7.After the third-party enters an appearance, and before the expiration of the time limited for delivery of defence, he may, after serving notice of the intended application upon the plaintiff and all defendants, apply to the Court to vary any directions given by the Court under sub rule (1) of rule 1 of this Order.
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8.(1) After the third-party has delivered his defence, the defendant giving notice may, after serving notice of the intended application upon the plaintiff, the third-party and any other defendant, apply to the Court for directions and the Court may— ( a ) where the liability of the third-party to the defendant giving the notice is established on the hearing of the application, order such judgment as the nature of the case may require to be entered against the third-party in favour of the defendant giving the notice, or ( b ) if satisfied that there is a question or issue proper to be tried as between the plaintiff and the defendant and the third-party or between any or either of them as to the liability of the defendant to the plaintiff or as to the liability of the third-party to make any contribution or indemnity claimed in whole or in part, or as to any other relief or remedy claimed in the notice by the defendant, or that a question or issue stated in the notice should be determined not only as between the plaintiff and the defendant but as between the plaintiff, the defendant and the third-party or any or either of them, thereupon try such question or issue or order it to be tried in such manner as the Court may direct, or ( c ) If it shall appear desirable to do so, give the third party liberty to defend the action, either alone or jointly with the original defendant, upon such terms as may be just, or ( d ) dismiss the application.
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(2)Any directions given pursuant to this rule may be given either before or after any judgment has been obtained by the plaintiff against the defendant in the action, and may be varied from time to time or rescinded.
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(3)The third-party proceedings may at any time be set aside by the Court.
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9.(1) Where the action is tried, the Court which tries the action may, at or after the trial, give such judgment as the nature of the case may require for or against the defendant giving the notice against or for the third-party, and may grant to the defendant or to the third-party any relief or remedy which might properly have been granted if the third-party had been made a defendant to an action duly instituted against him by the defendant: provided that execution shall not be issued against the third-party without leave of the Court until after satisfaction by the defendant of any judgment against him.
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(2)Where the action is decided otherwise than by trial, the Court may, on application therefor, make such order as the nature of the case may require, and, where the plaintiff has recovered judgment against the defendant, may order such judgment as may be just to be entered for or against the defendant giving notice against or for the third-party.
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10.The Court may decide all questions of costs as between a third-party and the other parties to the action, and may order any one or more to pay the costs of any other or others or give such directions as to costs as the justice of the case may require.
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11.(1) Where a third-party makes as against any person not already a party to the action such a claim as is defined in rule 1 the provisions of this Order regulating the rights and procedure as between the defendant and the third-party shall apply mutatis mutandis as between the third-party and such other person and the Court may give leave to such third-party to issue a third-party notice, and the preceding rules of this Order shall apply, mutatis mutandis, and the expression \"third-party notice\" and \"third-party\" shall apply to and include every notice so issued and every person served with such notice respectively.
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(2)Where a person served with a notice under this rule by a third-party in turn makes such a claim as is defined in rule 1 against another person not already a party to the action, this Order as applied by this rule shall have effect as regards such further person and any further person or persons so served and so on successively.
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12.(1) Where a defendant claims against another defendant— ( a ) that he is entitled to contribution or indemnity, or ( b ) that he is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff, or ( c ) that any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant making the claim and should properly be determined not only as between the plaintiff and the defendant making the claim but as between the plaintiff and the defendant and the other defendant or between any or either of them, the defendant making the claim may, without any leave, issue and serve on such other defendant a notice making such claim or specifying such question or issue. No appearance to such notice shall be necessary.
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(2)After service of such notice either defendant shall be at liberty to apply for directions as regards pleadings between them if either considers it necessary to do so. In default of such application within twenty-eight days of service of such notice, the claim, question or issue shall be tried at or after the trial of the plaintiff's action as the trial judge shall direct.
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(3)Nothing herein contained shall prejudice the rights of the plaintiff against any defendant to the action.
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13.In this Order the words \"plaintiff\" and \"defendant\" respectively, shall include a plaintiff and a defendant to a counterclaim.
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ORDER 17. CHANGE OF PARTIES BY DEATH, &c.
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1.A cause or matter shall not become abated by reason of the death, or bankruptcy of any of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite; and, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgment; but judgment may in such case be entered, notwithstanding the death.
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2.In case of the death, or bankruptcy, or devolution of estate by operation of law, of any party to a cause or matter, the Court may, if it be deemed necessary for the complete settlement of all the questions involved, order that the personal representative, assignee, trustee, or other successor in interest, if any, of such party be made a party, or be served with notice in such manner and form as hereinafter prescribed, and on such terms as the Court shall think just, and shall make such order for the disposal of the cause or matter as may be just.
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3.In case of an assignment, creation, or devolution of any estate or title pendente lite, the cause or matter may be continued by or against the person to or upon whom such estate or title has come or devolved.
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4.Where by reason of death or bankruptcy, or any other event occurring after the commencement of a cause or matter and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the Court upon an allegation of such change, or transmission of interest or liability, or of such person interested having come into existence.
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5.An order obtained as in rule 4 mentioned shall, unless the Court shall otherwise direct, be served upon the continuing party or parties, or their solicitors, and also upon each such new party, unless the person making the application be himself the only new party, and the order shall from the time of such service, subject nevertheless to rules 6 and 7, be binding on the persons served therewith, and every person served therewith who is not already a party to the cause or matter shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a summons.
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6.Where any person who is under no disability, or, being under any disability, has a guardian ad litem in the cause or matter, shall be served with such order as in rule 4 mentioned, such person may apply to the Court to discharge or vary such order at any time within twelve days from the service thereof.
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7.Where any person being under any disability and not having a guardian ad litem in the cause or matter, is served with any order as in rule 4 mentioned, such person may apply to the Court to discharge or vary such order at any time within twelve days from the appointment of a guardian ad litem for such party, and until such period of twelve days shall have expired such order shall have no force or effect as against such last-mentioned person.
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8.When the plaintiff or defendant in a cause or matter dies and the cause of action survives, but the person entitled to proceed fails to proceed, the defendant (or the person against whom the cause or matter may be continued) may apply to compel the plaintiff (or the person entitled to proceed) to proceed within such time as may be ordered; and in default of such proceeding, judgment may be entered for the defendant, or, as the case may be, for the person against whom the cause or matter might have been continued; and in such case, if the plaintiff has died, execution may issue as in the case provided for by Order 42, rule 24.
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9.In case of the death of a sole defendant or of all the defendants in an action for the recovery of land before trial, the plaintiff shall be entitled to judgment for recovery of possession of the property, unless some other person shall take defence within a time to be appointed for that purpose by the order of the Court, to be made upon the ex parte application of the plaintiff; and it shall be lawful for the Court, upon such application as aforesaid, to order that the plaintiff shall be at liberty to sign judgment within such time as the Court may think fit, unless the person then in possession, by himself or his tenant, or the legal representative of the deceased defendant, shall within such time appear in the action; and such order may be served in the same manner as the summons; and in case any such person shall appear, the same proceedings may be taken against such new defendant as if he had originally appeared and defended the action; and if no appearance be entered, then the plaintiff shall be at liberty to sign judgment pursuant to the order.
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10.In case of the death before trial of one of several defendants in an action for the recovery of land who defends separately for a portion of the property for which the other defendant or defendants do not defend, the same proceedings may be taken as to such portion as in the case of the death of a sole defendant, or the plaintiff may proceed against the surviving defendant or defendants in respect of the portion of the property for which he or they defend.
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11.In case of the death before trial of one of several defendants in an action for the recovery of land who defends separately in respect of property for which a surviving defendant or surviving defendants also defend, the Court may, at any time before the trial, allow the person at the time of the death in possession of the property, or the legal representative of the deceased defendant, to defend, on such terms as may appear reasonable and just, upon the application of such person or representative; and if no such application be made or leave granted, the plaintiff may proceed against the surviving defendant or defendants to judgment and execution.
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12.Where any cause or matter becomes abated or in case of any such change of interest as is by this Order provided for, the solicitor for the plaintiff or person having the conduct of the cause or matter as the case may be, shall certify the fact to the proper officer, who shall cause an entry thereof to be made in the Cause Book opposite to the name of such cause or matter.
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13.Where any cause or matter shall have been standing for one year in the Cause Book marked as \"abated,\" or standing over generally, such cause or matter at the expiration of the year shall be struck out of the Cause Book.
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ORDER 18. JOINDER OF CAUSES OF ACTION.
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1.Subject to the rules of this Order, the plaintiff may unite in the same action several causes of action; but if it appear to the Court that any such causes of action cannot be conveniently tried or disposed of together the Court may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof.
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2.No cause of action shall unless by leave of the Court be joined with an action for the recovery of land, except claims in respect of mesne profits or arrears of rent or double rent in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which the same or any part thereof are held, or for any wrong or injury to the premises claimed. Provided that nothing in this Order contained shall prevent any plaintiff in an action for redemption from asking for or obtaining an order against the defendant for delivery of the possession of the mortgaged property to the plaintiff on or after the order absolute for redemption, and such an action for redemption and for such delivery of possession shall not be deemed an action for the recovery of land within the meaning of these Rules.
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3.Claims by an assignee or trustee in bankruptcy as such shall not, unless by leave of the Court, be joined with any claim by him in any other capacity.
