Crown Proceedings Act
2008 Revised Edition
CAP. 7.12
CROWN PROCEEDINGS ACT
Crown Proceedings Act CAP. 7.12 Arrangement of Sections
2008 Revised Edition
Page 3
CROWN PROCEEDINGS ACT
Arrangement of Sections
Section
PART I - PRELIMINARY 5
1 Short title................................................................................................................ 5
2 Interpretation.......................................................................................................... 5
PART II - SUBSTANTIVE LAW 6
3 Right to sue the Crown .......................................................................................... 6
4 Liability of the Crown in tort ................................................................................. 6
5 Provisions as to industrial property........................................................................ 7
6 Application of law as to indemnity, contribution, joint and several
tortfeasors, and contributory negligence................................................................ 8
7 Liability in respect of Government vessels............................................................ 8
8 Liability in connection with postal articles ............................................................ 8
9 Provisions relating to the armed forces................................................................ 10
10 Saving in respect of acts done under prerogative and statutory powers .............. 12
PART III - JURISDICTION AND PROCEDURE 12
11 Civil proceedings in the High Court .................................................................... 12
12 Civil proceedings in magistrate's courts and lands courts.................................... 13
13 Civil proceedings in island courts........................................................................ 13
14 Interpleader .......................................................................................................... 13
15 Parties to proceedings .......................................................................................... 13
16 Service of documents........................................................................................... 13
17 Removal and transfer of proceedings .................................................................. 14
18 Nature of relief..................................................................................................... 14
19 Costs in civil proceedings to which the Crown is a party .................................... 15
20 Appeals and stay of execution ............................................................................. 15
21 Scope of Part III ................................................................................................... 15
Arrangement of Sections CAP. 7.12 Crown Proceedings Act
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PART IV - JUDGMENTS AND EXECUTION 16
22 Interest on debts, damages and costs....................................................................16
23 Satisfaction of orders against the Crown..............................................................17
24 Execution by the Crown.......................................................................................18
25 Attachment of moneys payable by the Crown .....................................................18
PART V - MISCELLANEOUS AND SUPPLEMENTAL 19
26 Discovery .............................................................................................................19
27 Exclusion of proceedings in rem against the Crown............................................19
28 Limitation of actions ............................................................................................20
29 Application to the Crown of certain written laws ................................................20
30 No abatement on demise of the Crown ................................................................20
31 Abolition of certain writs .....................................................................................20
32 Rules of court .......................................................................................................20
33 Pending proceedings ............................................................................................21
34 Financial provisions .............................................................................................22
35 Statutes ceasing to apply ......................................................................................22
36 Savings .................................................................................................................22
SCHEDULE 1 24
PROCEEDINGS ABOLISHED BY THIS ACT 24
SCHEDULE 2 25
STATUTES NO LONGER APPLYING IN TUVALU 25
Supporting Documents
ENDNOTES 26
Crown Proceedings Act CAP. 7.12 Section 1
2008 Revised Edition
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CROWN PROCEEDINGS ACT
AN ACT TO AMEND THE LAW RELATING TO THE CIVIL
LIABILITIES OF THE CROWN AND TO CIVIL PROCEEDINGS BY AND
AGAINST THE CROWN, TO AMEND THE LAW RELATING TO THE
CIVIL LIABILITIES OF PERSONS OTHER THAN THE CROWN IN
CERTAIN CASES INVOLVING THE AFFAIRS OR PROPERTY OF THE
CROWN AND FOR MATTERS CONNECTED WITH THE MATTERS
AFORESAID1
Commencement [30th August 1974]
PART I - PRELIMINARY
1 Short title
This Act may be cited as the Crown Proceedings Act.
2 Interpretation
(1) Any reference in this Act to the provisions of this Act shall unless the context
otherwise requires include a reference to rules of court made for the purposes
of this Act.
(2) In this Act unless the context otherwise requires —
“agent” when used in relation to the Crown includes an independent
contractor employed by the Crown;
“civil proceedings” includes proceedings in the High Court, magistrate's
courts or lands courts for the recovery of fines and penalties but does not
include proceedings of a nature such as in England are taken on the Crown
side of the Queen's Bench Division of Her Majesty's High Court of Justice;
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“Government vessel” means any vessel of which the beneficial interest is
vested in Her Majesty in right of Her Majesty's Government in Tuvalu or
which is for the time being demised or sub demised to or in the exclusive
possession of Her Majesty in that right;
“officer” in relation to the Crown includes any public officer;
“order” includes a judgment, decree, rule, award or declaration;
“prescribed” means prescribed by rules of court;
“proceedings against the Crown” includes any claim by way of set-off or
counterclaim raised in proceedings by the Crown;
“rules of court” means rules made by the authority having for the time being
the power to make rules and orders regulating the practice and procedure of
the High Court, magistrate's courts or lands courts as the case may be;
“statutory duty” means any duty imposed by or under any written law.
