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ORDER 36

TRIALS BEFORE, AND INQUIRIES BY, REFEREES

Power to Order Trial before Referee

1. In any cause or matter-

(a) if all the parties interested who are not under disability consent; or

(b) if the cause or matter requires any prolonged examination of documents or any scientific or local investigation which cannot in the opinion of the Court conveniently be conducted by the Court through its other ordinary officers; or

the Court may at any time order the whole cause or matter, or any question or issue of fact arising therein, to be tried before a referee agreed on by the parties, or in default of agreement, before a referee appointed by the Court.

Reference to Referee of Question of Fact for Inquiry, etc.

2. In any cause or matter the Court may refer to a referee for inquiry and report any question or issue of fact arising therein; and, unless the Court otherwise orders, the further consideration of the cause or matter shall stand adjourned until the receipt of the referee’s report.

Report on Reference Under Rule 2

3. (1) The report made by a referee in pursuance of a reference under rule 2 shall be made to the Court and notice thereof served on the parties to the reference.

(2) The referee may in his report submit any question arising therein for the decision of the Court or make a special statement of facts from which the Court may draw such inferences as it thinks fit.

(3) On the receipt of the referee’s report, the Court may-

(a) adopt the report in whole or in part;

(b) vary the report;

(d) remit the whole or any part of the question or issue originally referred to him for further consideration by him or any other referee; or

(e) decide the question or issue originally referred to him on the evidence taken before him, either with or without additional evidence.

(4) When the report of the referee has been made, an application to vary the report or remit the whole or any part of the question or issue originally referred may be made on the hearing by the Court of the further consideration of the cause or matter, after giving not less than 4 days’ notice thereof, and any other application with respect to the report may be made on that hearing without notice.

(5) Where on a reference under rule 2 the Court orders that the further consideration of the cause or matter in question shall not stand adjourned until the receipt of the referee’s report, the order may contain directions with respect to the proceedings on the receipt of the report, and the foregoing provisions of this rule shall have effect subject to any such directions.

Powers, etc., of Referees

4. (1) Subject to any directions contained in the order referring any business to a referee-

(a) the referee shall for the purpose of disposing of any cause or matter (including any interlocutory application therein) or any other business referred to him have the same jurisdiction, powers and duties (including discretion as to costs but not including the power of committal) as a Judge, exercisable or, as the case may be, to be performed as nearly as circumstances admit in the like cases, in the like manner and subject to the like limitations;

(b) the same process to the process and witnesses whom the referee may desire to have examined shall issue as in ordinary actions; and persons not attending and complying with the process or making any other default, or refusing to give their testimony or being guilty of any contempt to the referee during the trial or other proceedings shall after due enquiry by the Court, be subject to the like disadvantages, penalties and punishments by order of the Court on the representation of the referee, as they would incur for the same offences in actions tried before the Court; and

(c) every trial and all other proceedings before a referee shall, as nearly as circumstances admit, be admitted in the like manner as like proceedings before a judge.

(2) Without prejudice to the generality of paragraph (1), but subject to any such directions as are mentioned therein, a referee before whom any cause or matter is tried shall have the like powers as the Court with respect to claims relating to or connected with the original subject-matter of the cause or matter by any party thereto against any other person, and Order 15, rule 5(2) and Order 16 shall with any necessary modifications apply in relation to any such claim accordingly.

(3) A referee may hold any trial or any other proceeding before him at any place which appears to him to be convenient and may adjourn the proceedings from place to place as he thinks fit.

Restriction of Power to Order Trial before Referee

5. Notwithstanding anything in this Order, no cause or matter to which the Crown is a party, or any question or issue therein shall be ordered to be tried before a referee except with the consent of the Attorney General, and no question or issue in such cause or matter shall be referred for inquiry and report to a referee except with such consent.