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4.Claims by or against husband and wife may be joined with claims by or against either of them separately.
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5.Claims by or against an executor or administrator as such may be joined with claims by or against him personally, provided the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator.
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6.Claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant.
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7.Rules 4, 5 and 6 shall be subject to rules 1, 8 and 9.
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8.Any defendant alleging that the plaintiff has united in the same action several causes of action which cannot be conveniently disposed of together, may at any time apply to the Court for an order confining the action to such of the causes of action as may be conveniently disposed of together.
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9.If, on the hearing of such application as in rule 8 mentioned, it shall appear to the Court that the causes of actionare such as cannot all be conveniently disposed of together, the Court may order any of such causes of action to be excluded, and, consequential amendments to be made, and may make such order as to costs as may be just.
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ORDER 19. PLEADING GENERALLY.
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1.The plaintiff shall, subject to the provisions of Order 20, and at such time and in such manner as therein prescribed, deliver to the defendant a statement of his claim, and of the relief or remedy to which he claims to be entitled. The defendant shall subject to the provisions of Order 21, and at such time and in such manner as therein prescribed, deliver to the plaintiff his defence, set-off, or counter-claim (if any), and the plaintiff shall, subject to the provisions of Order 23, and at such time and in such manner as therein prescribed, deliver his reply (if any) to such defence, set-off, or counter-claim. Such statements shall be as brief as the nature of the case will admit, and the Taxing Master in adjusting the costs of the action shall, at the instance of any party, or may without any request, inquire into any unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with the same.
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2.A defendant in an action may set-off, or set up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and such set-off or counterclaim shall have the same effect as a cross action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the Court may, on the application of the plaintiff before trial, if in the opinion of the Court such set-off or counterclaim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof.
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3.Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums, and numbers shall be expressed in figures and not in words. Signature of counsel shall not be necessary; but where pleadings have been settled by counsel they shall be signed by him; and if not so settled they shall be signed by the solicitor, or by the party if he sues or defends in person.
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4.The headings in Appendix B, Part IV, where applicable, shall be used for all pleadings.
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5.(1) In all cases alleging a wrong within the meaning of the Civil Liability Acts, 1961 and 1964, particulars of such wrong, any personal injuries suffered and any items of special damage shall be set out in the statement of claim or counterclaim and particulars of any contributory negligence shall be set out in the defence.
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(2)In all cases alleging misrepresentation, fraud, breach of trust, wilful default or undue influence and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be set out in the pleadings.
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(3)In any case where the particulars, being of debt, expenses or damages, exceed three folios that fact must be so stated with a reference to full particulars already delivered or to be delivered with the pleadings.
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6.In probate actions it shall be stated with regard to every claim or defence which is pleaded, what is the substance of the case on which it is intended to rely; and further:—
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(1)where undue influence is pleaded, the party making such plea shall, before the case is set down for trial, give particulars of the names of the persons against whom the charge of undue influence is preferred, the nature of the conduct alleged to constitute the undue influence and the dates upon which the acts alleged to constitute undue influence were exercised; and
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(2)where it is pleaded that the testator was not of sound disposing mind, the party making such plea shall, before the case is set down for trial, give particulars of any specific instance of delusion or mental incapacity; and
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(3)except by leave of the Court, no evidence shall be given of any other instance of undue influence or delusion or mental incapacity at the trial.
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7.(1) A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just.
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(2)Before applying under this rule to the Court a party may apply for particulars by letter. The costs of each letter and of any particulars delivered pursuant thereto shall be allowable on taxation. In dealing with the costs of any application for particulars, the provisions of this paragraph shall be taken into consideration by the Court.
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(3)Particulars shall not be ordered under this rule to be delivered before defence or reply, as the case may be, unless the Court shall be of opinion that they are necessary or desirable to enable the defendant or plaintiff, as the case may be, to plead or ought for any other special reason to be so delivered.
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8.The party at whose instance particulars have been delivered under an order of the Court shall, unless the order otherwise provides, have the same length of time for pleading after the delivery of the particulars that he had at the date of the service of the notice of the application. Save as in this rule provided, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings, or give any extension of time.
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9.Every pleading which shall contain less than fifteen folios (every figure being counted as one word) may be either printed or written, or partly printed and partly written, and every other pleading, not being a petition, shall be printed unless otherwise ordered by the Court.
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10.Every pleading or other document required to be delivered to a party, or between parties, shall be delivered to the solicitor of every party who appears by a solicitor, or to the party if he does not appear by a solicitor, but if no appearance has been entered for any party, then such pleading or document shall be delivered by being filed with the proper officer of the Central Office.
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11.Every pleading shall be delivered between parties, and shall, in addition to the matters specified in Order 121, rule 4, contain reference to the record number of the action, the Court (if any) to which the action is assigned, the title of the action and the description of the pleading.
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12.Nothing in these Rules contained shall affect the right of any defendant to plead not guilty by statute. Every defence of not guilty by statute shall have the same effect as a plea of not guilty by statute has heretofore had. If the defendant so plead he shall not plead any other defence to the same cause of action without the leave of the Court.
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13.Every allegation of fact in any pleading, not being a petition, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, or person of unsound mind.
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14.Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant (as the case may be) and subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.
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15.The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or Statute of Frauds.
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16.No pleading, not being a petition, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.
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17.It shall not be sufficient for a defendant in his statement of defence to deny generally the grounds alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counterclaim, but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
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18.Subject to rule 17, the plaintiff by his reply may join issue upon the defence, and each party in his pleading (if any) subsequent to reply may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined, but it may except any facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted.
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19.When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with divers circumstances, it shall not be sufficient to deny it along with those circumstances.
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20.When a contract, promise, or agreement is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of such contract, promise, or agreement, whether with reference to the Statute of Frauds or otherwise.
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21.Wherever the contents of any document are material it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof unless the precise words of the document or any part thereof are material.
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22.Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.
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23.Wherever it is material to allege notice to any person of any fact, matter, or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred, be material.
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24.Whenever any contract or any relation between any persons is to be implied from a series of letters or conversations, or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations, or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative.
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25.Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied (e.g., consideration for a bill of exchange, where the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim).
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26.No technical objection shall be raised to any pleading on the ground of any alleged want of form.
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27.The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action; and may in any such case, if it shall think fit, order the costs of the application to be paid as between solicitor and client.
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28.The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.
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29.No action or pleading shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may, if it thinks fit, make binding declarations of right whether any consequential relief is or could be claimed or not.
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ORDER 20. STATEMENT OF CLAIM.
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1.When the procedure is by summary summons or special summons, no statement of claim or other pleading shall be delivered except by order of the Court, which order may be made in any case in which the delivery of such statement of claim or other pleading appears to be requisite.
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2.Where the procedure is by plenary summons, the plaintiff may deliver a statement of claim with the plenary summons or notice in lieu thereof, or at any time within twenty-one days from the service thereof.
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3.Where the defendant enters an appearance to a plenary summons and, at the time of entering such appearance or within eight days thereafter, gives notice in writing to the plaintiff or his solicitor, that he requires a statement of claim to be delivered, the plaintiff, if he has not already done so, shall deliver a statement of claim within twenty-one days from the receipt of such notice.
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4.Subject to the provisions of Order 13, rule 17, as to filing a statement of claim when there is no appearance, no statement of claim need be delivered when the defendant fails to appear or fails to serve such notice as is mentioned in rule 3. Where the plaintiff delivers a statement of claim without being required to do so, or the defendant unnecessarily requires such statement, the Court may make such order as to the costs occasioned thereby as shall be just, if it appears that the delivery of a statement of claim was improper or unnecessary.
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5.Where the defendant in a probate action has appeared, the plaintiff shall not be bound to deliver a statement of claim until the expiration of eight days after the defendant has filed his affidavit as to scripts.
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6.Whenever a statement of claim is delivered the plaintiff may therein alter, modify, or extend his claim without any amendment of the indorsement on the summons.
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7.Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and it shall not be necessary to ask for general or other relief, which may always be given, as the Court may think just, to the same extent as if it had been asked for. The same rule shall apply to any counterclaim made or relief claimed by the defendant in his defence.
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8.Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly. The same rule shall apply where the defendant relies upon several distinct grounds of defence, set-off, or counterclaim, founded upon separate and distinct facts.
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9.In every case in which the cause of action is a stated or settled account, the same shall be alleged with particulars, but in every case in which a statement of account is relied on by way of evidence or admission of any other cause of action which is pleaded the same shall not be alleged in the pleadings.
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10.In probate actions where the plaintiff disputes the interest of the defendant, he shall allege in his statement of claim that he denies the defendant's interest, and in such cases both parties may with and subject to the permission of the Court adduce proof on one and the same trial of their interests respectively, and, after delivery of the statement of claim, the interest of the party to whom it has been delivered shall not be disputed by the plaintiff unless by leave of the Court.
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11.In interest causes the pleading of each party must show, on the face of it, that no other person exists having a prior interest to that of the claimant.
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ORDER 21. DEFENCE AND COUNTERCLAIM.
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1.Where a defendant enters an appearance to a plenary summons he shall deliver his defence and counterclaim (if any)— ( a ) in case he does not by notice require a statement of claim, within twenty eight days from the entry of appearance; or ( b ) in any other case within twenty eight days from the date of delivery of the statement of claim or from the time limited for appearance, whichever shall be later.