(3) Any reference in Part IV or Part V to civil proceedings by or against the
Crown or to civil proceedings to which the Crown is party shall be construed
as including a reference to civil proceedings to which the Attorney-General or
any Government department or any public officer as such is a party:
Provided that the Crown shall not for the purposes of Part IV or Part V be
deemed to be party to any proceedings by reason only that they are brought by
the Attorney-General upon the relation of some other person.
PART II - SUBSTANTIVE LAW
3 Right to sue the Crown
Where any person has a claim against the Crown after the commencement of this
Act and if this Act had not been enacted the claim might have been enforced subject
to the grant of the Governor-General's fiat by petition of right or might have been
enforced by a proceeding provided by any statutory provisions ceasing to have effect
in Tuvalu by virtue of this Act then subject to the provisions of this Act the claim
may be enforced as of right and without the fiat of the Governor-General by
proceedings taken against the Crown for that purpose in accordance with the
provisions of this Act.
4 Liability of the Crown in tort
(1) Subject to the provisions of this Act the Crown shall be subject to all those
liabilities in tort to which if it were a private person of full age and capacity it
would be subject —
(a) in respect of torts committed by its servants or agents;
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(b) in respect of any breach of those duties which a person owes to his
servants or agents at common law by reason of being their employer;
and
(c) in respect of any breach of the duties attaching at common law to the
ownership, occupation, possession or control of property:
Provided that no proceedings shall lie against the Crown by virtue of
paragraph (a) in respect of any act or omission of a servant or agent of the
Crown unless the act or omission would apart from the provisions of this Act
have given rise to a cause of action in tort against that servant or agent or his
estate.
(2) Where the Crown is bound by a statutory duty which is binding also upon
persons other than the Crown and its officers then subject to the provisions of
this Act the Crown shall in respect of a failure to comply with that duty be
subject to all those liabilities in tort (if any) to which it would be so subject if
it were a private person of full age and capacity.
(3) Where any functions are conferred or imposed upon an officer of the Crown
as such either by any rule of the common law or by any written law and that
officer commits any tort while performing or purporting to perform those
functions, the liabilities of the Crown in respect of the tort shall be such as
they would have been if those functions had been conferred or imposed solely
by virtue of instructions lawfully given by the Crown.
(4) Any written law which negatives or limits the amount of the liability of any
Government department or officer of the Crown in respect of any tort
committed by that department or officer shall in the case of proceedings
against the Crown under this section in respect of a tort committed by that
department or officer apply in relation to the Crown as it would have applied
in relation to that department or officer if the proceedings against the Crown
had been proceedings against that department or officer.
(5) No proceedings shall lie against the Crown by virtue of this section in respect
of anything done or omitted to be done by any person while discharging or
purporting to discharge any responsibilities of a judicial nature vested in him,
or any responsibilities which he has in connection with the execution of
judicial process.
5 Provisions as to industrial property
(1) Where after the commencement of this Act any servant or agent of the Crown
infringes a patent or infringes a registered trade mark or infringes any
copyright (including any copyright in a design subsisting under the Registered
Designs Acts 1949 to 1961 of the United Kingdom as applied to Tuvalu by
the United Kingdom Designs Protection Act)2 and the infringement is
committed with the authority of the Crown then subject to the provisions of
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this Act civil proceedings in respect of such infringement shall lie against the
Crown.
(2) Nothing in subsection (1) or in any other provision of this Act shall affect the
rights of any Government department under section 46 of the Patents Act
1949 or section 12 of and the First Schedule to the Registered Designs Act
1949 of the United Kingdom.
(3) Save as is expressly provided by this section no proceedings shall lie against
the Crown by virtue of this Act in respect of the infringement of a patent, in
respect of the infringement of a registered trade mark or in respect of the
infringement of any such copyright as is mentioned in subsection (1).
6 Application of law as to indemnity, contribution, joint and several
tortfeasors, and contributory negligence
(1) Where the Crown is subject to any liability by virtue of this Part the law
relating to indemnity and contribution shall be enforceable by or against the
Crown in respect of the liability to which it is so subject as if the Crown were
a person of full age and capacity.
(2) Without prejudice to the effect of subsection (1), Part II of the Law Reform
(Married Women and Tortfeasors) Act 1935 (which relates to proceedings
against and contribution between joint and several tortfeasors) shall bind the
Crown.
(3) Without prejudice to the general effect of section 3, the Law Reform
(Contributory Negligence) Act 1945 (which amends the law relating to
contributory negligence) shall bind the Crown.
7 Liability in respect of Government vessels
The provisions of the Merchant Shipping Act3, or regulations made under that Act
which limit the amount of the liability of the owners of ships or which negative such
liability shall with any necessary modifications apply for the purpose of limiting or
negativing, as the case may be, the liability of the Crown in respect of vessels owned
by the Crown; and any provision of that Act or those regulations which relates to or
is ancillary to or consequential on the provisions so applied shall have effect
accordingly.
8 Liability in connection with postal articles
(1) Subject as hereinafter provided no proceedings in tort shall lie against the
Crown for anything done or omitted to be done in relation to a postal article
by any person while employed as a servant or agent of the Crown or for
anything done or omitted to be done in relation to any telephonic
communication by any person while so employed; nor shall any public officer
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be subject except at the suit of the Crown to any civil liability for any of the
matters aforesaid.
