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Fiji Court Rules |
FIJI
THE
HIGH
COURT
RULES
1988
PREFACE
The High Court Rules 1988
now replaces the Supreme Court Rules 1968 which has been revoked. The latter
Rules has regulated civil proceedings
in the Supreme Court (now the High Court)
since 1969. Those Rules were adapted from the English Rules of the Supreme Court
1965 by
way of modifications of those Rules to suit local circumstances. In this
context the term "modifications" denoted the method of adaptation
of the English
Rules to be applied in Fiji i.e. by exceptions, qualifications, deletions,
substitutions and additions. The English
Rules were thus extensively annotated
to produce the "Applied Rules", as the local version of the Rules was known. The
idea that
Fiji should have its own self-contained rules of court was mooted
often over the years. Because of lack of funds and non-availability
of a
suitable person to undertake the work, matters had remained in the doldrums
until two years ago when this project started. Before
this and for a long time
judges and legal practitioners alike were obliged to use the annotated version
of the 1965 English Rules
contained in the 1967 volume of the English Supreme
Court Practice to discover the Applied Rules. To compound the problem only few
volumes of the English Supreme Court Practice 1967 were available for general
use. Under these circumstances the promulgation of
the High Court Rules 1988 is
certain to be greeted with profound
satisfaction.
It was Mr Stanley
Weinberg of the British Voluntary Services Unit who was mainly responsible for
the arduous work of collating and
arranging the rules for publication in a new
setting. Our deep appreciation goes to him and to the Unit for making his
services available
to us. A Rules Committee comprising two former judges and
several members of the legal profession acted in an advisory capacity.
Their
advice on revisional aspects of the project is greatly appreciated. Mr Neil
Adsett formerly of the Crown Law Office studiously
checked the completed draft
text and arrangements of the rules and made corrections inevitable in a work of
this size and complexity.
His dedicated work made it possible for the first
proof of the rules to become available from the Government Printer much earlier
than it would have been. We are much indebted to him. The staff of the
Government Printer were most helpful in publishing the rules
and binding them in
book form. We are grateful to them as we do all others who contributed in one
way or other in making a success
of this important
project.
The High Court Rules can
with justification be described as home-grown rules having been tested in our
courts in multifarious litigations
over the years. The same numbering of Orders
as in the English Rules has been maintained. This was done to assist reference
to English
case law on interpretation of rules similar to our
own.
The publication and binding of
the High Court Rules, in a book format has brought to fruition a long cherished
goal of the Judicial
Department and the legal profession. The achievement marks
an important and historic milestone in the development of procedural laws
in
Fiji.
T.
U. TUIVAGA
Chief Justice
March, 1988.
________
THE HIGH COURT RULES, 1988
Rules* made by the Chief
Justice in exercise of his powers under Section 25 of the Supreme Court
Act.
* In force on 31 March 1988 (see Legal Notice No. 37 of
1988). The former Supreme Court Rules published in Cap. 13 of the 1978 Revised
Edition of the Laws of Fiji (and amended by Legal Notice Nos. 3 of 1981, 78 of
1981, 24 of 1982, 54 of 1984, 79 of 1985, 31 of 1987)
are repealed from 30 March
1988 but continue to apply, in certain circumstances, to actions commenced
before that day (see O.1, R.13
and the transitional provisions in Legal Notice
No. 37 of 1988.)
________
RULES OF THE HIGH COURT
PRELIMINARY
ORDER
1.
Short title, Interpretation, Application,
forms
2. Effect of
Non-Compliance
3. Time
COMMENCEMENT AND PROGRESS OF PROCEEDINGS
4. Consolidation of
Proceedings
5. Mode of Beginning Civil
Proceedings
6. Writs of Summons:
General Provisions
7. Originating
Summonses: General Provisions
8.
Originating and Other Motions: General
Provisions
9. Petitions: General
Provisions
10. Service of Originating
Process: General Provisions
11. Service
of Process, etc. out of the
Jurisdiction
12. Acknowledgement of
Service to Writ or Originating
Summons
13. Failure to Give Notice of
Intention to Defend
14. Summary
Judgment
15. Causes of Action,
Counter-claims and Parties
16. Third
Party and Similar Proceedings
17.
Interpleader
Pleadings
19.
Default of Pleadings
20.
