Order 10A of the National Court Rules 1983 deals with removal in three short rules, and gives one specific right of objection in a fourth.
Rules 22 to 24
22. The Commercial List judge may order the removal of a proceeding from the Commercial List.
23. On making such an order these rules will no longer apply to the proceeding unless otherwise ordered.
24. Removal from the list in no way affects any order or direction made in the proceeding prior to removal.
Removal is prospective. Directions already given — for expert reports, statements of evidence, lists of documents, a Schedule B order for hearing — continue to bind.
So a party seeking removal in order to escape a timetable gains nothing. If the object is relief from a particular direction, the application should be to vary or discharge that direction, not to leave the list.
Rule 23 also allows the Court to order otherwise — so parts of Order 10A may be preserved on removal if that suits the case.
Rule 21(2)
Where a matter is listed by the Registry or on the recommendation of the Registrar, the Commercial List Clerk will notify the parties.
Within 14 days of receipt of such a notice from the Commercial List Clerk any party may apply by motion to have the matter removed from the lists.
Automatic listing under Rule 8 happens without any party asking for it — the Registry identifies a matter apparently involving a dispute concerning an amount greater than K500,000 arising out of a commercial transaction, and lists it.
A party that considers the list inappropriate has 14 days from the Clerk’s notice to move. After that, the plaintiff comes under the Rule 21(3) obligation to file a motion for directions, together with a Commercial List Statement, within 28 days of the notice, and the case is under management.
Removal remains possible later under Rule 22, but it is then a matter for the Judge’s discretion rather than a right to apply within a defined window.
Why a case may be removed
Rule 9(b) — proceedings which concern the above topics but exhibit no serious commercial element, or in which there is no real dispute, should not be listed on the Commercial List.
Rule 9(c) — the Commercial List judge has discretion as to whether a matter should be entered or retained on the Commercial List.
| Ground | Basis |
|---|---|
| No serious commercial element — the case touches a listed topic only incidentally | Rule 9(b) |
| No real dispute — the claim is suited to summary judgment or default judgment | Rule 9(b) |
| The amount is well below the threshold, and the issues are not of importance in trade or commerce | Rules 8, 9(c) |
| The commercial issues have fallen away — what remains is, for example, an assessment of damages | Rule 9(c) — “retained” |
| Revenue proceedings where the summary judgement procedure is available to the plaintiff | Rule 9(a)(xiv), expressly excluded |
| The proceeding belongs elsewhere — for example customary land before the Local Land Court | Rule 9(c), and jurisdiction generally |
What to file
- A notice of motion — Rule 21(2) requires a motion, and Rule 15 applies the ordinary Motions Rules in Order 4 Division 5. Include a concise reference to the Court’s jurisdiction — here, Order 10A Rules 21(2) and 22.
- A hearing date obtained in advance. Rule 11(c)(i) requires a lawyer to contact the Commercial List Clerk or the Associate to the Commercial List Judge before filing a listing motion, and the same practical course applies to a removal motion.
- An affidavit from someone with direct knowledge, addressing the Rule 9(b) grounds: what the dispute is actually about, the real amount in issue, and why there is no serious commercial element.
- The Clerk’s notice, exhibited, with the date of receipt — because the 14 days runs from it.
- A draft order. Rule 12 requires a draft on a listing application, delivered not less than 24 hours before the hearing with any consent endorsed; the same practice assists on removal.
Being on the list brings continuity of judge under Rule 15, a defined pre-trial timetable, and access to the summary disposal procedure set out in Rule 16 of the Listings Rules 2005, adopted by Rule 25.
It also brings restrictions: discovery, particulars and interrogatories only upon demonstrated need being established under Rule 19. A party that needs extensive discovery may genuinely be better off in the ordinary track.
Weigh those before applying. And remember Rule 24: whatever has already been ordered survives removal.
The proceeding continues in the ordinary civil track, managed under Order 10 Rule 9A — mentions, directions hearings, a pre-trial conference and a status conference — and is set down for trial under Order 10 Division 1.
The “COMM” designation required by Rule 7 no longer applies, and the file leaves the custody of the Commercial List Clerk under Rule 6. Confirm with the Registry that the file reference has been amended, so that later documents are filed correctly.
Sources
- National Court Rules 1983 — O 4 Div 5; O 9; O 10 rr 9A, Div 1; O 10A rr 6–9, 11, 12, 15, 19, 21–25
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.