(2) Proceedings shall lie against the Crown under this subsection in respect of
loss of or damage to a registered inland postal article in so far as the loss or
damage is due to any wrongful act done or any neglect or default committed
by a person employed as a servant or agent of the Crown while performing or
purporting to perform his functions as such in relation to the receipt, carriage,
deliver or other dealing with the article:
Provided that —
(a) no proceedings shall lie under this subsection in respect of any postal
article registered before the commencement of this Act;
(b) the amount recoverable in any proceedings under this subsection shall
not exceed the market value of the postal article in question (excluding
the market value of any message or information which it bears) at the
time when the cause of action arises;
(c) the amount recoverable in any such proceedings shall not in any event
exceed the maximum amount which under the Post Office Act4 is
available for compensating the persons aggrieved having regard to the
fee paid in respect of the registration of the article; and
(d) the Crown shall not be liable under this subsection in respect of any
postal article unless such conditions as are prescribed by the Post Office
Act in relation to registered inland postal articles have been complied
with in relation to that article.
For the purposes of any proceedings under this subsection it shall be
presumed until the contrary be shown on behalf of the Crown that the loss of
or damage to the postal article was due to some wrongful act done or some
neglect or default committed by a person employed as a servant or agent of
the Crown while performing or purporting to perform his functions as such in
relation to the receipt, carriage, delivery or other dealing with the article.
(3) No relief shall be available under subsection (2) except upon a claim by the
sender or addressee of the postal article in question; and the sender or
addressee of the article shall be entitled to claim any relief available under the
said subsection in respect of the article whether or not he is the person
damnified by the injury complained of and to give a good discharge in respect
of all claims in respect of the article under the said subsection:
Provided that where the court is satisfied upon an application by any person
who is not the sender or addressee of the article that the sender and the
addressee are unable or unwilling to enforce their remedies in respect of the
article under the said subsection the court may upon such terms as to security
for costs or otherwise as the court thinks just allow that other person to bring
proceedings under the said subsection in the name of the sender or addressee
of the article.
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Any reference in this subsection to the sender or addressee of the postal article
includes a reference to his personal representatives.
(4) Where by virtue of subsection (3) any person recovers any money or property
which apart from that subsection would have been recoverable by some other
person, the money or property so recovered shall be held on trust for that
person.
(5) Regulations may be made under section 36 of the Post Office Act for
prescribing the conditions to be observed for the purpose of this section in
relation to registered inland postal articles.
(6) In this section —
“postal article” has the meaning assigned to “postal packet” by section 2 of
the Post Office Act but does not include a telegram or radio-telegram;
“inland postal article” means any article which is posted in Tuvalu for
delivery in Tuvalu to the person to whom it is addressed.
(7) Any reference in this section to a postal article shall be construed as including
a reference to the wrapping or container thereof, and the contents therein.
9 Provisions relating to the armed forces
(1) Nothing done or omitted to be done by a member of the armed forces of the
Crown while on duty as such shall subject either him or the Crown to liability
in tort for causing the death of another person or for causing personal injury to
another person in so far as the death or personal injury is due to anything
suffered by that other person while he is a member of the armed forces of the
Crown if —
(a) at the time when that thing is suffered by that other person he is either
on duty as a member of the armed forces of the Crown or is though not
on duty as such on any land, premises, vessel, aircraft or vehicle for the
time being used for the purposes of the armed forces of the Crown; and
(b)
(i) where that other person is a member of the armed forces of the
Crown in right of Her Majesty's Government in the United
Kingdom the Minister responsible for the administration of
pensions in the United Kingdom certifies that his suffering that
thing has been or will be treated as attributable to service for the
purposes of entitlement to an award under the Royal Warrant,
Order in Council or Order of Her Majesty relating to the
disablement or death of members of the force of which he is a
member;
(ii) where that other person is a member of the armed forces of the
Crown in right of Her Majesty's Government in Tuvalu the
Governor-General certifies that his suffering that thing has been
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or will be treated as attributable to service for the purposes of
entitlement to a gratuity or pension under any written law
relating to the disablement or death of members of the force of
which he is a member:
Provided that this subsection shall not exempt a member of the said forces
from liability in tort in any case in which the court is satisfied that the act or
omission was not connected with the execution of his duties as a member of
those forces.
(2) No proceedings in tort shall lie against the Crown for death or personal injury
due to anything suffered by a member of the armed forces of the Crown if —
(a) that thing is suffered by him in consequence of the nature or condition
of any such land, premises, vessel, aircraft or vehicle as aforesaid or in
consequence of the nature or condition of any equipment or supplies
used for the purposes of those forces; and
(b)
(i) in the case of a member of the armed forces of the Crown in right
of Her Majesty's Government in the United Kingdom, the
Minister responsible for the administration of pensions in the
United Kingdom certifies as mentioned in subsection (1);
(ii) in the case of a member of the armed forces of the Crown in right
of Her Majesty's Government in Tuvalu the Governor-General
certifies as mentioned in subsection (1),
nor shall any act or omission of an officer of the Crown subject him to
liability in tort for death or personal injury in so far as the death or the
personal injury is due to anything suffered by a member of the armed
forces of the Crown being a thing as to which the conditions aforesaid
are satisfied.