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2.Where leave has been given to a defendant to defend under Order 37, he shall deliver his defence (if any) within such time as shall be limited by the order giving leave to defend or, if no time is thereby limited, within fourteen days from the order.
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3.In actions for a debt or liquidated demand in money a mere denial of the debt shall be inadmissible.
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4.In actions upon bills of exchange, promissory notes, or cheques, a defence in denial must deny some matter of fact, e.g., the drawing, making, indorsing, accepting, presenting, or notice of dishonour of the bill or note.
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5.In actions comprised in Order 2, rule 1 (1) classes (a) and (b), a defence in denial must deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed; e.g., in actions for goods bargained and sold, or sold and delivered, the defence must deny the order or contract, the delivery, or the amount claimed; in an action for money had and received, it must deny the receipt of the money, or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff.
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6.No denial or defence shall be necessary as to damages claimed or their amount; but they shall be deemed to be put in issue in all cases, unless expressly admitted.
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7.If either party wishes to deny the right of any other party to claim as executor, or as trustee, whether in bankruptcy or otherwise, or as assignee in bankruptcy, or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically.
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8.Where the Court shall be of opinion that any allegations of fact denied or not admitted by the defence ought to have been admitted, the Court may make such order as shall be just with respect to any extra cost occasioned by their having been denied or not admitted.
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9.Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall in his defence, state specifically that he does so by way of counterclaim.
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10.Where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff along with any other persons, he shall add to the title of his defence a further title similar to the title in a statement of claim setting forth the names of all the persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver his defence to such of them as are parties to the action within the period within which he is required to deliver it to the plaintiff.
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11.Where any such person as in rule 10 mentioned is not a party to the action, he shall be summoned to appear by being served with a copy of the defence, and such service shall be regulated by the same rules as are hereinbefore contained with respect to the service of a summons, and every defence so served shall be indorsed in the Form No. 3 in Appendix C.
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12.Any person not a defendant to the action, who is served with a defence and counterclaim as aforesaid, shall appear thereto as if he had been served with a summons to appear in an action.
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13.Any person named in a defence as a party to a counterclaim thereby made may deliver a reply within the time within which he might deliver a defence if it were a statement of claim.
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14.Where a defendant sets up a counterclaim, if the plaintiff or any other person named in manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent action, he may at any time before reply apply to the Court for an order that such counterclaim may be excluded, and the Court may, on the hearing of such application, make such order as shall be just.
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15.If, in any case in which the defendant sets up a counterclaim, the action of the plaintiff is stayed, discontinued, or dismissed, the counterclaim may nevertheless be proceeded with.
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16.Where in any action a set-off or counterclaim is established as a defence against the plaintiff's claim, the Court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.
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17.In probate actions the party opposing a will may, with his defence, give notice to the party setting up the will that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall not, in any event, be liable to pay the costs of the other side unless the Court shall be of opinion that there was no reasonable ground for opposing the will.
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18.In every case in which a party shall plead the general issue, intending to give the special matter in evidence by virtue of any statute, he shall insert in the margin of his pleading the words \"by statute\" together with the year in which the statute on which he relies was passed, and also the chapter or number and section of such statute, and shall specify whether such statute is public or otherwise; otherwise such defence shall be taken not to have been pleaded by virtue of any statute.
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19.No plea or defence shall be pleaded in abatement.
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20.No defendant in an action for the recovery of land upon the title, who is in possession by himself or his tenant, need plead his title, unless his defence depends on an equitable estate or right or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. Except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession and it shall be taken to be implied in such statement that he denies, or does not admit, the allegations of fact contained in the plaintiff's statement of claim. He may, nevertheless, rely upon any ground of defence which he can prove except as hereinbefore mentioned.
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21.In case of such an action being brought by some or one of several persons entitled as joint tenants, tenants in common, or coparceners, any joint tenant, tenant in common, or coparcener in possession may set forth in his defence that he is such joint tenant, tenant in common, or coparcener, and defends as such, and that he admits the right of the plaintiff to an undivided share of the property, stating what share, but denies any actual ouster of him from the property, and upon the trial of such issue the additional question of whether an actual ouster has taken place shall be tried.
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22.A person who has appeared in an action for the recovery of a holding, agricultural or pastoral, or partly agricultural and partly pastoral, in its character, for non-payment of rent, and has limited his appearance in accordance with Order 12, rule 22 shall deliver his defence (if any) within thirty-one days after his appearance.
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ORDER 22. PAYMENT INTO AND OUT OF COURT AND TENDER.
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1.(1) In any action for a debt or damages or in an admiralty action the defendant may at any time after he has entered an appearance in the action and before it is set down for trial, or at any later time by leave of the Court, upon notice to the plaintiff, pay into Court a sum of money in satisfaction of the claim or (where several causes of action are joined in one action) in satisfaction of one or more of the causes of action.
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(2)A defendant may once, without leave, and upon notice to the plaintiff, pay into Court an additional sum of money as an increase in a payment made under paragraph (1) hereof. Such notice must be given and payment made at least three months before the date on which the action is first listed for hearing. Such increased lodgment shall thereupon become the sum paid into Court and the date of such increased payment the date of the payment into Court. If such notice is not given, and such payment not made as aforesaid the payment made, under paragraph (1) shall be deemed to be the only payment into Court and this Order shall be construed accordingly.
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(3)In actions for libel or slander, or where the defence raises questions of title to land or incorporeal hereditaments, money may not be paid into Court under this rule unless liability is admitted in the defence.
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(4)In an action on a bond, covenant or agreement coming within the provisions of the Common Law Procedure Amendment Act (Ireland) 1853, section 145, payment into Court under this rule shall be admissible as to particular breaches only, and not to the whole action.
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(5)Where money is paid into Court in satisfaction of one or more of several causes of action the notice shall specify the cause or causes of action in respect of which payment is made, and the sum paid in respect of each cause of action, unless the Court otherwise orders.
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(6)The notice shall be in the Form No. 4 or No. 5, as appropriate, in Appendix C, and shall state whether liability is admitted or denied, and subject to rule 7, shall be regarded as part of the pleadings.
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2.It shall be lawful for any defendant in any action for the recovery of land for non-payment of rent, before or at the time of delivering his defence, or where the defendant is not required to deliver a defence, before or at the time of filing an affidavit in answer to the plaintiff's claim, or at any later time by leave of the Court, upon notice to the plaintiff to pay into Court a sum of money for rent, with an undertaking to pay the costs then incurred when taxed and ascertained and in case of non-payment thereof to suffer judgment to be marked, and thereupon the plaintiff, if he shall not accept the said sum in full discharge of the action, with costs to be taxed by the proper officer, may proceed in the said action at his peril; and if upon trial of the issue it shall appear that no greater sum was due for rent at the time of the service of the summons than the sum paid into Court, the verdict shall be entered for the defendant.
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3.With a defence or affidavit setting up a tender before action, the sum of money alleged to have been tendered must be brought into Court.
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4.(1) Where money is paid into Court under rule 1 the plaintiff may, within fourteen days of the receipt of notice of payment into Court, or within such further period as may be agreed upon by the parties, accept the whole sum or any one or more of the specified sums in satisfaction of the claim or in satisfaction of the cause or causes of action to which the specified sum or sums relate, by giving notice to the defendant in the Form No. 6 in Appendix C; and thereupon he shall be entitled to receive payment of the accepted sum or sums in satisfaction as aforesaid.
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(2)Payment shall be made to the plaintiff or on his written authority to his solicitor, and thereupon proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall be stayed.
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(3)If the plaintiff accepts money paid into Court in satisfaction of his claim, or if he accepts a sum or sums paid in respect of one or more of the specified causes of action, and gives notice that he abandons the other cause or causes of action, he may after four days from payment out, unless the Court otherwise orders, tax his costs incurred to the date of giving notice to the defendant in accordance with the provisions of sub rule (1) hereof, and forty-eight hours after taxation may sign judgment for his taxed costs.
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(4)This rule does not apply to admiralty actions.
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5.If the whole of the money in Court is not taken out under rule 4, the money remaining in Court shall not be paid out except in satisfaction of the claim or specified cause or causes of action in respect of which it was paid in and in pursuance of an order of the Court, which may be made at any time before, at, or after trial.
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6.If the plaintiff does not accept, in satisfaction of the claim or cause of action in respect of which the payment into Court has been made, the sum so paid in but proceeds with the action in respect of such claim or cause of action, or any part thereof, and is not awarded more than the amount paid into Court, then, unless the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct, the following provisions shall apply:
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(1)If the amount paid into Court exceeds the amount awarded to the plaintiff, the excess shall be repaid to the defendant and the balance shall be retained in Court.
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(2)The plaintiff shall be entitled to the costs of the action up to the time when such payment into Court was made and of the issues or issue, if any, upon which he shall have succeeded.
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(3)The defendant shall be entitled to the costs of the action from the time such payment into Court was made other than such issues or issue as aforesaid.
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(4)The costs mentioned at paragraphs (2) and (3) hereof shall be set off against each other; and if the balance shall be in favour of the defendant, the amount thereof shall be satisfied pro tanto out of the money remaining in Court and, in so far as the money remaining in Court is not sufficient to satisfy the same, shall be recoverable from the plaintiff; or if the balance shall be in favour of the plaintiff, the amount thereof shall be recoverable from the defendant.
