether this is so or not under the CPR as no mention is made of it. In the circumstances, it would seem that this has been abolished. The issue is whether this change is one of substantive or procedural law. If it is substantive then the CPR cannot make the change which will have to be made legislatively.W.I. AUTHORITIESTrinidad Home Developers Ltd. v IMH Investment Ltd. (1989) 39 WIR 355Trinidad Home Developers Ltd. v IMH Investment Ltd. HCA# 3702/86 (TT)NEALCO Properties Ltd. v Services Dowell Schlumberger S.A., CA# 45/84Webster v Alfonzo (1980) 34 WIR 204Guyana & T’dad Mutual Fire Insurance Co. Ltd. v RK Plummer & Asscs Ltd. (1991) 40 WIR 425 PC

Bank of Nova Scotia v E. Elias & Co. Ltd. (1995) 46 WIR 33 Williams v Williams (1978) 30 WIR 77

Trinidad & Tobago:Matrimonial Proceedings and Property Act Chap. 45:51Matrimonial Causes Rules 1973Family Proceedings Rules 1998Attachment of Earnings (Maintenance) Act Chap. 45:52Married Persons Act Chap. 45:50Family Law (Guardianship of Minors Domicile and Maintenance) Status of Children Act Chap. 46:07Cohabitational Relationships Act Chap. 45:55Offences Against the Person Act Chap.

1. Initiating Proceedings (Classroom discussion)

(a) Presenting a petition/application before one/two/three years(b) Petition/Application for Judicial Separation/Divorce/Nullity(c) Accompanying Documents

FORM 1: PETITION

The Republic of Trinidad & Tobago

In the High Court of Justice Petition No.

Divorce

Between

A.B.

Petitioner

And

C.B.

Respondent

The petition of [petitioner’s full name] shows that:

1. On the [date of marriage] the petitioner was lawfully married to [respondent’s full name] (hereinafter called ‘the respondent’) at [place and description of ceremony of marriage].

2. After the said marriage the petitioner last lived and cohabited with the respondent at [last address in Trinidad and Tobago where parties lived together] [or] [The petitioner and respondent have not cohabited in Trinidad and Tobago]

Either:

(where domicile is relied on)

3. The petitioner and respondent are domiciled in Trinidad and Tobago.

Or (where only respondent domiciled in Trinidad and Tobago)

3. The petitioner is domiciled in and the respondent is domiciled in Trinidad and Tobago.Or (where habitual residence relied on)

3. Neither the petitioner nor the respondent is domiciled in Trinidad and Tobago but the petitioner [(or) the respondent] has been habitually resident in Trinidad and Tobago for the year immediately preceding the presentation of this petition in that s/he/ has resided at the following address(es) during the said period, namely -

[Address] from [date] to [date].

-

4. The petitioner is a [occupation] and now resides at [address] ; the respondent is a [occupation] and now resides at [address].

5. (a)There is/are [state number of children] of the family now living namely and who are over 18 years of age and [ full name] who was born on the 19 [full name] who was born on the 19 and [full name] who was born on the 19 .

(b) [In the case of a husband’s petition To the knowledge of the petitioner] no other child has been born to the respondent during the marriage except [full name] who was born on the 19 . [or In the case of a wife’spetition] No other child now living has been born to the Petitioner during the marriage.

(c) [full name] and [full name] are over sixteen but receive [instruction at an educational establishment][undergo training for a trade, profession or occupation].

6. The petitioner alleges that [full name] is not a child of the family because [full particulars]

7. There have been no proceedings previous hereto in any court in Trinidad and Tobago with reference to the said marriage or the said child(ren) of the family or between the petitioner and respondent with reference to any property of either or both of them [except full particulars].

8. There are no proceedings continuing in any country outside Trinidad and Tobago which are in respect of the said marriage or are capable of affecting its validity or subsistence [except full particulars].

9. There has been no agreement or arrangement between the petitioner and the respondent for the support of the parties or of any child of the family [except full particulars].

10. [Only in cases where 5 years separation is in fact relied on] The petitioner proposes, if a decree nisi is granted to make the following financial provision for the respondent [ full particulars] [or] [The petitioner makes no proposals for financial provision for the respondent in the event of a decree nisi being granted.]

11. [In the case of a petition for divorce] the marriage has broken down irretrievably. MPPA S. 41

12. The respondent has [committed adultery with [full names and address so far as are known to the petitioner] and the petitioner finds it intolerable to live with the respondent.

[or]

The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.[or]

The respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of this petition.

[or]

The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of this petition and the respondent consents to a decree being granted.

[or]

The parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of this petition.

[or, appropriate grounds if the petition is for nullity]

PARTICULARS

[Particulars of individual facts relied on but not the evidence by which they are to be proved]

The petitioner therefore prays:

(1) That the said marriage may be dissolved [annulled] [That there be a decree of judicial separation]

(2) That the respondent [and co-respondent/ second respondent] may be ordered to pay the costs of this suit.

[Signature] Attorney at law [Signature] Petitioner

I, [full names] of [address] make oath and say as follows [do solemnly and sincerely affirm] that the contents of this my petition is true.

[Signature]

Sworn etc.

Commissioner for affidavits

The names and addresses of the persons who are to be served with this petition are:

The petitioner’s address for service is [Must be an address within three (3) miles of the Court Office]:

Dated

FORM 12: APPLICATION

The Republic of Trinidad & Tobago

In the High Court of Justice Claim No.

Divorce/ Family

Between

A.B.

Petitioner/Applicant

and

C.D.

Respondent

NOTICE OF APPLICATIONThe [petitioner] [applicant] [respondent] applies to the court for an order that -

A draft of the order that I seek is attached.

The grounds of the application are -

I/We hereby certify that the facts stated above are true to the best of my/our knowledge, information and belief.

[An affidavit in support accompanies this application]

Signed [Attorney for] [petitioner] [applicant] [respondent]

Dated

NOTICE:

This application will be heard by [the Judge in Chambers] [Master xxxxx] on

[Day] the day of , at am/pm at [the Hall of Justice, Knox Street, Port of Spain]

If you do not attend this hearing an order may be made in your absence.

OR

The [Judge in Chambers] [Master] will deal with this application by -

NB This notice of application must be served as quickly as possible on the respondent to the application.

The Court office is at [the Hall of Justice, Knox Street, Port of Spain] telephone number xxx-xxxx, FAX xxx.xxxx. The office is open between [8.00] and [4.00] Mondays to Fridays except Public Holidays and on such other days as the Court Office is closed.

Part 9

Petitions for divorce, judicial separation and nullity9.1

(3) A petition is issued on the date entered on the form by the court office.

(4) The petition may be issued if the petitioner presents to the court office -

(a) the petition; and

(b) the statement of arrangements for children (if any)required by rule 9.6,together, in each case, with sufficient copies for service on all respondents; and

(c) the marriage certificate required by rule 9.5, and

(d) a statement as to reconciliation in the appropriate practice form.

Form of petition9.2 (2) The petition shall be verified by affidavit.

Contents of petition9.3 (1) The petition shall contain such information set out in

Appendix A to these rules as is appropriate to the type of petition issued.

(2) The petition shall state the names and addresses of all persons to be served and whether any such person is a minor or a patient.

(3) The petition shall end with a prayer giving details of the relief sought including -

(a) the nature of the decree that is sought; and

(b) any order sought with regard to the custody of or access to any child of the family; and

(c) any claim for costs.

(4) The petition shall give an address for service for the petitioner within 3 miles of the court office from which it is issued.

(5) The petitioner shall sign the petition and verify by affidavit that the contents are true.

Parties9.4 (1) The person who issues the petition is referred to as 'the petitioner'.