(3) The Governor-General if satisfied that it is the fact —
(a) that a person was or was not on any particular occasion on duty as a
member of the armed forces of the Crown in right of Her Majesty's
Government in Tuvalu; or
(b) that at any particular time any land, premises, vessel, aircraft, vehicle,
equipment or supplies was or was not or were or were not used for the
purposes of the said forces,
may issue a certificate certifying that to be the fact and any such certificate
shall for the purposes of this section be conclusive as to the fact which it
certifies.
(4) A certificate of the Ministry of Defence or the Secretary of State —
(a) that a person was or was not on any particular occasion on duty as a
member of the armed forces of the Crown in right of Her Majesty's
Government in the United Kingdom; or
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(b) that at any particular time any land, premises, vessel, aircraft, vehicle,
equipment or supplies was or was not or were or were not used for the
purposes of the said forces,
shall for the purposes of this section be conclusive as to the fact which it
certifies.
(5) For the purposes of this section, “member of the armed forces of the Crown”
unless the context otherwise requires means a member of the armed forces of
the Crown in right of Her Majesty's Government in Tuvalu or in right of Her
Majesty's Government in the United Kingdom.
(6) Nothing in this section shall be deemed by implication or otherwise to confer
any right of action against the Crown in right of Her Majesty's Government in
the United Kingdom.
10 Saving in respect of acts done under prerogative and statutory powers
(1) Nothing in this Part shall extinguish or abridge any powers or authorities
which if this Act had not been enacted would have been exercisable by virtue
of the prerogative of the Crown or any powers or authorities conferred on the
Crown or on the Governor-General by any statute or written law and in
particular nothing in this Part shall extinguish or abridge any powers or
authorities exercisable by the Crown whether in time of peace or of war for
the purpose of the defence of the realm or of training or maintaining the
efficiency of any of the armed forces of the Crown in right of Her Majesty's
government in the United Kingdom or in Tuvalu.
(2) Where in any proceedings under this Act it is material to determine whether
anything was properly done or omitted to be done in the exercise of the
prerogative of the Crown the Governor-General in his discretion may if
satisfied that the act or omission was necessary for any such purpose as is
mentioned in subsection (1) issue a certificate to the effect that the act or
omission was necessary for that purpose; and the certificate shall in those
proceedings be conclusive as to the matter so certified.
PART III - JURISDICTION AND PROCEDURE
11 Civil proceedings in the High Court
Subject to the provisions of this Act all such civil proceedings by or against the
Crown as are mentioned in Schedule 1 are hereby abolished and all civil
proceedings by or against the Crown in the High Court shall be instituted and
proceeded with in accordance with rules of court applicable to that court.
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12 Civil proceedings in magistrate's courts and lands courts
(1) Subject to the provisions of this Act and to any written law limiting the
jurisdiction of magistrate's courts or lands courts (whether by reference to the
subject matter of the proceedings to be brought or the amount sought to be
recovered in the proceedings or otherwise) any civil proceedings by or against
the Crown may be instituted in a magistrate's court or a lands court.
(2) Any proceedings by or against the Crown in a magistrate's court or a lands
court shall be instituted and proceeded with in accordance with rules of court
applicable to such court.
13 Civil proceedings in island courts
Nothing in this Act contained shall be construed to permit any person to institute
proceedings against the Crown in an island court but proceedings may be instituted
by the Crown in an island court.
14 Interpleader
The Crown may obtain relief by way of interpleader proceedings and may be made a
party to such proceedings in the same manner in which a subject may obtain relief
by way of such proceedings or be made a party thereto; and all rules of court relating
to interpleader proceedings shall subject to the provisions of this Act have effect
accordingly.
15 Parties to proceedings
(1) Except where otherwise expressly provided by some other written law civil
proceedings by or against the Crown instituted under the provisions of this
Act shall be instituted by or against the Attorney-General.
(2) No proceedings instituted in accordance with this Part by or against the
Attorney-General shall abate or be affected by any change in the person
holding the office of Attorney-General.
16 Service of documents
All documents required to be served on the Crown for the purpose of or in
connection with any civil proceedings by or against the Crown shall be served upon
the Attorney-General or upon such other public officer or Government department
as may by any written law be expressly authorised to institute or defend the
proceedings in question on behalf of the Crown.
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17 Removal and transfer of proceedings
(1) If in a case where proceedings are instituted against the Crown in a
magistrate's court or in the Senior Magistrate's Court an application in that
behalf is made by the Crown to the High Court and there is produced to the
High Court a certificate of the Attorney-General to the effect that the
proceedings may involve an important question of law or may be decisive of
other cases arising out of the same matter or are for other reasons more fit to
be tried in the High Court the proceedings shall be removed into the High
Court.