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(5)Any money remaining in Court after satisfying the balance (if any) due to the defendant for costs as aforesaid shall be paid out to the plaintiff.
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(6)If in any case the Court is of opinion that for the purposes of the preceding paragraphs of this rule it is not necessary to retain in Court the whole of the balance referred to in paragraph (1) it may order the payment out to the plaintiff of so much thereof as it deems proper.
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(7)The amount awarded to the plaintiff shall be deemed to be satisfied by the application in manner aforesaid of the moneys paid into Court.
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7.(1) The fact that money has been paid into Court under any of the preceding rules of this Order shall be stated in the defence, or where the defendant is not required to deliver a defence, in the affidavit filed in answer to the plaintiff's claim; but except in an action to which a defence of tender before action is pleaded no communication of the amount so paid into Court shall at the trial of any action be made to the Judge until all questions of liability and amount of debt or damages have been decided, and where an action (except as aforesaid) is tried by a Judge with a jury, no communication either of the fact that money has been paid into Court or of the amount thereof shall be made to the jury.
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(2)Where the defendant has made a payment into Court under rule 1 (1) after his defence has been delivered or having filed an affidavit in answer to the plaintiff's claim, as the case may be, an amended defence shall be delivered or a supplementary affidavit shall be filed to comply with the provisions of paragraph (1) hereof. No order shall be required for such amendment or for the filing of such supplementary affidavit.
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8.A plaintiff may, in answer to a counterclaim, pay money into Court in satisfaction thereof, subject to the like conditions as to costs and otherwise as upon payment into Court by a defendant.
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9.Money paid into Court under an order of the Court shall not be paid out of court except in pursuance of an order of the Court: Provided that, where before the delivery of defence money has been paid into Court by the defendant pursuant to an order under the provisions of Order 37, he may (unless the Court shall otherwise order) by notice in writing appropriate the whole or any part of such money, and any additional payment if necessary, to the whole or any specified portion of the plaintiff's claim or if he pleads a tender may by his pleading appropriate the whole or any part of the money in Court as payment into Court of the money alleged to have been tendered; and the money so appropriated shall thereupon be deemed to be money paid into Court pursuant to the preceding rules of this Order relating to money paid into Court, or money paid into Court with a plea of tender as the case may be, and shall be subject in all respects thereto.
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10.(1) In any cause or matter in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into Court, either before or at or after trial, shall, as regards the claims of any such infant or person of unsound mind, be valid without the approval of the Court.
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(2)No money (which expression for the purposes of this rule includes damages) in any way recovered or adjudged or ordered or awarded or agreed to be paid in any such cause or matter in respect of the claims of any such infant or person of unsound mind, whether by verdict or by settlement, compromise, payment into Court or otherwise, before or at or after the trial, shall be paid to the plaintiff or to the next friend of the plaintiff or to the plaintiff's solicitor unless the Court shall so direct.
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(3)All money so recovered or adjudged or ordered or awarded or agreed to be paid shall be dealt with as the Court shall direct, and the said money or any part thereof may be so directed:— ( a ) to be paid into the High Court and to be invested or otherwise dealt with there; or ( b ) to be paid into or transferred to the Circuit Court of the district in which such plaintiff resides, or such other Circuit Court as the Court may think fit.
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The Forms Nos. 9 and 10 in Appendix E may be used in cases to which they are applicable.
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(4)(i) The directions referred to in paragraph (3) of this rule may include any general or special directions that the Court may think fit to give, including (without prejudice to the generality of the above provision) directions as to how the money is to be applied or dealt with and as to any payment to be made, either directly or out of the amount paid into court, and (in case of transfer to the Circuit Court) either before or after it is transferred to the Circuit Court, to the plaintiff or to the next friend in respect of moneys paid or expenses incurred or for maintenance or otherwise for or on behalf of or for the benefit of the infant or person of unsound mind or otherwise, or to the plaintiff's solicitor in respect of costs. (ii) The certificate of the birth of every such infant plaintiff shall be produced to the Court, and the date of such birth shall be recited in the certificate or order of the Court.
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(5)The proper officer of the Central Office shall on request from the County Registrar furnish to him free of charge copies of such documents as may be required by the Circuit Court in any cause or matter in which money shall have been paid or transferred under paragraph (3) (b) of this rule.
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(6)Money paid into or transferred to the Circuit Court under this rule shall (subject to any order or direction that may be given in the judgment or order for payment or transfer thereof) be held, invested, applied or otherwise dealt with for the benefit of such plaintiff in such manner as the Circuit Court in its discretion thinks fit and in accordance with the Circuit Court Rules for the time being in force.
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(7)Nothing in this rule shall prejudice the lien of a solicitor for costs.
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(8)Subject to any order which may be made by the Court (whether on consent or otherwise) as to the costs of the plaintiff or plaintiffs in any such cause or matter, or as to the amount of such costs or the mode of payment thereof:— (i) The costs of the plaintiff, or if more than one, of all the plaintiffs in any such cause or matter or incident to the claims therein or consequent thereon shall, as regards costs ordered to be paid to such plaintiff or plaintiffs by the defendant or any other party to such cause or matter be taxed by the Taxing Master as between party and party; (ii) The costs (if any) of the plaintiff or if more than one of all such plaintiffs not ordered to be paid by or recoverable from any other party shall be taxed by the Taxing Master as between solicitor and client on notice to the General Solicitor for Wards of Court, and if any portion of such costs be payable by any adult party to the cause or matter who is sui juris the Taxing Master shall certify the amount of such portion and the portions payable by such infant or person of unsound mind; and no costs other than those so certified shall be payable to the solicitor for any plaintiff in the cause or matter.
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(9)This rule shall apply mutatis mutandis to:— ( a ) money recovered on a counterclaim; ( b ) money recovered by a person of unsound mind whether so found by inquisition or not so found; ( c ) any action settled on behalf of an infant before trial.
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11.Money paid into Court or investments made under the provisions of rule 10, and the dividends or interest thereon, shall be sold, transferred, or paid out to the party entitled thereto, pursuant to the order of the Court.
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12.Money may be paid into Court under this Order by one or more of several defendants sued jointly or in the alternative upon notice to the other defendant or defendants. If the plaintiff elects within the time limited by this Order to accept the money paid into Court, he shall give notice as in rule 4 mentioned to each defendant and thereupon all further proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall be stayed and the money shall not be paid out except in pursuance of an order of the Court dealing with the whole costs of the action or cause or causes of action (as the case may be).
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13.In any cause or matter in which damages are claimed under the Civil Liability Act, 1961 , Part IV, money paid into Court under this Order shall not be paid out without an order of the Court.
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ORDER 23. REPLY AND SUBSEQUENT PLEADINGS.
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1.No reply shall be necessary in any case where all the material statements of fact in the relevant pleading are merely to be denied and put in issue.
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2.A plaintiff shall deliver his reply, where necessary, within fourteen days from the delivery of the defence or the last of the defences unless the time shall be extended by the Court.
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3.No pleading subsequent to reply other than a joinder of issue shall be pleaded without leave of the Court, and then only upon such terms as the Court shall think fit.
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4.Subject to rule 3, every pleading subsequent to reply shall be delivered within four days from the delivery of the previous pleading, unless the time shall be extended by the Court.
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5.Where a counterclaim is pleaded, a reply thereto shall be subject to the rules applicable to a defence.
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6.As soon as any party has joined issue upon the preceding pleading of the opposite party simply without adding any further or other pleading thereto, or has made default as mentioned in Order 27, rule 11, the pleadings as between such parties shall be deemed to be closed.
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ORDER 24. MATTERS ARISING PENDING THE ACTION.
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1.Any ground of defence which has arisen after action brought but before the defendant has delivered his defence, and before the time limited for his doing so has expired, may be raised by the defendant in his defence, either alone or together with other grounds of defence; and if, after a defence has been delivered, any ground of defence arises to any set-off or counterclaim alleged therein by the defendant, it may be raised by the plaintiff in his reply, either alone or together with any other ground of reply.
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2.Where any ground of defence arises after the defendant has delivered a defence, or after the time limited for his doing so has expired, the defendant may, and where any ground of defence to any set-off or counterclaim arises after reply, or after the time limited for delivering a reply, has expired, the plaintiff may, within eight days after such ground of defence has arisen, or any subsequent time by leave of the Court, deliver a further defence or further reply as the case may be, setting forth the same.
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3.Whenever any defendant, in his defence, or in any further defence as in rule 2 mentioned alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of such defence (which confession may be in the Form No. 7 in Appendix C), and may thereupon sign judgment for his costs up to the time of the pleading of such defence, unless the Court shall, either before or after the delivery of such confession, otherwise order.
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ORDER 25. TRIAL OF POINT OF LAW.
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1.Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.
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2.If, in the opinion of the Court, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counterclaim, or reply therein, the Court may thereupon dismiss the action or make such other order therein as may be just.
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ORDER 26. DISCONTINUANCE.
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1.The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application), by notice in writing in the Form No. 20 in Appendix C, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or, if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such costs shall be taxed. The plaintiff may, however, at any time prior to the setting down of any cause for trial wholly discontinue his action, with or without costs to be paid by any party, upon producing to the proper officer a consent in writing signed by all parties or by their solicitors and such costs (if any) shall be taxed.