Amendment
21. Withdrawal and
Discontinuance
22. Payment into and out
of Court
23. Security for
Costs
24. Discovery and Inspection of
Documents
25. Summons for
Directions
26.
Interrogatories
27.
Admissions
28. Originating Summons
Procedure
29. Interlocutory
Injunctions, Interim Preservation of Property, Interim Payments,
etc.
30.
Receivers
31. Sales, Etc., of Land by
Order of Court
32. Applications and
Proceedings in Chambers
33. Place and
Mode of Trial
34. Setting Down for
Trial
35. Proceedings at
Trial
36.
Inquiries by Registrar and Special
Referees
37. Assessment of
Damages
38.
Evidence
39. Evidence by Deposition:
Examiners of the Court
40. Court
Expert
41.
Affidavits
42. Judgments and
Orders
43. Accounts and
Inquiries
44. Proceedings under
Judgments & Orders
ENFORCEMENT OF JUDGEMENT AND ORDERS
45. Enforcement of
Judgments & Orders: General
46.
Writs of Execution: General
47. Writs
of Fieri
Facias
48. Examination of Judgments
Debtor, etc.
49. Garnishee
Proceedings
50. Charging Orders, Stop
Orders, etc.
51.
Unallocated
52.
Committal
53. Applications for Judicial
Review
54. Applications for Writ of
Habeas Corpus
55. Appeals to High Court
from Court, Tribunal or Person:
General
56. Appeals to High Court by
Case States: General
57. Supplementary
Provisions in Respect of Proceedings before a Single
Judge.
58. Appeals from Registrar and
Deputy Registrars
59-61.
Unallocated
62. Costs
GENERAL AND ADMINISTRATIVE PROVISIONS
63. Filing, Inspection,
etc., of Documents in Registry
64.
Sittings, Vacations and Office
Hours
65. Service of
Documents
66. Papers, Printing, Notices
and Copies
67. Change of Barrister and
Solicitor
68. Official Short Hand
Note
PROVISIONS AS TO FOREIGN PROCEEDINGS
69. Service of Foreign
Process
70. Obtaining Evidence for
Foreign Courts, etc.
71. Reciprocal
Enforcement of Judgments
72.
Unallocated
73. Arbitration
Proceedings
74-75.
Unallocated
SPECIAL PROVISIONS AS TO PARTICULAR PROCEEDINGS
76. Probate
Proceedings
77. Proceedings by and
against the State
78. Proceedings
transferred or removed to High
Court
79.
Unallocated
80.
Disability
81.
Partners
82.
Unallocated
83. Moneylenders'
actions
84.
Unallocated
85. Administration and
Similar Actions
86. Actions for
Specific Performance, etc.: Summary
Judgment
87. Debenture Holders'
Actions: Receiver's Register
88.
Mortgage Actions
89.
Unallocated
90. Proceedings Relating to
Minors
91-98.
Unallocated
99. The Inheritance (Family
Provision) Act
100. The Trade Marks
Act
101-102.
Unallocated
103. The Patents Act: The
United Kingdom Designs (Protection)
Act
104. Maintenance (Prevention of
Desertion and Miscellaneous Provisions) Act: Attachment of
Earnings
105-107.
Unallocated
108. Proceedings Relating
to Charities: The Charitable Trusts
Act
109.
Unallocated
110. Assisted
Persons
111. Absconding
Debtors
112.