(2) Subsection (1) shall also apply in a case where proceedings are instituted
against the Crown in a magistrate's court as if a reference to the High Court
were a reference to the Senior Magistrate's Court.
(3) Where any proceedings have been removed into the High Court or the Senior
Magistrate's Court pursuant to subsection (1) or (2) and it appears to that court
that the removal has occasioned additional expense to the person by whom the
proceedings are brought that court may take account of the additional expense
so occasioned in exercising its powers in regard to the award of costs.
(4) Without prejudice to the rights of the Crown under subsection (1) all written
laws relating to the removal or transfer of proceedings between magistrate's
courts, the Senior Magistrate's Court, lands courts and the High Court shall
apply in relation to proceedings against the Crown:
Provided that an order for the transfer to a magistrate's court or the Senior
Magistrate's Court of any proceedings against the Crown in the High Court
shall not be made without the consent of the Crown.
18 Nature of relief
(1) In any civil proceedings by or against the Crown the court shall subject to the
provisions of this Act have power to make all such orders as it has power to
make in proceedings between subjects and otherwise to give such appropriate
relief as the case may require:
Provided that —
(a) where in any proceedings against the Crown any such relief is sought as
might in proceedings between subjects be granted by way of injunction
or specific performance the Court shall not grant an injunction or make
an order for specific performance but may in lieu thereof make an order
declaratory of the rights of the parties; and
(b) in any proceedings against the Crown for the recovery of land or other
property the court shall not make an order for the recovery of the land
or the delivery of the property but may in lieu thereof make an order
declaring that the plaintiff is entitled as against the Crown to the land or
property or to the possession thereof.
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(2) The court shall not in any civil proceedings grant any injunction or make any
order against any officer of the Crown if the effect of granting the injunction
or making the order would be to give any relief against the Crown which
could not have been obtained in proceedings against the Crown.
19 Costs in civil proceedings to which the Crown is a party
In any civil proceedings or arbitration to which the Crown is a party the costs of and
incidental to the proceedings shall be awarded in the same manner and on the same
principles as in cases between subjects and the court or arbitrator shall have power
to make an order for the payment of costs by or to the Crown accordingly:
Provided that —
(a) in the case of proceedings to which by reason of any written law or
otherwise the Attorney-General is authorised to be made a party the
court or arbitrator shall have regard to the nature of the proceedings and
the character and circumstances in which the Attorney-General appears
and may in the exercise of its or his discretion order any other party to
the proceedings to pay the costs of the Attorney-General whatever may
be the result of the proceedings; and
(b) nothing in this section shall affect the power of the court or arbitrator to
order or any written law providing for the payment of costs out of any
particular fund or property or any written law expressly relieving any
Government department or officer of the Crown of the liability to pay
costs.
20 Appeals and stay of execution
Subject to the provisions of this Act all rules of court and other written law relating
to appeals and stay of execution shall with any necessary modifications apply to
civil proceedings by or against the Crown as they apply to proceedings between
subjects.
21 Scope of Part III
(1) Subject to the provisions of this section any reference in this Part to civil
proceedings by the Crown shall be construed as a reference to the following
proceedings only —
(a) proceedings for the enforcement or vindication of any right or the
obtaining of any relief which if this Act had not been enacted might
have been enforced or vindicated or obtained by any such proceedings
as are mentioned in paragraph 1 of Schedule 1;
(b) proceedings for the enforcement or vindication of any right or the
obtaining of any relief which if this Act had not been enacted might
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have been enforced or vindicated or obtained by an action at the suit of
any Government department or any officer of the Crown as such;
(c) all such proceedings as the Crown is entitled to bring by virtue of this
Act,
and the expression “civil proceedings by or against the Crown” shall be
construed accordingly.
(2) Subject to the provisions of this section, any reference in this Part to civil
proceedings against the Crown shall be construed as a reference to the
following proceedings only —
(a) proceedings for the enforcement or vindication of any right or the
obtaining of any relief which if this Act had not been enacted might
have been enforced or vindicated or obtained by any such proceedings
as are mentioned in paragraph 2 of Schedule 1;
(b) proceedings for the enforcement or vindication of any right or the
obtaining of any relief which if this Act had not been enacted might
have been enforced or vindicated or obtained by any action against the
Attorney-General, any Government department or any officer of the
Crown as such;
(c) all such proceedings as any person is entitled to bring against the
Crown by virtue of this Act,
and the expression “civil proceedings by or against the Crown” shall be
construed accordingly.
(3) Notwithstanding anything contained in subsections (1) and (2) the provisions
of this Part shall not have effect with respect to any of the following
proceedings, that is to say —
(a) proceedings brought by the Attorney-General on the relation of some
other person;
(b) proceedings relating to charitable trusts by or against the Attorney-
General.
PART IV - JUDGMENTS AND EXECUTION
22 Interest on debts, damages and costs
(1) The provisions of any written law relating to the payment of interest on
judgment debts in proceedings between subjects shall apply to judgment debts
due from or to the Crown.