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Such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this rule otherwise provided, it shall not be competent for the plaintiff to discontinue the action without leave of the Court, but the Court may before, or at, or after, the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. The Court may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave.
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2.When a cause has been entered for trial, it may be withdrawn by either plaintiff or defendant, upon producing to the proper officer a consent in writing signed by the parties or by their solicitors. The consent shall include the list number and trial venue of the case.
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3.Any defendant may enter judgment for the costs of the action, if it is wholly discontinued against him, or for the costs occasioned by the matter withdrawn, if the action be not wholly discontinued, in case such respective costs are not paid within four days after taxation.
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4.If any subsequent action shall be brought before payment of the costs of a discontinued action, for the same, or substantially the same, cause of action, the Court may order a stay of such subsequent action, until such costs shall have been paid.
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ORDER 27. DEFAULT OF PLEADING.
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1.If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court to dismiss the action, with costs, for want of prosecution; and on the hearing of such application the Court may order the action to be dismissed accordingly, or may make such other order on such terms as the Court shall think just.
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2.Subject to the provisions of rules 15 and 16, if the plaintiff's claim be only for a debt or liquidated demand, or for the recovery of land, or for the delivery of specific goods, and the defendant does not within the time allowed for that purpose deliver a defence, the plaintiff may at the expiration of such time enter final judgment in the Central Office for the amount of such debt or liquidated demand, or that the person whose title is asserted in the statement of claim shall recover possession of the land, or for the delivery of the specific goods without giving the defendant the option of retaining such goods upon paying the value thereof, as the case may be, with costs.
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3.If the plaintiff's claim be for a debt or liquidated demand, or for the recovery of land, or for the delivery of specific goods, and also for pecuniary damages or any other relief, and the defendant does not within the time allowed for that purpose deliver a defence, the plaintiff may enter final judgment as in rule 2 provided and may also apply as in rule 8 provided in respect of the said claim for pecuniary damages or other relief.
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4.When in any such action as in rules 2 and 3 mentioned there are several defendants, if one of them make default as mentioned in the said rules, the plaintiff may enter final judgment against the defendant so making default, and issue execution upon such judgment without prejudice to his right to proceed with his action against the other defendants or against the said defendant under rule 3.
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5.If the action be for recovery of land for non-payment of rent, no judgment shall be entered under this Order until an affidavit has been filed, made by the landlord, his agent, receiver, or clerk, stating that there was, at the commencement of the action, at least one year's rent due above all just and fair allowances.
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6.In an action for the recovery of a holding or of lands including a holding agricultural or pastoral, or partly agricultural and partly pastoral, in its character, for non-payment of rent no judgment shall be entered under this Order until an affidavit has been filed made by the landlord, his agent, receiver, or clerk, verifying the special indorsement on the summons. Such affidavit may be in the Form No. 6 in Appendix A, Part 1.
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7.In probate actions, if any defendant make default in delivering a defence, the action may proceed, notwithstanding such default.
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8.In all other actions than those in the preceding rules of this Order mentioned, if a defendant, being bound to deliver a defence, does not do so within the time allowed, the plaintiff may, subject to the provisions of rule 9, set down the action on motion for judgment and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled to. Any damages to which the plaintiff may be entitled shall be ascertained by the Judge with a jury in case any party requires and is entitled to one, but otherwise without a jury, and, if without a jury, either by the Judge or by the Master or by the Examiner, as the Judge may direct, on evidence by affidavit or otherwise.
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9.(1) Except as provided in sub rule 4 hereof, no notice of motion for judgment in default of defence in actions claiming unliquidated damages in tort or contract may be served unless the plaintiff has at least twenty-one days prior to the service of such notice written to the defendant giving him notice of his intention to serve a notice of motion for judgment and at the same time consenting to the late delivery of defence within twenty-one days of the date of the letter.
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(2)If no defence is delivered within the said period the plaintiff shall be at liberty to serve a notice of motion for judgment in default of defence which shall be returnable to a date not less than fourteen clear days from the date of the service of the notice; such notice of motion to be filed not later than six days before the return date.
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(3)If, not later than seven days after the service of such notice of motion for judgment, the defendant delivers a defence to the plaintiff and not later than six days before the return date lodges a copy thereof in the Central Office with a certified copy of the said notice of motion attached thereto, the said motion for judgment shall not be put in the judge's list but shall stand struck out and the defendant shall pay to the plaintiff the sum of £100 for his costs of the said motion for judgment.
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(4)If, in any case, the plaintiff can establish special reasons making it necessary to serve a notice of motion for judgment in default of defence in the cases provided for by this rule with greater urgency than in accordance with the provisions hereinbefore contained, he may apply ex-parte to the Master of the High Court for an order giving him liberty to serve a notice of motion for judgment in default of defence giving not less than four clear days notice to the defendant.
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10.Where, in any such action as mentioned in rule 8, there are several defendants, then, if one of such defendants make such default as aforesaid, the plaintiff may either (if the cause of action is severable) set down the action at once on motion for judgment against the defendant so making default, or may set it down against him at the time when it is entered for trial or set down on motion for judgment against the other defendants.
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11.If the plaintiff does not deliver a reply, or any party does not deliver any subsequent pleading, within the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue.
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12.In any case in which issues arise in an action other than between plaintiff and defendant, if any party to any such issue makes default in delivering any pleading, the opposite party may apply to the Court for such judgment, if any, as upon the pleadings he may appear to be entitled to, and the Court may order judgment to be entered accordingly, or may make such other order as may be necessary to do complete justice between the parties.
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13.Before judgment by default shall be entered for any debt or liquidated demand under this Order, an affidavit shall be filed specifying the sum then actually due.
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14.Any judgment by default, whether under this Order or under any other of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, and where an action has been set down under rule 8, such setting down may be dealt with by the Court in the same way as if a judgment by default had been signed when the case was set down.
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15.In proceedings brought by a moneylender or the assignee or legal personal representative of a moneylender for the recovery of money lent by the moneylender or any interest thereon, judgment in default of defence shall not be entered until after the expiration of twelve months from the date of issue of the summons by which the proceedings were instituted unless the leave of the Court shall have been first obtained. An application for such leave may be made by motion on notice served not less than four clear days before the hearing; and the provisions of Order 13, rule 14 (2) and (3) shall apply to such application.
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16.In actions to recover a debt or liquidated demand arising under a hire-purchase agreement or credit-sale agreement (as defined by the Hire-Purchase Act, 1946 ) or any contract of guarantee relating to such an agreement, judgment in default of defence shall not be entered until after the expiration of twelve months from the date of issue of the summons by which the proceedings were instituted unless the leave of the Court shall have been first obtained. An application for such leave may be made by motion on notice served, not less than four clear days before the hearing, personally or by registered post addressed to the defendant at his last known place of address; and judgment shall not be entered until an affidavit shall have been filed stating that the requirements specified in section 3 or section 4 (as the case may be) of the Hire-Purchase Act, 1946 , (as amended by sections 21 and 22 of the Hire-Purchase Act, 1960) have been complied with.
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ORDER 28. AMENDMENT.
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1.The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
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2.The plaintiff may, without any leave, amend his statement of claim, whether indorsed on the summons or not, once at any time before the expiration of the time limited for reply, and before replying or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared.
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3.A defendant who has set up any counterclaim or set-off may without any leave, amend such counterclaim or set-off at any time within six days from the delivery of the reply or the expiration of the time allowed for delivery thereof, whichever shall be the shorter.
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4.Where any party has amended his pleading under either rule 2 or rule 3, the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the Court to disallow the amendment, or any part thereof, and the Court may, if satisfied that the justice of the case requires it, disallow the same, or allow it subject to such terms as to costs or otherwise as may be just.
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5.Where any party has amended his pleadings under rule 2 or rule 3, the opposite party shall plead to the amended pleading, or amend his pleading, within the time he then has to plead or within eight days from the delivery of the amendment, whichever shall be the longer; and in case the opposite party has pleaded before the delivery of the amendment, and does not plead again or amend within the time above mentioned, he shall be deemed to rely on his original pleading in answer to such amendment.
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6.In all cases not provided for by the preceding rules of this Order, application for leave to amend may be made by either party to the Court before or at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just.
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7.If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days as the case may be, become ipso facto void, unless the time is extended by the Court.
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8.An indorsement or pleading may be amended by written alterations in the copy which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amendments require the insertion of more than 144 words in any one place, or are so numerous, or of such a nature that the making of them in writing would render the document difficult or inconvenient to read, in either of which cases the amendment must be made by delivering the document as amended, which shall be printed when printing is required under Order 19, rule 9.
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9.Whenever any indorsement or pleading is amended, the same when amended, shall be marked with the date of the order, if any, under which the same is so amended, and of the day on which such amendment is made, in manner following, viz.: \"Amended the day of pursuant to order of dated the day of .\"
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10.Whenever any indorsement or pleading is amended, such amended document shall be delivered to the opposite party within the time allowed for amending the same.
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11.Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion without an appeal.
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12.The Court may at any time, and on such terms as to costs or otherwise as the Court may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.
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13.The costs of and occasioned by any amendment made pursuant to rules 2 and 3 shall be borne by the party making the same, unless the Court shall otherwise order.
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ORDER 29. SECURITY FOR COSTS.