(2) The spouse of the person who issues the petition is referred to in the proceedings based on the petition as 'the respondent'.

(3) Any other named person who is alleged to have committed adultery with the respondent or (in the case of an Answer) the petitioner is called 'the co-respondent' (if male) or 'the second respondent' (if female).

(4) Where the petitioner alleges that the respondent has been guilty of an improper relationship with a named person or of rape upon a person named the petitioner shall apply immediately after filing the petition for directions whether that person should be named as a co-respondent or second respondent.

(5) An application under paragraph (4) may be made without notice but shall be supported by evidence.

Marriage certificate to be filed9.5 (1) The general rule is that a marriage certificate shall be filed with the

petition.

(2) However the court may give permission to issue a petition without a marriage certificate.

(3) An application for permission may be made without notice but shall be supported by evidence.

Statement of arrangements for children9.6 (1) On issuing any petition the petitioner shall file a statement of the existing and proposed arrangements for each relevant child.

(2) That statement shall be in the appropriate practice form.

(3) The statement shall be signed by the petitioner and certified as true.

(4) The statement may also be signed by the respondent spouse if that spouse agrees with the statement.

Service of petition9.7 (1) The petition shall be served in accordance with Part 6.

(2) There shall be served with the petition

(a) the statement of arrangements for the relevant children (if any); and

(b) a blank form of acknowledgment of service; and

(c) a notice of proceedings,

in the appropriate practice forms.

2. Service (Classroom discussion)

(a) Substituted Service(b) Service by Alternative Method(c) Dispensing with Service

Part 6

Service of PetitionPower of court to make an order for service by a specified method

6.6 (1) The court may direct that a petition may be served by a method specified in the court's order.

(2) An application for an order to serve by a specified method may be made without notice, but shall be supported by evidence specifying the method of service and showing that that method of service is likely to enable the respondent or co-respondent to ascertain the contents of the petition.

Service out of Trinidad and Tobago – general provisions6.7 (1) A petition or any other document in family proceedings may be served on a person out of Trinidad and Tobago by any method approved by the Court upon an ex parte application.

(2) An order made under sub rule (1) shall fix a time for giving notice of intention to defend.

Translation of petition where party being served does not understand English

6.8 (1) Where there is reason to believe that the respondent or co-respondent does not understand English, every copy of the petition shall be accompanied by a translation of the petition, notice of proceedings and acknowledgment of service forms.

(2) The translation shall be in a language which the respondent or co-respondent will understand.

(3) The petitioner shall file evidence to show that the respondent or co-respondent understands the language into which the petition has been translated.

(4) Every translation filed under this rule shall be certified by the person making it to be a correct translation, and the certificate shall state -

(a) the name of the person making the translation; and

(b) his address; and

(c) his qualifications for making a translation.

Power of court to dispense with service6.9 (1) The court may dispense with service of a petition if it is appropriate to do so.

(2) An application for an order to dispense with service may be made without notice but shall be supported by evidence showing that it is appropriate to make such an order.

9. Ancillary Relief—Maintenance (Jurisdiction-specific workshop)

(a) High Court:(i) Spouse (pending suit)(ii) Spouse (after Decree Nisi)(iii) Cohabitant(iv) Child(b) Magistrate’s Court

PART II

MAINTENANCE AND RELATED MATTERS

 MPPA     23.  On a petition for divorce, nullity of marriage or judicial separation, the Court may order either party to the marriage to make to the

other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the Court thinks reasonable.

      24.  (1)  On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the Court may, subject to the provisions of section 34(1), make any one or more of the following orders:

                    (a)  an order that either party to the marriage shall make to the other such periodical payments and for such term as may be specified in the order;

                    (b)  an order that either party to the marriage shall secure to the other, to the satisfaction of the Court, such periodical payments and for such term as may be so specified;

                     (c)  an order that either party to the marriage shall pay to the other such lump sum as may be so specified.

             (2)  Without prejudice to the generality of subsection (1)(c), an order under this section that a party to a marriage shall pay a lump sum to the other party—

                    (a)  may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section;

                    (b)  may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the Court.

      25.  (1)  Subject to the provisions of section 30, in proceedings for divorce, nullity of marriage or judicial separation, the Court may make any one or more of the orders mentioned in subsection (2)—

                    (a)  before or on granting the decree of divorce, of nullity of marriage or of judicial separation, as the case may be, or at any time thereafter;

                    (b)  where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal.

             (2)  The orders referred to in subsection (1) are—

                    (a)  an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments and for such term as may be so specified;

                    (b)  an order that a party to the marriage shall secure to such person as may be so specified for the benefit of such a child, or to such a child, to the satisfaction of the Court, such periodical payments and for such term as may be so specified;

                     (c)  an order that a party to the marriage shall pay to such person as may be so specified for the benefit of such a child, or to such a child, such lump sum as may be so specified.

             (3)  Without prejudice to the generality of subsection (2)(c), an order under this section for the payment of a lump sum to any person for the benefit of a child of the family, or to such a child, may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of that child before the making of an application for an order under this section to be met.

             (4)  An order under this section for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the Court.

             (5)  Where the Court has power to make an order in any proceedings by virtue of subsection (1)(a), it may exercise that power from time to time; and where the Court makes an order by virtue of subsection (1)(b) in relation to a child it may from time to time make a further order under this section in relation to him.

Part 12

Applications for Financial Relief12.1 (1) This Part deals with applications by a husband or wife or

cohabitant for financial relief for him or herself or by a parent or any other person by or on behalf of a child for financial relief for that child whether or not there are divorce, judicial separation or nullity proceedings pending.

(2) In this Part "an application for financial relief" means any application for financial provision of any nature for a spouse, cohabitant, or child and includes but is not limited to an application for one or more of the following -

(a) an application for -

(i) child maintenance;

(ii) maintenance pending suit;

(iii) periodical payments;

(iv) secured periodical payments;

(v) a lump sum;

under sections 23,24, 25 and 26 of the principal act and any similar applications under other statutes;

(b) an avoidance of disposition order under section 44 of the principal act; 44.  (1)  Where proceedings for “financial provision”) are brought by a an “the applicant” against another party”, the Court may, on an application by the applicant—

                    (a)  if it is satisfied that the other party is, with the intention of defeating the claim for financial provision about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property make such order as it thinks fit for restraining the other party from so doing or otherwise for protecting the claim;

                    (b)  if it is satisfied that the other party has, with the intention mentioned in paragraph (a), made a disposition to which this paragraph applies and that if the disposition were set aside financial provision or different financial provision would be granted to the applicant, make an order setting aside the disposition and give such consequential directions as it

thinks fit for giving effect to the order (including directions requiring the making of any payment or the disposal of any property);

                     (c)  if it is satisfied, in a case where an order under the relevant provisions of this Act has been obtained by the applicant against the other party, that the other party has, with the intention mentioned in paragraph (a), made a disposition to which this paragraph applies, make such an order and give such directions as are mentioned in paragraph (b), and an application for the purposes of paragraph (b) shall be made in the proceedings for the financial provision in question.

             (2)  Subsection (1)(b) and (c) apply respectively to any disposition made by the other party (whether before or after the commencement of the proceedings for financial provision), not being a disposition made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of any such intention as is mentioned in subsection (1)(a) on the part of the other party.

             (3)  Where an application is made under this section with respect to a disposition which took place less than three years before the date of the application or to a disposition or other dealing with property which is about to take place and the Court is satisfied—

                    (a)  in a case falling within subsection (1)(a) or (b), that the disposition or other dealing would (apart from this section) have the consequence; or

                    (b)  in a case falling within subsection (1)(c) that the disposition has had the consequence,

of defeating the applicant’s claim for financial provision, it shall be presumed, unless the contrary is shown, that the other party disposed of the property with the intention mentioned in subsection (1)(a) or, as the case may be, with that intention, about to dispose of or deal with the property.