(2) Where any costs are awarded to or against the Crown in the High Court
interest shall be payable on those costs unless the Court otherwise orders and
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any interest so payable shall be at the same rate as that at which interest is
payable upon judgment debts due from or to the Crown.
(3) The provisions of any written law empowering a court to award interest on
debts and damages shall apply to judgments given in proceedings by or
against the Crown.
(4) This section shall apply both in relation to proceedings pending at the
commencement of this Act and in relation to proceedings instituted thereafter.
23 Satisfaction of orders against the Crown
(1) Where in any civil proceedings by or against the Crown or in any proceedings
such as in England are taken on the Crown side of the Queen's Bench
Division of Her Majesty's High Court of Justice, or in connection with any
arbitration to which the Crown is a party any order (including an order for
costs) is made by any court in favour of any person against the Crown or
against a Government department or against an officer of the Crown as such
the proper officer of the court shall on an application in that behalf made by or
on behalf of that person at any time after the expiration of 21 days from the
date of the order or in case the order provides for the payment of costs and the
costs require to be taxed at any time after the costs have been taxed,
whichever is the later, issue to that person a certificate containing particulars
of the order:
Provided that, if the court so directs a separate certificate shall be issued in
respect of the costs if any ordered to be paid to the applicant.
(2) A copy of any certificate issued under this section may be served by or on
behalf of the person in whose favour the order is made upon the Attorney-
General.
(3) If the order provides for the payment of any money by way of damages or
otherwise or of any costs the certificate shall state the amount so payable and
the accounting officer shall subject as hereinafter provided pay to the person
entitled or to his duly authorised representative, if any, the amount appearing
by the certificate to be due to him together with the interest, if any, lawfully
due thereon:
Provided that the court by which any such order as aforesaid is made or any
court to which an appeal against the order lies may direct that pending an
appeal or otherwise payment of the whole of any amount so payable or any
part thereof shall be suspended and if the certificate has not been issued may
order any such directions to be inserted therein.
(4) Save as aforesaid no execution or attachment or process in the nature thereof
shall be issued out of any court for enforcing payment by the Crown of any
such money or costs as aforesaid and no person shall be individually liable
under any order for the payment by the Crown or any Government department
or any officer of the Crown as such of any such money or costs.
Section 24 CAP. 7.12 Crown Proceedings Act
2008 Revised Edition Page 18
(5) This section shall apply both in relation to proceedings pending at the
commencement of this Act and in relation to proceedings instituted thereafter.
24 Execution by the Crown
(1) Subject to the provisions of this Act any order made in favour of the Crown
against any person in any civil proceedings to which the Crown is a party may
be enforced in the same manner as an order made in an action between
subjects and not otherwise.
(2) Nothing in this section shall affect any procedure which immediately before
the commencement of this Act was available for enforcing an order made in
favour of the Crown in proceedings brought by the Crown for the recovery of
any fine or penalty or the forfeiture or condemnation of any goods or the
forfeiture of any vessel or any share in any vessel.
(3) Subsection (1) shall apply both in relation to proceedings pending at the
commencement of this Act and in relation to proceedings instituted thereafter.
25 Attachment of moneys payable by the Crown
(1) Where any money is payable by the Crown to some person who under any
order of any court is liable to pay any money to any other person and that
other person would if the money so payable by the Crown were money
payable by a subject be entitled under rules of court to obtain an order for the
attachment thereof as a debt due or accruing due or an order for the
appointment of a sequestrator or receiver to receive the money on his behalf
the High Court may subject to the provisions of this Act and in accordance
with rules of court make an order restraining the first mentioned person from
receiving that money and directing payment thereof to that other person or to
the sequestrator or receiver:
Provided that no such order shall be made in respect of —
(a) any wages or salary payable to any officer of the Crown as such;
(b) any money which is subject to the provisions of any written law
prohibiting or restricting assignment or charging or taking in execution.
(2) The provisions of subsection (1) shall so far as they relate to forms of relief
falling within the jurisdiction of a magistrate's court have effect in relation to
that court as they have effect in relation to the High Court.
Crown Proceedings Act CAP. 7.12 Section 26
2008 Revised Edition
Page 19
PART V - MISCELLANEOUS AND SUPPLEMENTAL
26 Discovery
(1) Subject to and in accordance with rules of court —
(a) in any civil proceedings in the High Court, a magistrate's court or a
lands court to which the Crown is a party the Crown may be required
by the court to make discovery of documents and produce documents
for inspection; and
(b) in any such proceedings as aforesaid, the Crown may be required by the
court to answer interrogatories:
Provided that this section shall be without prejudice to any rule of law which
authorises or requires the withholding of any document or the refusal to
answer any question on the ground that the disclosure of the document or the
answering of the question would be injurious to the public interest.
(2) Any order of the court made under the powers conferred by subsection (1) (b)
shall direct by what officer of the Crown the interrogatories are to be
answered.