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1.When a party shall require security for costs from another party, he shall be at liberty to apply by notice to the party for such security; and in case the latter shall not, within forty-eight hours after service thereof, undertake by notice to comply therewith, the party requiring the security shall be at liberty to apply to the Court for an order that the said party do furnish such security.
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2.A defendant shall not be entitled to an order for security for costs solely on the ground that the plaintiff resides in Northern Ireland.
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3.No defendant shall be entitled to an order for security for costs by reason of any plaintiff being resident out of the jurisdiction of the Court, unless upon a satisfactory affidavit that such defendant has a defence upon the merits.
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4.A plaintiff ordinarily resident out of the jurisdiction may be ordered to give security for costs though he may be temporarily resident within the jurisdiction.
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5.If a person brings an action for the recovery of land after a prior action for the recovery of the same has been brought by such person or by any person through or under whom he claims, against the same defendant, or against any person through or under whom he defends, the Court may at any time order that the plaintiff shall give to the defendant security for the defendant's costs, whether the prior action has been disposed of by discontinuance or by non-suit or by judgment for the defendant.
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6.Where the Court shall have made an order that a party do furnish security for costs, the amount of such security and the time or times at which, and the manner and form in which, and the person or persons to whom, the same shall be given shall, subject to rule 7, be determined by the Master in every case.
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7.Where a bond is to be given as security for costs, it shall, unless the Master shall otherwise direct, be given to the party or person requiring the security, and not to an officer of the Court. Provided that in any matrimonial cause or matter where security for costs is to be given by bond the bond shall be given to the Master.
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ORDER 30. SIDE-BAR ORDERS.
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The following shall be the side-bar orders of the Court:—
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(1)For plaintiff, lately an infant to proceed in his own name, he having attained his full age (in cases not coming within Order 15, rule 16).
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(2)To proceed against a defendant, lately an infant, he having attained his full age (in cases not coming within Order 15, rule 16).
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(3)To proceed notwithstanding the death of a party, his right surviving.
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(4)To proceed by or against a new Attorney General.
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(5)That a party do furnish a rental.
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(6)That tenants do pay their rents to receiver, sequestrator, guardian, or administrator pendente lite.
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(7)That persons indebted to personal estate do pay the sums due by them to receiver or administrator pendente lite.
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(8)For injunction to sheriff to put purchaser into possession.
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(9)For injunction to sheriff to put tenant into possession.
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(10)To discharge receiver over lands sold by the Land Judge, or over lands comprised in a vesting order made or an agreement fiated by the Irish Land Commission (on production of a certificate of the Irish Land Commission that such vesting order has been made or such agreement fiated, and of the advance having been made in respect of such lands).
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(11)To confirm sale absolutely.
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(12)To receive a consent and make the same a rule of Court in cases heretofore usual.
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(13)To make a conditional order absolute on a certificate of no cause, and to make an order directing payment of such costs (if any) as were reserved on the making of the conditional order.
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(14)For judgment of ouster on a disclaimer.
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(15)To proceed compromise off.
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(16)To change solicitor in matrimonial causes or matters under Order 70, rule 69.
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(17)That the non-appearance of a party cited be taken as a renunciation of his right to probate or administration under Order 79, rule 57.
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(18)That a party cited extract probate or administration, or that his not doing so be taken as a renunciation of his right under Order 79, rule 58.
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(19)In admiralty — to receive agreements in writing under Order 64, rule 52.
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Save as aforesaid no side-bar order shall be entered or made.
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ORDER 31. INTERROGATORIES, DISCOVERY AND INSPECTION.
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1.In any cause or matter where relief by way of damages or otherwise is sought on the ground of fraud or breach of trust, the plaintiff may at any time after delivering his statement of claim, and a defendant may at or after the time of delivering his defence, without any order for that purpose, and in every other cause or matter any party may by leave of the Court, upon such terms as to security for costs or otherwise as the Court may direct, deliver interrogatories in writing for the examination of the opposite parties, or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer: provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose; provided also that interrogatories which do not relate to any matters in question in the cause or matter shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.
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2.A copy of the interrogatories proposed to be delivered shall be delivered with the notice of application for leave to deliver them, unless the Court shall otherwise order, and the particular interrogatories sought to be delivered shall be submitted to and considered by the Court. In deciding upon such application, the Court shall take into account any offer which may be made by the party sought to be interrogated, to deliver particulars, or to make admissions, or to produce documents, relating to any matter in question. Leave shall be given as to such only of the interrogatories as shall be considered necessary either for disposing fairly of the cause or matter or for saving costs.
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3.In adjusting the costs of the cause or matter inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the Taxing Master or of the Court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.
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4.Interrogatories shall be in the Form No. 8 in Appendix C.
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5.If any party to a cause or matter be a body corporate or a joint stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly.
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6.Any objection to answering any one or more of several interrogatories on the ground that it is or they are scandalous or irrelevant, or not bona fide for the purpose of the cause or matter, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer.
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7.Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary, or scandalous: and any application for this purpose may be made within seven days after service of the interrogatories.
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8.Interrogatories shall be answered by affidavit to be filed within ten days, or within such other time as the Court may allow.
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9.An affidavit in answers to interrogatories shall be in the Form No. 9 in Appendix C.
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10.No exception shall be taken to any affidavit in answer but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court on motion.
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11.If any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the Court for an order requiring him to answer, or to answer further, as the case may be; and an order may be made requiring him to answer or answer further, either by affidavit or by viva voce examination, as the Court may direct.
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12.(1) Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or make such order on such terms as to security for the costs of discovery or otherwise and either generally or limited to certain classes of documents as may be thought fit.
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(2)On any such application the Court, in lieu of ordering an affidavit of documents to be filed, may order that the party from whom discovery is sought shall deliver to the opposite party a list of the documents which are or have been in his possession, custody, or power, relating to the matters in question. Such list shall, as nearly as may be, follow the form of the affidavit prescribed in rule 13. The ordering of the delivery of such list shall not preclude the Court from afterwards ordering the making and filing of an affidavit of documents.
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(3)An order shall not be made under this rule if and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.
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13.The affidavit, to be made by a party against whom such order as is mentioned in rule 12 (1), has been made, shall specify which, if any, of the documents therein mentioned he objects to produce, and it shall be in the Form No. 10 in Appendix C.
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14.The Court may at any time during the pendency of any cause or matter, order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such cause or matter, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.
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15.Every party to a cause or matter shall be entitled at any time, by notice in writing, to give notice to any other party, in whose pleadings, or affidavit or list of documents reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit copies thereof to be taken; and any party not complying with such notice shall not afterwards be at liberty to put any such documents in evidence on his behalf in such cause or matter, unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice; in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit.
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16.Notice to any party to produce any documents referred to in his pleadings or affidavit or list of documents shall be in the Form No. 11 in Appendix C.
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17.The party to whom such notice is given, shall, within two days from the receipt of such notice, if all the documents therein referred to have been set forth by him in such affidavit or list as is mentioned in rule 13, or if any of the documents referred to in such notice have been set forth by him in any such affidavit or list, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof, at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, or in the case of bankers' books or other books of account, or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in the Form No. 12 in Appendix C.
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18.(1) If the party served with notice under rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his solicitor, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit; and, except in the case of documents referred to in the pleadings or affidavits of the party against whom the application is made, or disclosed in his affidavit or list of documents, such application shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them and that they are in the possession or power of the other party.
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(2)An order shall not be made under this rule if and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.
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19.If the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the cause or matter, or that for any other reason it is desirable that any issue or question in dispute in the cause or matter should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.
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20.(1) Where inspection of any business books is applied for, the Court may, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations, or alterations. Provided that, notwithstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made.
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(2)Where on an application for an order for inspection privilege is claimed for any document, the Court may inspect the document for the purpose of deciding as to the validity of the claim for privilege.
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(3)The Court may, on the application of any party to a cause or matter at any time, and whether an affidavit or list of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been in his possession or power; and, if not then in his possession, when he parted with the same, and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time had, in his possession or power the document or documents specified in the application, and that they relate to the matters in question in the cause or matter, or to some of them.
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21.If any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court for an order to that effect, and an order may be made accordingly.
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22.Service of an order for interrogatories or discovery or inspection made against any party on his solicitor shall be sufficient service to found an application for an attachment for disobedience to the order. But the party against whom the application for attachment is made may show in answer to the application that he has had no notice or knowledge of the order.
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23.A solicitor, upon whom an order against any party for interrogatories or discovery or inspection is served under rule 22, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to attachment.
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24.Any party may, at the trial of a cause, matter, or issue, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer; provided always that in such case the Court may look at the whole of the answers, and if it shall be of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them, it may direct them to be put in.
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25.In every cause, or matter, the costs of discovery, by interrogatories, or otherwise, shall unless otherwise ordered by the Court, be allowed, as part of the costs of the party seeking discovery, either as between party and party or solicitor and client, where, and only where, such discovery shall be certified by the Court at the trial, or, if there is no trial, shall appear to the Court, or to the Taxing Master, upon special grounds to be certified by such Taxing Master, to have been reasonably asked for.
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26.In any action against or by a sheriff or county registrar in respect of any matters connected with the execution of office of sheriff, the Court may, on the application of either party, order that the affidavit to be made in answer either to interrogatories or to an order for discovery shall be made by the officer actually concerned.
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27.This Order shall apply to infant plaintiffs and defendants and to their next friends and guardians ad litem.