             (4)  In this section—

“disposition” does not include any provision contained in a Will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise;

“property” has the meaning assigned to it in section 41(7);

“the relevant provisions of this Act” means any of the provisions of sections 23, 24, 25, 26, 27, 31 [except subsection (6) thereof] and 39,

and any reference to defeating an applicant’s claim for financial provision is a reference to preventing financial provision from being granted to the applicant, or to the applicant for the benefit of a child of the family, or reducing the amount of any financial provision which might be so granted, or frustrating or impeding the enforcement of any order which might be or has been made at the instance of the applicant under the relevant provisions of this Act.

             (5)  The provisions of this section shall not apply to a disposition made more than three years before the commencement of this Act.

(c) an application for neglect to maintain under section

28 of the principal act; 28.  (1)  Either party to a marriage may apply to the Court for an order under this section on the ground that the other party to the marriage ( “the respondent”)—

                    (a)  being the husband, has wilfully neglected—

                              (i)   to provide reasonable maintenance for the applicant; or

                             (ii)   to provide, or to make a proper contribution towards reasonable maintenance for any child of the family to whom this section applies;

                    (b)  being the wife, has wilfully neglected to provide, or to make a proper contribution towards, reasonable maintenance—

                              (i)   for the applicant in a case where, by reason of the impairment of the applicant’s earning capacity through age, illness or disability of mind or body, and having regard to any resources of the applicant and the respondent respectively which are, or should properly be made, available for the purpose, it is reasonable in all the circumstances to expect the respondent so to provide or contribute; or

                             (ii)   for any child of the family to whom this section applies.

             (2)  The Court shall not entertain an application under this section unless—

                    (a)  the applicant or the respondent is domiciled in Trinidad and Tobago on the date of the application; or

                    (b)  the applicant has been habitually resident in Trinidad and Tobago throughout the period of one year ending with that date; or

                     (c)  the respondent is resident in Trinidad and Tobago on that date.

             (3)  This section applies to any child of the family for whose maintenance it is reasonable in all the circumstances to expect the respondent to provide or towards whose maintenance it is reasonable in all the circumstances to expect the respondent to make a proper contribution.

             (4)  Where the child of the family to whom the application under this section relates is not the child of the respondent, then, in deciding—

                    (a)  whether the respondent has been guilty of wilful neglect to provide, or to make a proper contribution towards, reasonable maintenance for the child; and

                    (b)  what order, if any, to make under this section in favour or for the benefit of the child,

the Court shall have regard to the matters mentioned in section 27(3).

             (5)  Where on an application under this section it appears to the Court that the applicant or any child of the family to whom the application relates is in immediate need of financial assistance, but it is not yet possible to determine what order, if any, should be made on the application, the Court may order the respondent to make to the applicant until the determination of the application such periodical payments as the Court thinks reasonable.

             (6)  Where on an application under this section the applicant satisfies the Court of any ground mentioned in subsection (1), then, subject to section 30, the Court may make such one or more of the following orders as it thinks just:

                    (a) an order that the respondent shall make to the applicant such periodical payments and for such term as may be specified in the order;

                    (b)  an order that the respondent shall secure to the applicant, to the satisfaction of the Court, such periodical payments and for such term as may be so specified;

                     (c) an order that the respondent shall pay to the applicant such lump sum as may be so specified;

                    (d) an order that the respondent shall make to such person as may be specified in the order for the benefit of the child to whom the application relates, or to that child, such periodical payments and for such term as may be so specified;

                     (e) an order that the respondent shall secure to such person as may be so specified for the benefit of that child, or to that child, to the satisfaction of the Court, such periodical payments and for such term as may be so specified;

                     (f) an order that the respondent shall pay to such person as may be so specified for the benefit of that child, or to that child, such lump sum as may be so specified.

             (7)  Without prejudice to the generality of subsection (6)(c) and (f), an order under this section that the respondent shall pay a lump sum—

                    (a)  may be made for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the applicant or any child of the family to whom the application relates before the making of the application to be met;

                    (b)  may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the Court.

(d) an application to vary, discharge, suspend or revive an order for maintenance of a spouse or child under section 31 of the principal act; 31.  (1)  Where the Court has made or is by virtue of section 10 of the Supreme Court of Judicature Act, deemed to have made an order to which this section applies, then, subject to this section, the Court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.

             (2)  This section applies to the following orders, that is to say:

                    (a)  any order under section 23;

                    (b)  any order made by virtue of section 24(1)(a) or (b) or 24(2)(b);

                     (c)  any order made by virtue of section 25(2)(a) or (b) or 25(4);

                    (d)  any order made by virtue of section 26(1)(b), (c) or (d) on or after granting a decree of judicial separation;

                     (e)  any order made by virtue of section 28(5), 28(6)(a), (b), (d) or (e) or 28(7)(b); and

                     (f)  any order made by virtue of section 17 of the Muslim Marriage and Divorce Act.

             (3)  The powers exercisable by the Court under this section in relation to an order shall be exercisable also in relation to any instrument executed in pursuance of the order.

             (4)  The Court shall not exercise the powers conferred by this section in relation to any order made by virtue of section 26(b), (c) or (d) on or after granting a decree of judicial separation, except on an application made in proceedings—

                    (a)  for the rescission of that decree; or

                    (b)  for the dissolution of the marriage of the parties to the proceedings in which that decree was made.

             (5)  No such order as is mentioned in section 24 shall be made on an application for the variation of an order made by virtue of section 24(1)(a) or (b) or section 25(2)(a) or (b), and no order for the payment of a lump sum shall be made on an application for the variation of an order made by virtue of section 24(1)(a) or (b) or of section 28(6)(a) or (b).

             (6)  Where the person liable to make payments under an order made by virtue of section 24(1)(b), section 25(2)(b) or section 28(6)(b) or (e) has died, an application under this section relating to that order may be made by the person entitled to payments under the order or by the personal representatives of the deceased person, but no such application shall, except with the permission of the Court, be made after the end of the period of six months from the date on which representation in regard to the estate of that person is first taken.

             (7)  In exercising the powers conferred by this section the Court shall have regard to all the circumstances of the case, including any change in any of the matters to which the Court was required to have regard when making the order to which the application relates and, where the party against whom that order was made has died, the changed circumstances resulting from his or her death.

             (8)  The personal representatives of a deceased person against whom any such order as is referred to in subsection (6) was made shall not be liable for having distributed any part of the estate of the deceased after the expiration of the period of six months referred to in that subsection on the ground that they ought to have taken into account the possibility that the Court might permit an application under this section to be made after that period by the person entitled to payments under the order; but this subsection shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this section.

             (9)  In considering for the purposes of subsection (6) the question when representation was first taken out, a grant limited to settled land or to trust property shall be left out of account and a grant limited to real estate or to personal estate shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time.

(e) a variation of a maintenance agreement under sections 39 or 40 of the principal act; 39.  (1)  Where a maintenance agreement is for the time being subsisting and each of the parties to the agreement is for the time being either domiciled or resident in Trinidad and Tobago, then, subject to subsection (3), either party may apply to the Court for an order under this section.

             (2)  If the Court is satisfied either—

                    (a)  that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made or, as the case may be, financial arrangements were omitted from it (including a change foreseen by the parties when making the agreement), the agreement should be altered so as to make different, or, as the case may be, so as to contain, financial arrangements; or

                    (b)  that the agreement does not contain proper financial arrangements with respect to any child of the family,

then, subject to subsections (3), (4) and (5), that Court may by order make such alterations in the agreement—

                              (i)   by varying or revoking any financial arrangements contained in it; or

                             (ii)   by inserting in it financial arrangements for the benefit of one of the parties to the agreement or of a child of the family,

as may appear to that Court to be just having regard to all the circumstances, including, if relevant, the matters mentioned in section 27(3); and the agreement shall have effect thereafter as if any alteration made by the order had been made by agreement between the parties and for valuable consideration.