Unallocated
113. Summary Proceedings
for Possession of Land
Form 1-Writ (O.6, r.1)
Form 2-Acknowledgment of Service (O.6, r.6)
Form 3-Originating Summons (O.7, r.2)
Form 4-Originating Summons (O.7, r.2) (O.80, r.9)
Form 5-Originating Summons-Ex Parte (O.7, r.2)
Form 6-Originating Motion (O.8, r.3)
Form 7-Notice of Motion (O.8, r.3)
Form 8-Counterclaim Indorsement Notice (O.15, r. 3(5))
Form 9-Third Party Notice (O.16, r.1)
Form 11-Notice of Payment into Court (O.22, r.1)
Form 12-Notice of Acceptance of Money Paid into Court (O.22, r.3)
Form 13-List of Documents (O.24, r.5)
Form 14-Affidavit Verifying List of Documents (O.24, r.5)
Form 15-Notice of Appointment to Hear Originating Summons (O.28, r.3)
Form 16-Writ of Subpoena (O.38, r.14)
Form 17-Order for Examination before a Judge (O.39, r.1)
Form 18-Order for Issue of Letter of Request to Judicial Authority out of Jurisdiction (O.39, r.2)
Form 19-Order for Appointment of Examiner to Take Evidence of Witness out of Jurisdiction (O.39, r.2)
Form 20-Letter of Request for Overseas Examination (O.39, r.3)
Form 21-Notice of Judgment or Order (O.44, r.2)
Form 22-Writ of Fieri Facias (O.45, r.11)
Form 23-Writ of Delivery (O.45, r.11)
Form 24-Writ of Possession (O.45, r.11)
Form 25-Writ of Sequestration (O.45, r.11)
Form 26-Stop Notice and Affidavit (O.50, r.11)
Form 27-Order 53 Forms (Practice Direction)
Form 28-Writ of Habeas Corpus Ad Subjiciendum (O.54, r.10)
Form 29-Attachment of Earnings Order (O.104, r.3)
Form 30-Warrant to Arrest Absconding Defendant (O.111, r.7)
Form 31-Originating Summons for Summary Possession of Land (O.113, r.2)
Appendix 1-Forms
Appendix 2-Fees (Registry)
Appendix 3-Fees (Sheriff)
Appendix 4- Part 1-Costs (indiscretion of taxing officer)
Part 2-Costs (fixed)
--------------
PRELIMINARY
ORDER 1
SHORT TITLE, INTERPRETATION, APPLICATION, FORMS
Short
title (O.1,
r.1)
1. These Rules may be cited as
the High Court Rules,
1988.
Interpretation
(O.1,
r.2)
2.-(1) In these Rules, unless
the context otherwise requires:-
"action" means a civil proceeding commenced by writ or in such other manner as may be prescribed by these Rules but does not include a criminal proceeding by the State;
"an action for personal injuries" means an action in which there is a claim for damages in respect of personal injuries to the plaintiff or any other person or in respect of a person's death, and "personal injuries" includes any disease and any impairment of a person's physical or mental condition;
"assisted person" means a party proceeding in forma pauperis or with legal aid;
"cause" includes any action, suit or other original proceeding between a plaintiff and defendant;
"the Court" means the High Court or any judge thereof, whether sitting in court or in chambers, and, where appropriate, the Registrar; provided that this definition shall not be taken to affect any provision of these Rules and, in particular, the provisions of Order 32, Rule 9, by virtue of which the authority and jurisdiction of the Registrar are defined and regulated;
"defendant" includes any person served with any writ of summons or process, or served with notice of, or entitled to attend, any proceedings;
"judgment" includes decree;
"matter" includes every proceeding in court not in a cause;
"notice of intention to defend" means an acknowledgement of service containing a statement to the effect that the person by whom or on whose behalf it is signed, intends to contest the proceedings to which the acknowledgement relates;
"originating summons" means every summons other than a summons in a pending cause or matter;
"party" includes every person served with notice of or attending any proceeding, although not named on the record;
"petitioner" includes every person making any application to the Court, either by petition, motion or summons, otherwise than against any defendant;
"plaintiff" includes every person seeking any relief (otherwise than by way of counter-claim as a defendant) against any other person by any form of proceeding whether the proceeding is by action, suit, petition, motion, summons or otherwise;
"pleading" includes any petition or summons, and also includes the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any counter-claim of a defendant; but does not include a petition, summons or preliminary act;
"Registrar" means the Chief Registrar of the High Court and includes any Deputy Registrar when lawfully discharging any of the functions of the Chief Registrar under these Rules;
"Registry" means the Registry of the High Court in Suva, and includes any district registry of the Supreme Court, where such district registry is established outside Suva;
"Solicitor" means Barrister and Solicitor;
"suit" includes action;
"writ" means a writ of summons.
(2)
In these Rules, unless the context otherwise requires, any reference to
acknowledging service of a document or giving notice of
intention to defend any
proceedings is a reference to lodging in the appropriate court office an
acknowledgment of service of that
document or, as the case may be, a notice of
intention to defend those
proceedings.