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28.This Order shall not authorise an order for discovery or inspection being made against an informant suing on behalf of the State or the People, and every such informant shall be entitled without an order for that purpose to deliver interrogatories at any time before issue joined.
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29.Any person not a party to the cause or matter before the Court who appears to the Court to be likely to have or to have had in his possession custody or power any documents which are relevant to an issue arising or likely to arise out of the cause or matter or is or is likely to be in a position to give evidence relevant to any such issue may by leave of the Court upon the application of any party to the said cause or matter be directed by order of the Court to answer such interrogatories or to make discovery of such documents or to permit inspection of such documents. The provisions of this Order shall apply mutatis mutandis as if the said order of the Court had been directed to a party to the said cause or matter provided always that the party seeking such order shall indemnify such person in respect of all costs thereby reasonably incurred by such person and such costs borne by the said party shall be deemed to be costs of that party for the purposes of Order 99.
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ORDER 32. ADMISSIONS.
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1.Any party to a cause or matter may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.
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2.Either party may call upon the other party to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such documents shall be paid by the party so neglecting or refusing, whatever the result of the cause or matter may be, unless at the trial or hearing the Court shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give the notice is, in the opinion of the Taxing Master, a saving of expense.
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3.A notice to admit documents shall be in the Form No. 13 in Appendix C.
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4.Any party may, by notice in writing, at any time not later than nine days before the day for which notice of trial has been given, call on any other party to admit, for the purposes of the cause, matter, or issue only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the cause, matter, or issue may be, unless at the trial or hearing the Court shall certify that the refusal to admit was reasonable, or unless the Court shall at any time otherwise order or direct.
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Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular cause, matter, or issue, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice. Provided also that the Court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just; and provided further that all such costs and expenses as in the opinion of the Taxing Master or the Court have been caused by the omission of any party to serve such notice as aforesaid shall, whatever the result of the cause, matter, or issue, may be, unless the Court shall otherwise order, be paid by the party omitting to serve such notice.
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5.A notice to admit facts shall be in the Form No. 14 in Appendix C and admissions of facts shall be in the Form No. 15 in Appendix C.
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6.Any party may at any stage of a cause or matter, where admissions of fact have been made, either on the pleadings or otherwise apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may upon such application make such order, or give such judgment, as the Court may think just.
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7.An affidavit of the solicitor of the due signature of any admissions made in pursuance of any notice to admit documents or facts, shall be sufficient evidence of such admissions, if evidence thereof be required.
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8.Notice to produce documents shall be in the Form No. 16 in Appendix C. An affidavit of the solicitor, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served.
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9.If a notice to admit or produce comprises documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice.
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ORDER 33. ISSUES, ACCOUNTS AND INQUIRIES.
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1.Where in any cause or matter it appears to the Court that the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues, and such issues shall, if the parties differ, be settled by the Court.
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2.The Court may, at any stage of the proceedings in a cause or matter, direct any necessary inquiries to be made or accounts taken, notwithstanding that it may appear that there is some special or further relief sought or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.
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3.The Court may, either by the judgment or order directing an account to be taken, or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that in taking the account, the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised.
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4.Where any account is directed to be taken, the accounting party, unless the Court shall otherwise direct, shall make out his account and verify the same by affidavit. The items on each side of the account shall be numbered consecutively and the account shall be referred to by the affidavit as an exhibit and be left in the proper office.
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5.Any party seeking to charge any accounting party beyond what he has by his account admitted to have received or objecting to the allowance of any sum claimed as a disbursement in such account, shall give notice in writing to the accounting party, stating, so far as he is able, the amount sought to be charged or the items objected to (as the case may be), the particulars thereof and (in the case of an objection) the reasons therefor in a short and succinct manner; and such accounting party shall be at liberty to reply to such charge or objection (as the case may be) by giving notice in writing to such first-named party, the particulars in such reply to be also stated in a short and succinct manner. Any notice in writing given under this rule shall be given within such time or times as the officer taking the account may generally or in any particular case fix. Such notice shall be in the Form No. 13 in Appendix G.
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6.Every judgment or order for a general account of the personal estate of a testator or intestate shall contain a direction for an inquiry as to what parts (if any) of such personal estate are outstanding or, undisposed of, unless the Court shall otherwise direct.
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7.A judgment or order for an account given or made on behalf of an incumbrancer shall direct an account to be taken of all incumbrances subsequent as well as prior to, or contemporaneous with the plaintiff's demand, and an inquiry as to the respective priorities of all such demands as shall be proved; and when any surplus produce of any sale, had under such judgment or order, after payment of the demands and costs of the plaintiff, and prior and contemporaneous incumbrances shall remain in Court, the same shall be distributed amongst the incumbrancers who may have proved their demands in the cause, according to their priorities, if the Court shall so order: Provided always, that if the Court shall be of opinion that extending the account to incumbrances subsequent to the demand of the plaintiff will improperly delay the plaintiff in recovering his demand, the account shall be confined to the rights of the plaintiff, and of incumbrancers prior to and contemporaneous with him.
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8.Any incumbrancer subsequent in order of priority to the demand of the plaintiff, in case any lands or property the subject of such suit shall remain unsold, after provision for the plaintiff's demands and those of prior incumbrancers, shall be at liberty to apply to the Court for an order directing a sale of such unsold lands or property, or a competent part thereof, for payment of the demands subsequent to that of the plaintiff, which may have been proved as aforesaid; and the Court may accordingly direct such sale, if of opinion that such incumbrancers, or any of them, would be entitled to have their demands raised by a sale of such lands or property; or may direct a receiver to be appointed or continued over such unsold land or property, for the benefit of such subsequent incumbrancers and distribute the funds to be received by such receiver accordingly.
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9.Where by any judgment or order, any accounts are directed to be taken or inquiries to be made, each such direction shall be numbered, so that, as far as may be, each distinct account and inquiry may be designated by a number and such judgment or order shall be in the Form No. 29 in Appendix G.
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10.In taking any account directed by any judgment or order, all just allowances shall be made without any direction for that purpose.
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11.If it shall appear to the Court on the representation of the Examiner or otherwise that there is any undue delay in the prosecution of any accounts or inquiries or in any other proceedings under any judgment or order, the Court may require the party having the conduct of the proceedings, or any other party, to explain the delay, and may thereupon make such order with regard to expediting the proceedings or the conduct thereof, or the stay thereof, and as to the costs of the proceedings, as the circumstances of the case may require; and for the purposes aforesaid, any party, or a special solicitor to be named by the Court for the purpose, may be directed to summon the persons whose attendance is required, and to conduct any proceedings, and carry out any directions which may be given; and any costs of such special solicitor shall be paid by such parties or out of such funds as the Court may direct; and if any such costs be not otherwise paid, the same shall be paid out of such moneys (if any) as the Oireachtas may provide.
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ORDER 34. SPECIAL CASE.
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1.The parties to any cause or matter may concur in stating the questions of law arising therein in the form of a special case for the opinion of the Court. Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the Court to decide the questions raised thereby. Upon the argument of such case the Court and the parties shall be at liberty to refer to the whole contents of such documents, and the Court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial.
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2.If it appear to the Court that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to an arbitrator, the Court may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.
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3.Every special case shall be printed by the plaintiff and signed by the several parties or their counsel or solicitor, and shall be filed by the plaintiff. Printed copies for the use of the Court shall be delivered by the plaintiff.
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4.No special case in any cause or matter to which an infant, or person of unsound mind not so found by inquisition, is a party, shall be set down for argument without leave of the Court, the application for which must be supported by sufficient evidence that the statements contained in such special case, so far as the same affect the interest of such infant, or person of unsound mind, are true.
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5.Either party may enter a special case for argument by delivering to the proper officer a memorandum of entry, in the Form No. 26 in Appendix C, and also if any infant, or person of unsound mind, not so found by inquisition be a party to the cause or matter, producing a copy of the order giving leave to enter the same for argument.
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6.The parties to a special case may, if they think fit, enter into an agreement in writing, that, on the judgment of the Court being given in the affirmative or negative of the questions of law raised by the special case, a sum of money, fixed by the parties, or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of the parties to the other of them, either with or without costs of the cause or matter; and the judgment of the Court may be entered for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal.
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7.This Order shall apply to every special case stated in a cause or matter, or in any proceeding incidental thereto, and to any special case stated for the opinion of the Court in pursuance of any statute relating to the Revenue so far as the same is not inconsistent with the provisions of such statute.
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8.Any special case may hereafter be stated for the same purposes as provided by the Chancery (Ireland) Act, 1867 (30 & 31 Vic. c. 44) and the provisions of the said Act shall apply to such case, save in so far as the same may be inconsistent with this Order.
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ORDER 35. ISSUES OF FACT WITHOUT PLEADINGS.
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1.When the parties to a cause or matter are agreed as to the questions of fact to be decided between them, they may, after issue of the summons and before judgment, by consent and order of the Court, proceed to the trial of any such questions of fact without formal pleadings; and such questions may be stated for trial in an issue in the Form No. 17 in Appendix C, and such issue may be entered for trial and tried in the same manner as any issue joined in an ordinary action, and the proceedings shall be under the control and jurisdiction of the Court, in the same way as the proceedings in an action.
