In my last blog, Passing of Accounts: New Rules, I listed a number of changes to the Rules of Civil Procedure, affecting Applications to Pass Accounts. In this blog I would like to focus on one of these changes: the addition of a new “type” of participants in the Application.
Participants under the old Rule
Under the old Rule 74.18, a person served with an Application to Pass Accounts could either serve and file a Notice of Objection to the Accounts (Rule 74.18(7)) or do nothing. If the person objected to the accounts, he/she became a formal participant in the Application. If nothing was filed, then the person was not entitled to any further notice regarding the Application.
Request for Further Notice
Rules 74.18(8)-(8.3) are a new addition to the Rules. They provide that a person served with an Application to Pass Accounts who does not object to the passing but wants to receive notice of further steps in the Application, may serve and file a Request for Further Notice in the form prescribed by the Rules (Form 74.45.1). The Request must be served on the Applicant and filed with proof of service at least 35 days before the hearing date specified in the Notice of Application.
By filing the Request, the person is entitled to receive notice of any further steps in the Application, receive further documents, file material relating to costs and if there is a hearing, be heard, examine and cross-examine on an affidavit with respect to a request for increased costs.
To file or not to file?
If the person served with the Application does not file a Notice of Objection or a Request for Further Notice, then he/she will not be entitled to notice of further steps, documents, file material or participate in a hearing. Therefore, any person served with an Application to Pass Accounts ought to bear in mind that by keeping silent and not filing the Request, he/she will not benefit from this new addition to the Rules. While the Court has discretion to order otherwise, it remains to be seen on what grounds the Court will exercise its discretion.
The new Rule is a welcome addition as it allows a person to remain informed about the Application without having to actively participate.