             (3)  Where the Court decides to alter, by order under this section, an agreement by inserting provision for the making or securing by one of the parties to the agreement of periodical payments for the maintenance of the other party or by increasing the rate of the periodical payments that the agreement provides are to be made by one of the parties for the maintenance of the other, the term for which the payments, or, as the case may be, so much of the payments as is attributable to the increase, are or is to be made under the agreement as altered by the order shall be such term as the Court may specify, but that term shall not exceed—

                    (a)  where the payments will not be secured, the joint lives of the parties to the agreement or a term ending with the remarriage of the party to whom the payments are to be made, whichever is the shorter;

                    (b)  where the payments will be secured, the life of the party to whom the payments are to be made, or a term ending with the remarriage of that party, whichever is the shorter.

             (4)  Where the Court decides to alter, by order under this section, an agreement by inserting provision for the making or securing by one of the parties to the agreement of periodical payments for the maintenance of a child of the family or by increasing the rate of the periodical payments that the agreement provides are to be made or secured by one of the parties for the maintenance of such a child, then, in deciding the term for which under the agreement as altered by the order the payments or, as the case may be, so much of the payments as is attributable to the increase are or is to be made or secured for the benefit of the child, the Court shall apply the provision of section 30(1), (2) and (3) as if the order to which this subsection relates were an order under section 25.

             (5)  For the avoidance of doubt it is hereby declared that nothing in this section or in section 38 affects any power of the Court before which any proceedings between the parties to a maintenance agreement are brought under any other written law (including a provision of this Act) to make an order containing financial arrangements or any right of either party to apply for such an order in such proceedings.

             (6)  In this section, the expressions “maintenance agreement” and “financial arrangements” have the meanings assigned to them in section 38.

      40.  (1)  Where a maintenance agreement within the meaning of section 38 provides for the continuation of payments under the agreement after the death of one of the parties and that party dies domiciled in Trinidad and Tobago, the surviving party or the personal representatives of the deceased party may, subject to subsections (2) and (3), apply to the Court for an order under section 39.

             (2)  An application under this section shall not, except with the permission of the Court, be made after the end of the period of six months from the date on which representation in regard to the estate of the deceased is first taken out.

             (3)  Where a maintenance agreement is altered by the Court on an application made in pursuance of subsection (1), the like consequences shall ensue as if the alteration had been made immediately before the death by agreement between the parties and for valuable consideration.

             (4)  The provisions of this section shall not render the personal representatives of the deceased liable for having distributed any part of the estate of the deceased after the expiration of the said period of six months on the ground that they ought to have taken into account the possibility that a Court might permit an application by virtue of this section to be made by the surviving party after that period; but this subsection shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this section.

             (5)  Section 31(9) shall apply for the purposes of subsection (2) as it applies for the purposes of section 31(6).

(f) maintenance from a deceased's estate under section 41 of the principal act or for the discharge or variation of an order under that section;

(h) an application by a respondent under section 11 of the principal act (financial provision for the respondent where decree based on periods of separation);

(i) an application under Part III of the Wills and Probate Ordinance, Chap. 8. No.2 or Part VIII of the Succession Act, 1981; and

(j) an adjustment or maintenance order under the Cohabitational Relationships Act, 1998.

Maintenance

         14.  Except as otherwise provided by this Act, one cohabitant is not liable to maintain the other cohabitant and a cohabitant is not entitled to claim maintenance from the other.

      15.  (1)  A Court may make a maintenance order, where it is satisfied as to one or more of the following matters:

                    (a)  that the applicant is unable to support himself adequately by reason of having the care and control of a child of the cohabitational relationship, or a child of the respondent, being in either case, a child who is—

                              (i)   under the age of 12 years; or

                             (ii)   in the case of a physically disabled or mentally ill child, under the age of 18 years;

                    (b)  that the applicant’s earning capacity has been adversely affected by the circumstances of the relationship, and in the opinion of the Court a maintenance order would increase the applicant’s earning capacity by enabling the applicant to undertake a course or programme of training or education; and

                     (c)  having regard to all the circumstances of the case, it is reasonable to make the order.

             (2)  In determining whether to make a maintenance order and in fixing the amount to be paid pursuant to such an order, the Court shall have regard to—

                    (a)  the age and state of health of each of the cohabitants including the physical and mental disability of each cohabitant;

                    (b)  the income, property and financial resources of each cohabitant;

                     (c)  the financial needs and obligations of each cohabitant;

                    (d)  the responsibilities of either cohabitant to support any other person;

                     (e)  the terms of any order made under section 10 with respect to the property of the cohabitants;

                     (f)  the duration of the relationship;

                    (g)  a standard of living, that in all the circumstances is reasonable;

                    (h)  the extent to which the applicant has contributed to the income, earning capacity, property and financial resources of the other cohabitant;

                     (i)  the terms of any order made by a Court in respect of the maintenance of a child or children in the care and control of the applicant;

                     (j)  any fact or circumstance that, in the opinion of the Court, the justice of the case requires to be taken into account.

             (3) In subsection (1)(a), “mentally ill” has the same meaning assigned to it by section 2 of the Mental Health Act.

      16.  Where it appears to the Court that a cohabitant, applying for a maintenance order, is in immediate need of financial assistance, the Court may make an interim order for the payment of reasonable periodic sums until the application is finally determined.

      17.  (1)  The Court may not make a maintenance order in favour of a cohabitant who has entered into a subsequent cohabitational relationship or has married or remarried.

             (2)  A maintenance order shall cease to have effect on the marriage or remarriage of the cohabitant in whose favour the order was made.

      18.  (1) Where, before an application for maintenance is determined, either cohabitant dies, the application shall abate.

             (2)  A maintenance order shall cease to have effect on the death of either of the cohabitants.

      19.  (1)  A maintenance order may apply for such period as may be determined by the Court, but shall not exceed three years from the date on which the order was made.

             (2)  Where the Court makes a maintenance order, being an order made where the Court is satisfied solely as to the matters specified in section 15(1)(a), the order shall cease to have effect on the day on which the cohabitant in whose favour the order was made, ceases to have the care and control of the child or children, as the case may be.

      20.  (1)  The Court may, upon the application of either cohabitant, vary or revoke a maintenance order.

             (2)  Where the Court makes a maintenance order for a period shorter than the period permissible under section 19(1), the cohabitant in whose favour the order was made may, at any time before the expiration of that order, apply to the Court for an extension of the period.

Evidence in support of application - general12.3 (1) An application shall be supported by an affidavit setting out the income, capital, assets and liabilities of the applicant and the grounds on which the application is made.

(2) Where practicable the affidavit shall be in the appropriate practice form.

(3) When there is in force an order of a court for maintenance of a spouse, cohabitant or child, the applicant shall file a copy of the order.

(4) The applicant may file further evidence in support of the application.

Where to make application12.4 The application shall be filed -

(a) if there are any other proceedings in the High Court for divorce, judicial separation, nullity or financial relief or relating to a child of the family, in the court office in which such proceedings are pending.

(b) if there are no such proceedings, in any court office.

Service of application12.6 (1) If there are other proceedings in the High Court for divorce, judicial separation, nullity or financial relief the application may be served in accordance with Part 7 at any address for service given by the respondent to the application.

(2) If there are no such proceedings the application shall be served in accordance with Part 6.