Construction
of references to orders, rules, etc. (O.1,
r.3)
3.-(1) Unless the context
otherwise requires, any reference in these Rules to a specified Order, rule or
Appendix is a reference to
that Order or rule of, or that Appendix to, these
Rules and any reference to a specified rule, paragraph or sub-paragraph is a
reference
to that rule of the Order, that paragraph of the rule, or that
sub-paragraph of the paragraph, in which the reference
occurs.
(2) Any reference in these
Rules to anything done under a rule of these Rules includes a reference to the
same thing done before the
commencement of that rule under any corresponding
rule of court ceasing to have effect on the commencement of that
rule.
(3) Except where the context
otherwise requires, any reference in these Rules to any enactment shall be
construed as a reference to
that enactment as amended, extended or applied by or
under any other
enactment.
Construction
of references to action, etc. for possession of land
(O.1,
r.4)
4. Except where the context
otherwise requires, references in these Rules to an action or claim for the
possession of land shall be
construed as including references to proceedings
against the State for an order declaring that the plaintiff is entitled as
against
the State to the land or to the possession
thereof.
Rules
not to exclude conduct of business by post
(O.1,
r.5)
5. Nothing in these Rules
shall prejudice any power to regulate the practice of the Court by giving
directions enabling any business
or class of business to be conducted by
post.
Forms
(O.1,
r.6)
6. The forms in Appendix A
shall be used where applicable with such variations as the circumstances of the
particular case may
require:
Provided
that-
(i) the Court may permit departures from strict compliance with such forms;
(ii) Admiralty forms used for the time being in Her Majesty’s High Court of Justice in England shall have effect in Fiji subject to any law in force in Fiji with respect to Admiralty proceedings.
Practice
where no express provision in the Rules
(O.1,
r.7)
7. Where no express provision
is made by these Rules with respect to the practice or procedure in any
circumstances arising in any
cause or matter, then the jurisdiction of the High
Court shall be exercised in conformity with the practice and procedure being
adopted
in the like circumstances in Her Majesty’s High Court of Justice
in
England.
Proceedings
to which these Rules do not apply (O.1,
r.8)
8.-(1) Where, for the time
being, by or under any law in force in Fiji, specific provision is made for
regulating the practice and
procedure in, or in relation to, any particular form
of proceedings in the High Court, these Rules shall not apply thereto except
in
so far as any such provision applies, incorporates, or imports the application
of these Rules, whether by express reference thereto
or by reference to the
rules of Court of, or the practice or procedure in, the High
Court.
(2) These Rules shall not
apply to any criminal proceedings in the High
Court.
Fees,
costs, etc. (O.1,
r.9)
9.-(1) The fees set out in
Appendix 2 shall be paid to and received in the Registry in respect of the
matters set out therein. Fees
payable and receivable in respect of any matters
not specifically set out therein shall be as directed by the Chief
Justice:
Provided that no fees
shall be payable by a public officer in connection with any proceeding by or
against him in his official capacity
but any fee which would have been payable
but for this proviso shall be recoverable from any other party ordered to pay
the costs
of such public officer in any such
proceeding.
(2) The fees set out in
Appendix 3 shall be paid to and received by the Sheriff or his deputies
concerned in the execution of any
process directed to the Sheriff, in the
several proceedings mentioned therein.
(3) (a) Subject to any special order made in any proceedings by the trial judge there shall be allowed to barristers and solicitors in the High Court costs amounting to not less than those prescribed under the Lower Scale and not exceeding those prescribed under the Higher Scale in Part I of Appendix 4 in relation to the matters set out therein, in the discretion of the taxing officer.
(b) In exercising his discretion under sub-paragraph (a), the taxing officer shall have regard to all relevant circumstances and in particular to-
(i) the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved;
(ii) the skill, specialized knowledge and responsibility required of, and the time and labour expended by the solicitor;
(iii) the number and importance of the documents (however brief) prepared or perused;
(iv) the place and circumstances in which the business involved is transacted and whether the solicitor concerned was in the circumstances obliged to act through his agent in Suva, Lautoka or Labasa, as the case may be;
(v) the importance of the cause or matter to the client;
(vi) where money or property is involved, its amount or value;
(vii) any other fees and allowances payable to the solicitor in respect of other items in the same cause or matter, but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question.
(c) Fixed costs shall be allowed as provided in Part 2 of Appendix 4.