(3) Without prejudice to the proviso to subsection (1) any rules made for the
purposes of this section shall be such as to secure that the existence of a
document will not be disclosed if in the opinion of the Minister it would be
injurious to the public interest to disclose the existence thereof.
27 Exclusion of proceedings in rem against the Crown
(1) Nothing in this Act shall authorise proceedings in rem in respect of any claim
against the Crown or the arrest, detention or sale of any vessel, aircraft, cargo
or other property belonging to the Crown or give to any person any lien on
any such vessel, aircraft, cargo or other property.
(2) Where proceedings in rem have been instituted in any court against any
vessel, aircraft, cargo or other property belonging to the Crown the court may
if satisfied either on an application by the plaintiff for an order under this
subsection or an application by the Crown to set aside the proceedings that the
proceedings were so instituted by the plaintiff in the reasonable belief that the
vessel, aircraft, cargo or other property did not belong to the Crown order that
the proceedings shall be treated as if they were in personam duly instituted
against the Crown in accordance with the provisions of this Act or duly
instituted against any other person whom the court regards as the proper
person to be sued in the circumstances and that the proceedings shall continue
accordingly; and any such order may be made upon such terms, if any, as the
court thinks just and where the court makes any such order the court may
make such consequential orders as the court may think expedient.
Section 28 CAP. 7.12 Crown Proceedings Act
2008 Revised Edition Page 20
28 Limitation of actions
Nothing in this Act shall prejudice the right of the Crown to rely upon the law
relating to the limitation of time for bringing proceedings against public authorities.
29 Application to the Crown of certain written laws
(1) This Act shall not prejudice the right of the Crown to take advantage of the
provisions of any written law although not named therein; and it is hereby
declared that in any civil proceedings against the Crown the provisions of any
written law which could if the proceedings were between subjects be relied
upon by the defendant as a defence to the proceedings, whether in whole or in
part, or otherwise, may subject to any express provision to the contrary be so
relied upon by the Crown.
(2) Any rules of court which empower the court to order a defendant who is about
to leave the jurisdiction of the court to furnish security shall with any
necessary modifications apply to civil proceedings by the Crown.
30 No abatement on demise of the Crown
No claim by or against the Crown and no proceedings for the enforcement of any
such claim shall abate or be affected by the demise of the Crown.
31 Abolition of certain writs
No writ of extent or of diem clausit extremum shall issue after the commencement of
this Act.
32 Rules of court
(1) Any power to make rules of court shall include power to make rules for the
purpose of giving effect to the provisions of this Act and any such rules may
contain provisions to have effect in relation to any proceedings by or against
the Crown in substitution for or by way of addition to any of the provisions of
the rules applying to proceedings between subjects.
(2) Provision shall be made by rules of court with respect to the
following matters —
(a) for providing for service of process or notice thereof in the case of
proceedings by the Crown against persons whether citizens of Tuvalu
or not who are not resident in Tuvalu;
(b) for securing that where any civil proceedings are brought against the
Crown in accordance with the provisions of this Act the plaintiff shall
before the Crown is required to take any step in the proceeding provide
the Crown with such information as the Crown may reasonably require
Crown Proceedings Act CAP. 7.12 Section 33
2008 Revised Edition
Page 21
as to the circumstances in which it is alleged that the liability of the
Crown has arisen and as to the departments and officers of the Crown
concerned;
(c) for providing that in the case of proceedings against the Crown the
plaintiff shall not enter judgment against the Crown in default of
appearance or pleading without the leave of the court to be obtained on
an application of which notice has been given to the Crown;
(d) for excepting proceedings brought against the Crown from the
operation of any rule of court providing for summary judgment without
trial;
(e) for enabling evidence to be taken on commission in proceedings by or
against the Crown;
(f) for providing —
(i) that a person shall not be entitled to avail himself of any set-off
or counterclaim in any proceedings by the Crown for the
recovery of taxes, duties or penalties or to avail himself in
proceedings of any other nature by the Crown of any set-off or
counterclaim arising out of a right or claim to repayment in
respect of any taxes, duties or penalties;
(ii) that a person shall not be entitled without the leave of the court to
avail himself of any set-off or counterclaim in any proceedings
by the Crown if either the subject matter of the set-off or
counterclaim does not relate to the Government department in
the name of which the proceedings are brought or the
proceedings are brought in the name of the Attorney-General;
(iii) that the Crown when sued in the name of a Government
department shall not without the leave of the court be entitled to
avail itself of any set-off or counterclaim if the subject matter
does not relate to that department; and
(iv) that the Crown when sued in the name of the Attorney-General
shall not be entitled to avail itself of any set-off or counterclaim
without the leave of the court.
(3) Provision may be made by rules of court for regulating any appeals to the
High Court whether by way of case stated or otherwise under written laws
relating to revenue.
33 Pending proceedings
Save as otherwise expressly provided the provisions of this Act shall not affect
proceedings by or against the Crown which have been instituted before the
commencement of this Act; and for the purposes of this section proceedings against
the Crown by petition of right shall be deemed to have been so instituted if a petition
Section 34 CAP. 7.12 Crown Proceedings Act
2008 Revised Edition Page 22
of right with respect to the matter in question has been filed for submission to the
Governor before the commencement of this Act.