(3) In addition a copy of the application and of any evidence in support shall be served by the applicant on -

(a) in the case of an application for a variation of settlement order, on the trustees of the settlement and the settler if living; and

(b) in the case of an avoidance of disposition order, on the person in whose favour the disposition is alleged to have been made; and

(c) in the case of an application -

(ii) for maintenance out of the estate of a spouse or former spouse or cohabitant, on the personal representatives of the spouse, former spouse or cohabitant; and

(d) in any case, on any persons whom the court may direct.

Proceedings against estate of dead spouse or former spouse12.7 (1) Where in any proceedings it appears that a dead person was interested in the proceedings then, if the dead respondent has no personal representatives, the court may make an order appointing someone to represent his estate for the purpose of the proceedings.

(2) A person may be appointed as a representative if he

(a) can fairly and competently conduct proceedings on behalf of the estate of the deceased person; and

(b) has no interest adverse to that of the estate of the deceased person.

(3) The court may make such an order with or without an application.

(4) Until the court has appointed someone to represent the respondent's estate, the applicant may take no step in the proceedings apart from applying for an order to have a representative appointed under this rule.

(5) A decision in proceedings where the court has appointed a representative under this rule binds the estate to the same extent as if the person appointed were an executor or administrator of the dead respondent's estate.

Evidence in answer - general

12.8 (1) Unless the parties are agreed on the terms of any order as to financial relief, the respondent shall file an affidavit in the appropriate practice form within 28 days of service of the application upon him.

(2) Any other person who has been served with a copy of the application under rule 12.6(2) may file evidence by affidavit within 28 days of service of the application upon him.

Evidence in answer - special requirements12.9 A respondent to an application -

(a) for the alteration of a maintenance agreement after the death of one of the parties; or

(b) under section 41 of the principal act; or

(c) under Part VIII of the Succession Act, 1981 or Part III of the Wills and Probate Ordinance Chap 8:02,

who is a personal representative of the deceased shall state -

(i) the capital, income, assets and liabilities of the surviving spouse or former spouse so far as they are known to the applicant;

(ii) full particulars of the value of the deceased's estate;

(iii) the person or classes of persons beneficially interested in the estate, their addresses and the value of their interests so far as ascertained;

(iv) whether any beneficiary is a minor or patient and, if so, name him; and

(v) any other facts relevant to the application.

Service of evidence12.11 (1) Any party filing any evidence shall immediately serve a copy of that evidence on the other party.

(2) Any evidence which contains an allegation of adultery or an improper association with a named person shall be served on that person together with a notice in the appropriate practice form.

(3) Any person served with a notice under paragraph (2) may apply to intervene in the proceedings.

Application to approve agreement relating to financial relief12.12 (1) This rule applies where the parties are agreed on the terms of an order for financial relief.

(2) No such agreement for such an order is binding until approved by the court.

(3) The parties may refer the agreement to the court by filing -(a) a draft order in the terms agreed -

(i) expressed as being 'By Consent'; and

(ii) signed by the attorney acting for each party and by the parties; and

(b) a statement or statements of the capital, income assets and liabilities of each party in the appropriate practice form which shall set out any circumstance which either or both parties consider to be relevant to the consideration of the agreement by the court.

(4) The statement under paragraph (3) shall be an agreed statement if practicable.

(5) If an affidavit of means has been filed by either or both parties a statement under paragraph (3) may merely state that there has been no significant change in the financial circumstances of that party as set out in the relevant affidavit or state what changes (if any) there have been.

(6) Each statement under paragraph (3)(b) shall be certified as correct by the party making it.

(7) So soon as is reasonably practicable the court shall consider the terms of the agreement and the information supplied and -

(a) make an order in the agreed terms; or

(b) if the agreement relates to an order other than an order for maintenance pending suit or an order relating to financial relief for a child of the family, record its approval of the terms of the agreement; or

(c) fix a directions hearing and give notice to the parties.

(8) Where the court has recorded its approval under paragraph (7)(b) the order is to be made on or after the granting of a decree

nisi or a decree of judicial separation.

Corresponding order12.13 (1) This rule applies where the court has made an order for maintenance pending suit.

(2) The spouse in whose favour that order was made may apply for an order for periodical payments in the same amount.

(3) That order is called a "corresponding order".

(4) An application shall be in the appropriate practice form.

(5) The court office shall serve notice of the application on the other spouse in the appropriate practice form.

(6) If within 14 days of service of the notice of application that spouse does not object to the making of the corresponding order the court shall make that order.

(7) If that spouse objects to the making of the order the court office shall fix a directions hearing.

10. Enforcement of Maintenance Orders (Jurisdiction-Specific workshop)

(a) High Court:

(i) Attachment of Earnings/Garnishment 5.  (1) The following persons may apply for an attachment of earnings order:

                    (a)  any person making an application for a maintenance order;

                    (b)  any person who is entitled to receive payment under a maintenance order whether directly or into a specified bank account or to the Collecting Officer;

                     (c)  without prejudice to paragraph (b), where the application is to the Magistrate’s Court for an attachment of earnings order and there is in force an order under section 26(6) of the Family Law (Guardianship of Minors, Domicile and Maintenance) Act, that those payments be made to the Collecting Officer;

                    (d)  the debtor.

(4)  Where a maintenance order is not in force, an application for an attachment of earnings order may be made at the same time as an application for a maintenance order, and the Court shall hear the application for the attachment of earnings order forthwith after the maintenance order has been granted.

             (5)  An application for an attachment of earnings order under subsection (4) shall be made by way of notice in Form 8 of Schedule 5 and a copy of the notice shall be served on the person against whom the maintenance order is being sought.

             (6)  Where proceedings are brought—

                    (a)  in the High Court for the enforcement of a maintenance      order by committal under—

                              (i)   section 5 of the Debtors Act; or

                             (ii)   rules 64 and 65 of the Matrimonial Causes Rules; or

                    (b)  in Magistrate’s Court for the enforcement of a maintenance order under section 82 of the Summary Courts Act,

the Court may make an attachment of earnings order to secure payments under the maintenance order.

(iii) Judgment Summons(iv) Writs of Execution/Seizure & Sequestration of Property(b) Magistrate’s Court

Part 38

Enforcement

38.1 This part deals with the enforcement of orders for financial relief.

Affidavit verifying the amount due under an order38.2 Before any step is taken to enforce a sum alleged to be due under an order for financial relief except where an application for an attachment of earnings order is made at the hearing when the financial order was made the applicant shall file an affidavit showing how the sum claimed to be due is calculated.

Enforcement 38.3 Any sum shown to be due under an affidavit filed under rule 38.2 may be enforced in the same way as any judgment or order for a sum of money under the Rules of the Supreme Court 1975 or under the Debtors Act, Chap. 8:07.

11. Variation of Maintenance Orders (Hand-out)

(a) High Court(b) Magistrate’s Court(c)an application for neglect to maintain under section

28 of the principal act;

(d) an application to vary, discharge, suspend or revive an order for maintenance of a spouse or child under section 31 of the principal act;

(e) a variation of a maintenance agreement under sections 39 or 40 of the principal act;

(f) maintenance from a deceased's estate under section 41 of the principal act or for the discharge or variation of an order under that section;

(h) an application by a respondent under section 11 of the principal act (financial provision for the respondent where decree based on periods of separation);

(i) an application under Part III of the Wills and Probate Ordinance, Chap. 8. No.2 or Part VIII of the Succession Act, 1981; and

(j) an adjustment or maintenance order under the Cohabitational Relationships Act, 1998.

How to make application -12.2 (1) An application for financial relief shall be made by filing an application in the appropriate practice form.

(2) An application for -

(a) a settlement of property order; or

(b) a variation of settlement order; or

(c) a transfer of property order; or

(a) an avoidance of disposition order; or(b) a matrimonial home order; or(c) an adjustment order under the Cohabitational

Relationships Act, 1998shall state the nature of the settlement, variation or transfer proposed and

identify any property involved.