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2.The Court may by consent of the parties order that, upon the finding in the affirmative or negative of such issue as in rule 1 mentioned, a sum of money, fixed by the parties, or to be ascertained upon a question inserted in the issue for that purpose, shall be paid by one of the parties to the other of them either with or without the costs of the cause or matter.
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3.Upon the finding of any such issue, as in rule 1 mentioned, judgment may be entered for the sum so agreed or ascertained as aforesaid, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless the Court shall order a stay of execution with a view to an appeal.
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4.The proceedings upon such issue, as in rule 1 mentioned, may be recorded at the instance of either party, and the judgment, whether actually recorded or not, shall have the same effect as any other judgment in a contested action.
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ORDER 36. TRIAL.
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I. Place and mode of trial.
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1.All proceedings in the High Court shall be tried at the Four Courts, Dublin, unless otherwise ordered or provided by statute or by these Rules.
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2.( a ) Subject to the provisions of paragraph (b) of this rule, an application by any party for an order for the trial of any proceedings elsewhere than in Dublin may be made to a Judge at any time after the close of the pleadings by motion on notice to the other party or parties to such proceedings or, if such other party or parties consent thereto, by motion ex-parte. ( b ) In the case of any proceedings which the parties are entitled as of right to have tried with a jury, notice of trial may be served for any of the following venues—Cork, Limerick, Galway, Sligo, Dundalk, Kilkenny without prior application to the Court, and the matter may be set down for trial at such venue. ( c ) In the event of any party serving a notice of trial for a venue under paragraph 2 (b) of this rule any other party may apply to the Court by notice of motion to vary the venue.
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3.A notice of trial shall be served in all actions commenced by plenary summons or adjourned for plenary hearing (other than probate and admiralty actions) and all such actions or matters shall be set down for trial in the Central Office. Motions to set aside a notice of trial shall be brought within four days after service of the notice complained of.
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4.The plaintiff in probate and admiralty actions commenced by plenary summons and the petitioner in matrimonial matters commenced by petition, shall apply, by motion on notice to the Master for directions, and the Master, or the Court, if the Master shall have placed the motion in the Court list, shall fix the time and mode of trial and make any ancillary order with respect of pleadings, particulars, discovery, interrogatories, inspection of documents, inspection of real or personal property, commissions, examination of witnesses, settlement of issues, or otherwise, which may be necessary or expedient. Provided that in case the plaintiff in any such probate or admiralty action or the petitioner in any such matrimonial matters shall fail so to apply within fourteen days from the delivery of the last pleading, any defendant or any respondent, as the case may be, may apply for directions as aforesaid.
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5.All causes or matters, which the parties are not entitled as of right to have tried with a jury, shall be tried by a Judge without a jury, unless the Court shall otherwise order.
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6.In all cases not within rule 5, the party serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried with or without a jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within fourteen days from the service of notice of trial, or within such time as the Court may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.
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7.The Court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which, without any consent of parties, can be tried without a jury, and such trial may, if so ordered by the Court, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.
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8.If it be made to appear at any time after the issuing of the proceedings to the satisfaction of the Court upon the application of either party that the matter in dispute consists wholly or in part of matters of account which cannot conveniently be tried in the ordinary way, the Court upon such application may decide such matter in a summary manner, or order that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties or to the Master or Examiner upon such terms as to costs and otherwise as the Court shall think reasonable.
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9.Subject to the provisions of the preceding rules of this Order, the Court may in any cause or matter, at any time or from time to time, order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others, and in all cases may order that one or more issues of fact be tried before any other or others.
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10.Every trial of any question or issue of fact with a jury shall be by a Judge, unless such trial be specially ordered to be by two or more Judges.
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II. Notice of trial and setting down.
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11.Notice of trial may be given in any cause or matter by the plaintiff or other party in the position of plaintiff. Such notice may be given with the reply (if any) whether it closes the pleadings or not, or at any time after the issues of fact are ready for trial.
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12.( a ) If the plaintiff in any action does not within three weeks after the close of the pleadings give notice of trial, the defendant may on notice to the plaintiff apply to the Court for liberty to give notice of trial, and on the hearing of such application the Court may make such order, on such terms, as to the Court shall seem just. ( b ) If the plaintiff in any action does not within six weeks after the close of the pleadings, or within such extended time as the Court may allow, give notice of trial, the defendant may, before notice of trial given by the plaintiff, give notice of trial (which, in cases where the plaintiff is entitled as of right to a jury, shall be for trial with a jury), or may apply to the Court to dismiss the action for want of prosecution; and on the hearing of such application, the Court may order the action to be dismissed accordingly, or may make such other order, and on such terms, as to the Court may seem just.
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13.If within fourteen days after the order of the Master or the Court fixing the time and mode of trial the petitioner shall not enter a matrimonial proceeding for trial, the respondent may enter such proceeding for trial, or may apply to the Court to dismiss the petition for want of prosecution.
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14.If within fourteen days after the order of the Master or the Court fixing the time and mode of trial, the plaintiff in a probate or an admiralty action shall not enter the action for trial, the defendant may enter the action for trial.
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15.Notice of trial shall state whether it is for the trial of the cause or matter or of issues therein, and shall be in one of the Forms Nos. 18 and 19 in Appendix C.
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16.Twenty-one days' notice of trial shall be given, unless the party to whom it is given has consented, or is under terms, or has been ordered, to take short notice of trial; and shall be sufficient in all cases, unless otherwise ordered by the Court. Short notice of trial shall be four days' notice, unless otherwise ordered.
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17.Notice of trial shall be given before setting down the action for trial.
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18.Unless, within fourteen days after notice of trial is given the action shall be set down by one party or the other, the notice of trial shall be no longer in force.
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19.Notice of trial or the setting down or entering for trial shall not be or operate as for any particular sittings; but shall be deemed to be for any day after the expiration of the notice on which the trial may come on in its order upon the list.
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20.No notice of trial shall be countermanded except by consent or by leave of the Court, which leave may be given subject to such terms as to costs, or otherwise, as may be just.
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21.If the party giving notice of trial omits to set down the action within seven days after giving notice of trial, the party to whom notice has been given may, unless the notice has been countermanded under rule 20, set down the action subject to rule 18.
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22.The officer having the management of the Central Office for the time being shall be the proper officer to make entries and render accounts of all fines or penal sums imposed by the Court.
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23.When any cause or matter shall have been adjourned for further consideration, the same may, after the expiration of eight days, and within fourteen days from the filing of the Examiner's certificate, be set down for further consideration, on the written request of the solicitor for the plaintiff or party having the conduct of the proceedings, and after the expiration of such fourteen days the cause or matter may be set down by the Registrar on the written request of the solicitor for the plaintiff or for any other party; and in either case, upon production of the judgment or order adjourning further consideration, or a copy thereof and a copy of the Examiner's certificate or a memorandum of the date when the certificate was filed, indorsed on the request by the proper officer. The request may be in the form No. 27 in Appendix G. The cause or matter when so set down shall not be put into the list for further consideration until after the expiration of six days from the day on which the same was so set down. Notice thereof shall be given to the other parties in the action at least four days before the day for which the same may be so marked for further consideration. Such notice may be in the Form No. 28 in Appendix G.
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III. Papers for Judge.
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24.The party desiring to set down the proceedings for trial shall do so by delivering to the proper officer a copy of the notice of trial together with two copies of the whole of the pleadings, and of any letter or notice for particulars and reply thereto, one of which shall be for the use of the Judge at the trial.
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25.The party entering a probate action for trial shall, together with the two copies of the whole pleadings, deliver to the proper officer a list with names and dates of all caveats, warnings, citations and appearances lodged, filed, issued or entered down to the date of such delivery and a copy of the order fixing the time and mode of trial.
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26.The party entering for trial a matrimonial proceeding commenced by petition shall deliver to the proper officer two copies of the whole of the pleadings, and a copy of the order fixing the time and mode of trial and the issues to be tried.
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27.The party entering any proceedings for trial or his solicitor shall lodge a separate certificate certifying that all copies lodged are true copies.
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IV. Proceedings at trial.
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28.If, when a trial is called on, the plaintiff appears, and the defendant does not appear, the plaintiff may prove his claim, so far as the burden of proof lies upon him.
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29.In an action for the recovery of land, in case the title of the plaintiff shall appear to have existed as alleged in the summons at the time of service thereof, but it shall also appear to have expired before the time of trial, the plaintiff shall, notwithstanding, be entitled to a verdict according to the fact that he was so entitled at the time of bringing the action and serving the summons, and to a judgment for his costs of suit.
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30.In an action for the recovery of land, if the plaintiff appears and the defendant does not appear, the plaintiff shall be entitled to a verdict, without any proof of his title, and in case of an action for the recovery of land, grounded on title, shall be entitled to prove the amount of damages sustained by reason of the loss of the mesne rates and profits, and in case of an action for the recovery of land for non-payment of rent, shall be entitled to prove the amount of rent actually due, and to have a verdict for the same.
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31.In cases coming within rule 30, where the action is for the recovery of land for non-payment of rent, the amount of rent due may be proved by the affidavit of the landlord, his agent, receiver or clerk.
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32.If, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but, if he has a counter-claim, then he may prove such counter-claim so far as the burden of proof lies upon him.
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33.Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem fit, upon an application made within six days after trial.
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34.The Judge may, if he thinks it expedient for the interests of justice, postpone or adjourn a trial for such time, and upon such terms, if any, as he shall think fit.