34 Financial provisions
(1) Any expenditure incurred by or on behalf of the Crown in right of Her
Majesty's Government in Tuvalu by reason of the enactment of this Act shall
be defrayed out of the general revenue of Tuvalu.
(2) Any sums payable to the Crown by reason of the enactment of this Act shall
be paid into the Consolidated Fund.
35 Statutes ceasing to apply
The Acts of the United Kingdom set out in Schedule 2 shall cease to apply to Tuvalu
to the extent specified in column (c) of that Schedule.
36 Savings
(1) Nothing in this Act shall apply to proceedings by or against or authorise
proceedings in tort to be brought against Her Majesty in Her private capacity.
(2) Except as therein otherwise expressly provided nothing in this Act shall —
(a) affect the law relating to prize salvage or apply to proceedings in causes
or matters within the jurisdiction of any court as a prize court or to any
criminal proceedings;
(b) authorise proceedings to be taken against the Crown under or in
accordance with the provisions of this Act in respect of any alleged
liability of the Crown arising otherwise than in respect of Her Majesty's
Government in Tuvalu or affect proceedings against the Crown in
respect of any such alleged liability as aforesaid;
(c) affect any proceedings by the Crown otherwise than in right of Her
Majesty's Government in Tuvalu;
(d) subject the Crown to any greater liabilities in respect of the acts or
omissions of any independent contractor employed by the Crown than
those to which the Crown would be subject in respect of such acts or
omissions if it were a private person;
(e) affect any rules of evidence or any presumption relating to the extent to
which the Crown is bound by any written law;
(f) affect any right of the Crown to demand a trial at bar or to control or
otherwise intervene in proceedings affecting its rights, property or
profits; or
Crown Proceedings Act CAP. 7.12 Section 36
2008 Revised Edition
Page 23
(g) affect any right of the Attorney-General, or any Government
department or any officer of the Crown as such to institute proceedings
under or in accordance with the provisions of any other written law,
and without prejudice to the general effect of the foregoing provisions Part IV
shall not apply to the Crown except in right of Her Majesty's Government in
Tuvalu.
(3) A certificate of the Minister —
(a) to the effect that any alleged liability of the Crown arises otherwise
than in respect of Her Majesty's Government in Tuvalu; or
(b) to the effect that any proceedings by the Crown are proceedings
otherwise than in right of Her Majesty's Government in Tuvalu,
shall for the purpose of this Act be conclusive as to the matter so certified.
(4) Where any property vests in the Crown by virtue of any rule of law which
operates independently of the acts or the intentions of the Crown the Crown
shall not by virtue of this Act be subject to any liabilities in tort by reason
only of the property being so vested; but this subsection shall be without
prejudice to the liabilities of the Crown under this Act in respect of any period
after the Crown or any person acting for the Crown has in fact taken
possession or control of any such property, or entered into occupation thereof.
(5) This Act shall not operate to limit the discretion of the High Court to grant
relief by way of mandamus in cases in which such relief might have been
granted before the commencement of this Act notwithstanding that by reason
of the provisions of this Act some other and further remedy is available.
SCHEDULE 1 CAP. 7.12 Crown Proceedings Act
2008 Revised Edition Page 24
SCHEDULE 1
(Sections 11 and 21)
PROCEEDINGS ABOLISHED BY THIS ACT
1.
(1) Latin informations and English informations.
(2) Writs of capias ad respondendum, writs of subpoena ad respondendum and
writs of appraisement.
(3) Writs of scire facias.
(4) Proceedings for the determination of any issue upon a writ of extent or of
diem clausit extremum.
2.
(1) Proceedings against Her Majesty by way of petition of right, including
proceedings by way of petition of right under section 52 of the Naval Prize
Act 1864.
(2) Proceedings against Her Majesty by way of monstrans de droit.
Crown Proceedings Act CAP. 7.12 SCHEDULE 2
2008 Revised Edition
Page 25
SCHEDULE 2
(Section 35)
STATUTES NO LONGER APPLYING IN TUVALU
(a)
Year and Chapter
(b)
Title or Short Title
(c)
Extent of Repeal
25 Edw. I. c. 18
1785 c. 35
1817 c. 117
1842 c. 86
1860 c. 34
1864 c. 25
The King's Tenant his Debtor
The Crown Debtors Act 1785
The Extents in Aid Act 1817
The Exchequer Court Act 1842
The Petitions of Right Act 1860
The Naval Prize Act 1864
The whole Act
The whole Act
The whole Act
Section 9
The whole Act
Section 52
ENDNOTES CAP. 7.12 Crown Proceedings Act
2008 Revised Edition Page 26
ENDNOTES
1 1990 Revised Edition, Cap. 95 – Acts 11 of 1974, 1 of 1977, 11 of 1987
2 Cap. 40.68
3 Cap. 48.28
4 Cap. 32.02