Evidence in support of application - general12.3 (1) An application shall be supported by an affidavit setting out the income, capital, assets and liabilities of the applicant and the grounds on which the application is made.

(2) Where practicable the affidavit shall be in the appropriate practice form.

(3) When there is in force an order of a court for maintenance of a spouse, cohabitant or child, the applicant shall file a copy of the order.

(4) The applicant may file further evidence in support of the application.

Where to make application12.4 The application shall be filed -

(a) if there are any other proceedings in the High Court for divorce, judicial separation, nullity or financial relief or relating to a child of the family, in the court office in which such proceedings are pending.

(b) if there are no such proceedings, in any court office.

Directions hearing12.5 (1) The general rule is that the court office shall fix a directions hearing in accordance with Part 13 and notice of the date time and place of that hearing shall be endorsed on the application.

(2) However if directions have already been given relating to the application and a hearing date fixed no further directions hearing need be fixed.

Service of application12.6 (1) If there are other proceedings in the High Court for divorce,judicial separation, nullity or financial relief the application may be served in accordance with Part 7 at any address for service given by the respondent to the application.

(2) If there are no such proceedings the application shall be served in accordance with Part 6.

(3) In addition a copy of the application and of any evidence in support shall be served by the applicant on -

(a) in the case of an application for a variation of settlement order, on the trustees of the settlement and the settler if living; and

(b) in the case of an avoidance of disposition order, on the person in whose favour the disposition is alleged to have been made; and

(c) in the case of an application -

(i) to vary a maintenance agreement after the

death of a spouse, former spouse or cohabitant; and

(ii) for maintenance out of the estate of a spouse or former spouse or cohabitant, on the personal representatives of the spouse, former spouse or cohabitant; and

(d) in any case, on any persons whom the court may direct.

(4) In the case of an application for a matrimonial home order under section 56 of the principal act (vesting of tenancy of a matrimonial home) a notice in the appropriate practice form shall be served on the landlord of the dwelling house;

12. Custody & Access (Classroom discussion)

(a) High Court(b) Magistrate’s Court

14. Ancillary Relief—Property Settlement (Jurisdiction-Specific workshop)

(a) Spouses(b) Cohabitants(c) Tools in aid of these applications(d) Enforcement12.

(2) In this Part "an application for financial relief" means any application for financial provision of any nature for a spouse, cohabitant, or child and includes but is not limited to an application for one or more of the following -

(a) an application for -

(vi) a transfer of property order;

(viii) a settlement of property order

under sections 23,24, 25 and 26 of the principal act and any similar applications under other statutes;

(b) an avoidance of disposition order under section 44 of the principal act;

(g) a matrimonial home order under Part IV of the principal act;

How to make application -12.2 (1) An application for financial relief shall be made by filing an application in the appropriate practice form.

(2) An application for -

(a) a settlement of property order; or

(c) a transfer of property order; or

(d) an avoidance of disposition order; or(e) a matrimonial home order; or(f) an adjustment order under the Cohabitational

Relationships Act, 1998shall state the nature of the settlement, variation or transfer proposed and

identify any property involved.

Evidence in support of application - general12.3 (1) An application shall be supported by an affidavit setting out the income, capital, assets and liabilities of the applicant and the grounds on which the application is made.

(2) Where practicable the affidavit shall be in the appropriate practice form.

(4) The applicant may file further evidence in support of the application.

Where to make application12.4 The application shall be filed -

(a) if there are any other proceedings in the High Court for divorce, judicial separation, nullity or financial relief or relating to a child of the family, in the court office in which such proceedings are pending.

(b) if there are no such proceedings, in any court office.

Directions hearing12.5 (1) The general rule is that the court office shall fix a directions hearing in accordance with Part 13 and notice of the date time and place of that hearing shall be endorsed on the application.

(2) However if directions have already been given relating to the application and a hearing date fixed no further directions hearing need be fixed.

Service of application12.6 (1) If there are other proceedings in the High Court for divorce,judicial separation, nullity or financial relief the application may be served in accordance with Part 7 at any address for service given by the respondent to the application.

(2) If there are no such proceedings the application shall be served in accordance with Part 6.

(3) In addition a copy of the application and of any evidence in support shall be served by the applicant on -

(b) in the case of an avoidance of disposition order, on the person in whose favour the disposition is alleged to have been made; and

(4) In the case of an application for a matrimonial home order under section 56 of the principal act (vesting of tenancy of a matrimonial home) a notice in the appropriate practice form shall be served on the landlord of the dwelling house;

Part 8

General Rules about Applications for Court Orders other than Decrees of Divorce etc.8.1 This Part deals with applications for court orders made before or during the course of proceedings. It does not deal with applications for a decree of divorce, judicial separation or nullity, such applications being made by petition in accordance with Part 9. It deals generally with applications for children orders and financial relief orders which are dealt with in more detail by Parts 11 and 12 respectively.

Where to make an application8.3 (1) The general rule is that an application should be made to the court office where the proceedings were issued.

(2) If the proceedings have been transferred to another court office the application should be made to that court office.

Application in writing8.4 (1) The general rule is that an application shall be in writing.

(2) An application may be made orally if -

(a) this is permitted by a rule or practice direction, or

(b) the court dispenses with the requirement for the

application to be made in writing.

Notice of application and evidence in support8.5 (1) The general rule is that the applicant shall give notice of the application to each respondent.

(2) An applicant may make an application without giving notice if this is permitted by -

(a) a rule; or

(b) a practice direction.

(3) Evidence in support of an application is not needed unless it is required by -

(a) a rule; or

(b) a practice direction; or

(c) court order.

(4) Notice of the application shall be included in the form used to make the application.

(5) Where evidence in support is required it shall be given by affidavit.

Time when an application is made8.6 Where an application shall be made within a specified period it is so made if it is received by the court office or made to the court within that period.

What an application for a procedural order shall include8.7 (1) This rule deals with applications for procedural orders made before or during the course of proceedings. It does not deal with applications for orders relating to the custody of or access to children or for financial relief.

(2) An application for a procedural order shall state -

(a) what order the applicant is seeking; and

(b) briefly, why the applicant is seeking the

order.

(3) The applicant shall include with or attach to the application a draft of the order he is seeking.

(4) Either the applicant or his attorney shall certify on the application that he believes any facts stated in the application are true.

Contents of notice of application for procedural order8.8 (1) The notice shall state whether there will be a hearing.

(2) If there is to be a hearing the notice shall state the date time and place of the hearing.

(3) If there is not to be a hearing, the notice shall state how the court will deal with the application.

Service of notice of application8.9 (1) Notice of an application shall be served

(a) forthwith upon issue; and

(b) at least 3 days before the court is to deal with the application.

(2) The notice shall be accompanied by

(a) a copy of the application (where the notice and the application are not contained on the same form); and

(b) any evidence in support; and

(c) a copy of any draft order which the applicant has attached to his application.

(3) The notice shall be served in accordance with Part 7.

Powers of the court in relation to the conduct of an application8.10 (1) The court may -

(a) issue a witness summons requiring a party or other person to attend the court on the hearing of the application.

(b) require the production of documents or things at such a hearing.

(c) question any party or witness at such a hearing.

(2) The court may examine a party or witness -

(a) orally, or

(b) by putting written questions to him and asking him to give written answers to the questions.

(3) Any party may then cross-examine the witness.

(4) The court may exercise any power which it might exercise at a directions hearing.

Consequence of not asking for an order in an application8.11 An applicant may not ask for an order for which he has not asked in his application unless the court permits him to do so.