Pleading
of criminal conviction (O.1,
r.10)
10.-(1) If in any action
which is to be tried with pleadings any party intends, in reliance
on
Section 9 of the Evidence Act (convictions
as evidence in civil proceedings) to adduce evidence that a person was convicted
of
an offence by or before a court in Fiji,
he must include in his pleading a statement of his intention with particulars
of-
(a) the conviction and the date thereof,
(b) the court which made the conviction, and
(c) the issue in the proceedings to which the conviction is relevant.
(2)
Where a party’s pleading includes such
a
statement as is mentioned in paragraph
(1), then if the opposite party-
(a) denies the conviction, or
(b) alleges that the conviction was erroneous, or
(c) denies that the conviction is relevant to any issue in the proceedings,
he
must make the denial in his
pleading.
Non-contentious
probate rules (O.1,
r.11)
11. The Rules for the time
being in force in Her Majesty’s High Court of Justice in England, and the
practice and procedure
of that Court with respect of non-contentious probate
business shall apply so far as they are applicable, with such modifications
as
maybe necessary, to grants of probate and administration issued in common form
from the Registry of the High
Court.
Provision
respecting acts, etc., required of consuls
(O.1,
r.12)
12. Where, under these Rules,
any act or thing is required to be done in a country outside Fiji by a Fiji
Consul, and there is no
Fiji Consular Representation in that country, it shall
be sufficient, for the purposes of these Rules, if such act or thing is done
there by the consul of some other country in pursuance of an arrangement in
force with respect to such acts or things between Fiji
and the authority of such
second mentioned
country.
Repeal
and savings (O.1,
r.13)
13.-(1) The High Court Rules
in force immediately before the making of these Rules are hereby
repealed.
(2) Nothing in this rule
shall affect any judgment, order, direction, writ, summons, petition, pleading
or any other act or thing
done, made, issued or given before the commencement of
these Rules in accordance with Rules hereby repealed and every such judgment,
order, direction, writ, summons, petition or other act or thing shall have
effect as if done, made, issued or given under these
Rules.
Commencement
(O.1,
r.14)
14. These Rules shall come
into operation on such day as the Chief Justice shall by notice in the Gazette
appoint.
O.2
ORDER 2
EFFECT OF NON-COMPLIANCE
Non-Compliance
with rules (O.2,
r.1)
1.-(1) Where, in beginning or
purporting to begin any proceedings or at any stage in the course of or in
connection with any proceedings,
there has, by reason of anything done or left
undone, been a failure to comply with the requirements of these Rules, whether
in respect
of time, place, manner, form or content or in any other respect, the
failure shall be treated as an irregularity and shall not nullify
the
proceedings, any step taken in the proceedings, or any document, judgment or
order therein.
(2) Subject to
paragraph (3), the Court may, on the ground that there has been such a failure
as is mentioned in paragraph (1), and
on such terms as to costs or otherwise as
it thinks just, set aside either wholly or in part the proceedings in which the
failure
occurred, any step taken in those proceedings or any document, judgment
or order therein or exercise its powers under these Rules
to allow such
amendments (if any) to be made and to make such order (if any) dealing with the
proceedings generally as it thinks
fit.
(3) The Court shall not wholly
set aside any proceedings or the writ or other originating process by which they
were begun on the
ground that the proceedings were required by any of these
Rules to be begun by an originating process other than the one
employed.
Application
to set aside for irregularity (O.2,
r.2)
2.-(1) An application to set
aside for irregularity any proceedings, any step taken in any proceedings or any
document, judgment or
order therein shall not be allowed unless it is made
within a reasonable time and before the party applying has taken any fresh step
after becoming aware of the
irregularity.
(2) An application
under this rule may be made by summons or motion and the grounds of objection
must be stated in the summons or
notice of motion.
O.3
ORDER 3
TIME
"Month"
means calendar month (O.3,
r.1)
1. Without prejudice to any
law affecting the interpretation of subsidiary legislation, the word "month",
where it occurs in any judgment,
order, direction or other document forming part
of any proceedings in the High Court, means a calendar month unless the context
otherwise
requires.
Reckoning
periods of time (O.3,
r.2)
2.-(1) Any period of time
fixed by these Rules or by any judgment, order or direction for doing any act
shall be reckoned in accordance
with the following provisions of this
rule.