Applications which may be dealt with without a hearing8.12 (1) The court may deal with an application without a hearing if -

(a) the parties agree that the court should dispose of its application without a hearing; or

(b) the court considers that the application can be dealt with over the telephone or by other means of communication; or

(c) the parties have agreed to the terms of an order and the application (or a copy of the application) is signed by all parties to the application or their attorneys; or

(d) the court does not consider that a hearing would be appropriate.

(2) Where an order is made without a hearing under paragraph (1) (d) either party may apply to set aside the order.

(3) An application under paragraph (2) shall be made within 14 days of the service of the order in question.

Service of application where order made on application made without notice8.13 (1) After the court has disposed of an application made without notice, in addition to serving a copy of any order made, a copy of the application and any evidence in support shall be served on all parties.

(2) When such an application is made the applicant shall file sufficient copies of the application and evidence in support for service on all other parties who may be affected by the order.

(3) Where an urgent application is made without notice and the applicant undertakes to file evidence after the hearing he shall serve copies of the application and evidence on all other parties affected by the order.

Application to set aside or vary order on application made without notice8.14 (1) A respondent to whom notice of an application was not given may apply to the court for any order made on the application to be set aside or varied and for the application to be dealt with again.

(2) A respondent shall make such an application not more than 7 days after the date on which the order was served on him.

(3) An order made on an application of which notice was not given shall contain a statement of the right to make an application under this rule.

Power of the court to proceed in the absence of a party8.15 Where the applicant or any person on whom the notice of application has

been served fails to attend the hearing of the application, the court may proceed in his absence.

Application for leave to present a petition for divorce within 1 year of marriage8.16 (1) An application for leave to present a petition for divorce within one year of the marriage shall be supported by evidence.

(2) The affidavit shall state -

(a) the grounds of the application; and

(b) particulars of the hardship suffered by the petitioner; or

(c) particulars of depravity on the part of the respondent; and

(d) whether any, and if so what, attempts have been made at reconciliation; and

(e) details of any child of the family; and

(f) any circumstances which might assist the court to determine the effect that any order it might make might have on any child of the family.

(3) Rule 9.5 applies to such an application as it does to a petition.

(4) An application under this rule shall be served in accordance with Part 6.

Part 9

Petitions for divorce, judicial separation and nullity

How to commence proceedings for divorce, etc.,9.1 (1) Proceedings for

(a) divorce;

(b) judicial separation;

(c) nullity.

are commenced when the court issues a petition.

(2) A petition may be issued in any court office.

(3) A petition is issued on the date entered on the form by the court office.

(4) The petition may be issued if the petitioner presents to the court office -

(a) the petition; and

(b) the statement of arrangements for children (if any)required by rule 9.6,together, in each case, with sufficient copies for service on all respondents; and

(c) the marriage certificate required by rule 9.5, and

(d) a statement as to reconciliation in the appropriate practice form.

Form of petition9.2 (2) The petition shall be verified by affidavit.

Contents of petition9.3 (1) The petition shall contain such information set out in

Appendix A to these rules as is appropriate to the type of petition issued.

(3) The petition shall state the names and addresses of all persons to be served and whether any such person is a minor or a patient.

(3) The petition shall end with a prayer giving details of the relief sought including -

(a) the nature of the decree that is sought; and

(b) any order sought with regard to the custody of or access to any child of the family; and

(c) any claim for costs.

(4) The petition shall give an address for service for the petitioner within 3 miles of the court office from which it is issued.

(5) The petitioner shall sign the petition and verify by affidavit that the contents are true.

Parties9.4 (1) The person who issues the petition is referred to as 'the petitioner'.

(2) The spouse of the person who issues the petition is referred to in the proceedings based on the petition as 'the respondent'.

(3) Any other named person who is alleged to have committed adultery with the respondent or (in the case of an Answer) the petitioner is called 'the co-respondent' (if male) or 'the second respondent' (if female).

(4) Where the petitioner alleges that the respondent has been guilty of an improper relationship with a named person or of rape upon a person named the petitioner shall apply immediately after filing the petition for directions whether that person should be named as a co-respondent or second respondent.

(5) An application under paragraph (4) may be made without notice but shall be supported by evidence.

Marriage certificate to be filed9.5 (1) The general rule is that a marriage certificate shall be filed with the

petition.

(2) However the court may give permission to issue a petition without a marriage certificate.

(3) An application for permission may be made without notice but shall be supported by evidence.

Statement of arrangements for children9.6 (1) On issuing any petition the petitioner shall file a statement of the existing and proposed arrangements for each relevant child.

(2) That statement shall be in the appropriate practice form.

(3) The statement shall be signed by the petitioner and certified as true.

(4) The statement may also be signed by the respondent spouse if that spouse agrees with the statement.

Service of petition9.7 (1) The petition shall be served in accordance with Part 6.

(2) There shall be served with the petition

(a) the statement of arrangements for the relevant children (if any); and

(b) a blank form of acknowledgment of service; and

(c) a notice of proceedings,

in the appropriate practice forms.

Part 11

Applications relating to children

11.1 This Part deals with applications by any person relating to the welfare of any child (including any application for a paternity order) other than applications dealing solely with financial relief for a child, whether or not -

(a) the child is a child of the family; or

(b) there are divorce, judicial separation or nullity proceedings pending.

How to make a child application11.2 An applicant may apply by filing an application in the appropriate practice

form.

Injunction to restrain any person from removing a child from Trinidad and Tobago etc.,11.3 (1) An application for an injunction to restrain any person from removing a child from Trinidad and Tobago or out of the custody, care and control of any person named in the application may be made without notice.

(2) It shall however be supported by evidence.

Where to make an application11.4 The application shall be filed -

(a) if there are any other proceedings in the High Court for divorce, judicial separation, nullity or financial relief or relating to the child, in the court office in which such proceedings are pending.

(b) if there are no such proceedings, in any court office.

Other proceedings11.5 Where at any time while an application under this part is pending there are proceedings relating to the child in any other court the applicant shall file a statement of such proceedings.

Directions hearing11.6 (1) The general rule is that the court office shall fix a directions hearing in accordance with Part 13 and notice of the date time and place of that hearing shall be endorsed on the application.

(2) However if directions have already been given relating to the application no further directions hearing need be fixed.

Service of application

11.7 (1) If there are other proceedings in the High Court for divorce, judicial separation, nullity or relating to the child the application may be served in accordance with Part 7 at any address for service given by the respondent to the application.(2) If there are no such proceedings the application shall be served in

accordance with Part 6.

Answer to application11.8 The respondent may file an answer to the application in the appropriate practice form.

Service of evidence

11.9 (1) Any party filing evidence shall immediately serve a copy of that evidence on all other parties.

(2) Any evidence which contains an allegation of adultery or an improper association with a named person shall be served on that person together with a notice in the appropriate practice form.

(3) Any person served with a notice under paragraph (2) may apply to intervene in the proceedings.

Appointment of probation officer

11.10 (1) At any directions hearing the court may consider whether a probation officer shall be appointed to inquire into the application and report to the court.

(2) The court may at any time call for a report from a probation officer on any matter relating to the welfare of any child.

(3) Any report by the probation officer shall be addressed to the court and filed at the court office.

(4) Unless a judge orders otherwise the court office shall send a copy of the report to all parties.

(5) All copies of the report shall be endorsed with a notice to the parties that the report is to be seen only by the parties and their attorneys and that disclosure to any other person without the permission of the court amounts to contempt of court.

(6) The probation officer shall be given notice of any hearing of any proceedings with regard to which he has reported to the court.

(7) The court office shall also send to the probation officer a copy of -

(a) any application or evidence filed; and

(b) any order made by the court,

in those proceedings.

Evidence of probation officer11.11 (1) The court may take into account the contents of a report

by a probation officer without that officer being sworn or giving oral evidence.

(2) The court may direct that a probation officer attend court to give evidence.

(3) Such a direction may be made on or without an application by a party.

(4) Where the probation officer gives oral evidence he shall be sworn and may be cross-examined by any party.

Application by probation officer for discharge or variation of supervision order

11.12 (1) An application by a probation officer for discharge or variation of a supervision order under section 50 of the principal act may be made without notice.

(2) The court may -

(a) make an order in accordance with the application; or

(b) fix a hearing of the application and give notice to the parents of the child, the probation officer and any guardian ad litem.

Court may utilise services of other persons11.13 Where the court considers that it is appropriate to obtain the services

of a probation officer, the court may nonetheless utilize the services of

(a) any person whose qualifications are similar to those of a probation officer and who either-

(i) is a public officer; or(ii) is employed on contract by the State; or

(b) with the consent of the parties and the court, a private mediator, counsellor or other professional paid by the parties; or

(c) mediators paid by the state

Mediator may not be compelled to give evidence or to report

11.14 Notwithstanding rule 11.13, where the court utilises the services of a mediator the court may not compel a mediator to give evidence or submit a report save that a report shall be made to the court as to whether or not the mediation resulted in agreement.

Part 23

Affidavits

Affidavit evidence23.1 (1) The court may require evidence to be given by affidavit.

(2) In this part "deponent" means the maker of the affidavit.(3) Whenever an affidavit is used in evidence, any party may

apply to the court for an order requiring the maker of the affidavit to attend to be cross-examined.

(4) If the deponent does not attend as required by the court order, his affidavit may not be used as evidence unless the court permits.

(5) The general rule is that an affidavit shall be filed before it may be used in any proceedings.

(6) In a case of urgency the court may however make an order on an affidavit which has not been filed if the party tendering it undertakes to file it before the order is drawn up.

Form of affidavits23.2 Every affidavit shall -

(a) be headed with the title of the proceedings; and

(b) be in the first person and state the name, address and occupation of the deponent and, if more than one, of each of them; and

(c) state if any deponent is employed by a party to the proceedings; and

(d) be divided into paragraphs numbered consecutively; and

(e) be signed by the deponent or deponents; and

(f) be endorsed with the name of the attorney, if any, for the party on whose behalf it is filed.

(g) be marked on the top right hand corner of the affidavit with-

(i) the party on whose behalf it is filed; and

(ii) the initials and surname of the deponent; and

(iii) (where the deponent swears more than one affidavit in any proceedings), the number of the affidavit in relation to the deponent; and

(iv) the identifying reference of each exhibit referred to in the affidavit; and

(v) the date when sworn; and

(vi) the date when filed.

Example:

"Respondent: N. Berridge: 2nd: NB 3 and 4:1.10.98: 3.10.98."

Contents of affidavit23.3 (1) The general rule is that an affidavit may contain only such facts as the deponent is able to prove from his own knowledge.

(2) However an affidavit may contain statements of information and belief -

(a) where any of these Rules so allows; and

(b) where it is for use in any procedural or interlocutory application, provided that the source of such information and the ground of such belief are stated in the affidavit.

(3) The court may order that any scandalous, irrelevant or otherwise oppressive matter be struck out of any affidavit.

(4) No affidavit containing any alteration may be used in evidence unless all such alterations have been initialled by the person before whom the affidavit was sworn.

Documents to be used in conjunction with affidavit23.4 (1) Any documents to be used in conjunction with an affidavit shall be exhibited to it.

(2) Where there are more than one such document they may be included in a bundle which is in date or some other convenient order and is properly paginated.

(3) Clearly legible photographic copies of original documents may be exhibited, provided that the originals are made available for inspection by other parties before the hearing and by the court at the hearing.

(4) Each exhibit or bundle of exhibits should be marked in accordance with rule 23.2(g).

Making of affidavits

23.5 (1) All affidavits shall be sworn or affirmed before a Commissioner of Affidavits or if sworn or affirmed abroad, before a Notary Public.

(2) No affidavit may be admitted into evidence if sworn or affirmed before the attorney of the party on whose behalf it is to be used or before any agent, partner or associate of such attorney.

(3) Where it appears that the deponent is illiterate or blind, the person before whom the affidavit is made shall certify in the jurat that -

(a) the affidavit was read in his presence to the deponent; and

(b) the deponent seemed perfectly to understand it; and

(a) the deponent made his signature or mark in his presence.

Service of affidavit23.6 (1) The general rule is that a party who is giving evidence by affidavit shall serve a copy on every other party.

(2) This applies whether the affidavit was made in the proceedings or in some other proceedings.

(3) A party does not need to serve a copy of an affidavit if he wishes to use the affidavit in support of an application to be made without notice.

FORM 10:APPLICATION RELATING TO CHILD(REN)

The Republic of Trinidad & TobagoIn the High Court of Justice Petition/

Application No.

Family

Between

A.B.

Applicant

And

C.B.

Respondent

APPLICATION RELATING TO CHILD(REN)

FULL NAMES OF EACH CHILD TO WHOM THIS APPLICATION RELATES:

1. THE APPLICANT

Give your name, address and telephone number date of birth,

Your attorney's name,

address telephone number FAX number

2. THE CHILDREN.

State the full names, date of birth or age and your relationship to each child.

State the order that you seek.

3. OTHER CASES AFFECTING THE CHILDREN

State with regard to each child whether there have been any previous proceedings in ANY court.

Give name of court, date, type of proceedings and order made.

Attach copy orders wherever possible

4. RESPONDENTS TO THE APPLICATION

Give the full names, addresses and dates of birth and age of each respondent to the application and state their relationship to each child.

5. CARE OF THE CHILDREN

State with reference to each child:

current address, how long the child has lived there whether it is his or her normal address who cares for the child whether there are other children there and, if so, the child's relationship to the other children.

6. OTHER ADULTS

State with regard to each child whether there is any adult other than a parent living with the child,

whether that adult lives there permanently.

whether s/he has been involved in any court proceedings relating to the child

7. THE ORDERS YOU SEEK.

State briefly the orders that you seek in respect of each child - custody, access or other.

8. YOUR REASONS FOR MAKING THE APPLICATION

Set out briefly your reasons, you may be able to amplify them in writing later.

Signed.

Dated

NOTICE OF DIRECTIONS HEARINGDirections will be given relating to this application at the

directions hearing on (date) at (time) at.

[Directions have already been given at the directions hearing on ]

The Court Office is at [], telephone number xxx.xxxx, FAX number xxx.xxxx. The office is

open between [8.00 am and 4.00 p.m. every days except Public Holidays and on such other days as the Court Office is closed.

FORM 8:FINANCIAL APPLICATION FORM WITH EVIDENCE

The Republic of Trinidad & TobagoIn the High Court of Justice Petition/

Application No.

Family

Between

A.B.

Applicant

And

C.B.

Respondent

APPLICATION FOR FINANCIAL RELIEF

The applicant applies to the Court for an order for the following financial provision for [her(him)self] [her(him)self and the children named below], [the children named below] -

(Details of order sought)

(full names and dates of birth of any children on whose behalf order sought)

Signed: (Applicant in person)

(Attorney for the Applicant)

whose address for service is as follows:

Postal Address:

FAX number:

Telephone number:

--------------------------------------------------------------------------------------------------------------

NOTICE OF DIRECTIONS HEARING

Directions will be given relating to this application at the directions hearing on (date) at (time) at .

[Directions have already been given at the directions hearing on ]

The Court Office is at [], telephone number xxx.xxxx, FAX number xxx.xxxx. The office is

open between [8.00 am and 4.00 p.m. every days except Public Holidays and on such days as the Court Office is closed.