(2) Where the act is required
to be done within a specified period after or from a specified date, the period
begins immediately after
that
date.
(3) Where the act is required
to be done within or not less than a specified period before a specified date,
the period ends immediately
before that
date.
(4) Where the act is required
to be done a specified number of clear days before or after a specified date, at
least that number of
days must intervene between the day on which the act is
done and that date.
(5) Where,
apart from this paragraph, the period in question, being a period of 7 days or
less, would include a Saturday, Sunday or
public holiday that day shall be
excluded.
Time
expires on Saturday, Sunday, etc. (O.3,
r.3)
3. Where the time prescribed
by these rules, or, by any judgment, order or direction, for doing any act at an
office of the High Court
expires on a Saturday or Sunday or other day on which
that office is closed, and by reason thereof that act cannot be done on that
day, the act shall be in time if done on the next day on which that office is
open.
Extension,
etc., of time (O.3,
r.4)
4.-(1) The Court may, on such
terms as it thinks just, by order extend or abridge the period within which a
person is required or
authorised by these rules, or by any judgment, order or
direction, to do any act in any
proceedings.
(2) The Court may
extend any such period as is referred to in paragraph (1) although the
application for extension is not made until
after the expiration of that
period.
(3) The period within which
a person is required by these Rules, or by any order or direction to serve, file
or amend any pleading
or other document may be extended by consent (given in
writing) without an order of the Court being made for that
purpose.
Notice
of intention to proceed after year's delay
(O.3,
r.5)
5. Where a year or more has
elapsed since the last proceeding in a cause or matter, the party who desires to
proceed must give to
every other party not less than one month's notice of his
intention to proceed.
A summons on
which no order was made is not a proceeding for the purpose of this
rule.
O.4
COMMENCEMENT AND PROGRESS OF PROCEEDINGS
ORDER 4
CONSOLIDATION OF PROCEEDINGS
1. Where two or more causes
or matters are pending, then, if it appears to the Court-
(a) that some common question of law or fact arises in both or all of them, or
(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or
(c) that for some other reason it is desirable to make an order under this rule,
the
Court may order those causes or matters to be consolidated on such terms as it
thinks just or may order them to be tried at the
same time or one immediately
after another or may order any of them to be stayed until after the
determination of any other of them.
O.5
ORDER 5
MODE OF BEGINNING CIVIL PROCEEDINGS
Mode of
beginning civil proceedings (O.5,
r.1)
1. Subject to the provisions
of any Act and of these Rules, civil proceedings in the High Court maybe begun
by writ, originating summons,
originating motion or
petition.
Proceedings
which must be begun by writ (O.5,
r.2)
2. Subject to any provision of
an Act, or of these Rules, by virtue of which any proceedings are expressly
required to be begun otherwise
than by writ, the following proceedings must,
notwithstanding anything in rule 4, be begun by writ; that is to say,
proceedings-
(a) in which a claim is made by the plaintiff for any relief or remedy for any tort, other than trespass to land;
(b) in which a claim made by the plaintiff is based on an allegation of fraud;
(c) in which a claim is made by the plaintiff for damages for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under an Act or independently of any contract or any such provision), where the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person or in respect of damage to any property;
(d) in which a claim is made by the plaintiff in respect of the infringement of a patent.
Proceedings
which must be begun by originating summons
(O.5, r.3)
3. Proceedings by which
an application is to be made to the High Court or a judge thereof under any Act
must be begun by originating
summons except where by these Rules or by or under
any Act the application in question is expressly required or authorised to be
made by some other means.
This rule
does not apply to an application made in pending
proceedings.
Proceedings
which may be begun by writ or originating
summons (O.5,
r.4)
(1) Except in the case of
proceedings which by these Rules or by or under any Act are required to be begun
by writ or originating
summons or are required or authorised to be begun by
petition, proceedings may be begun either by writ or by originating summons
as
the plaintiff considers
appropriate.
(2)
Proceedings-
(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law, or
(b) in which there is unlikely to be any substantial dispute of fact,
are
appropriate to be begun by originating summons unless the plaintiff intends in
those proceedings to apply for judgment under Order
14 or Order 86 or for any
other reason considers the proceedings more appropriate to be begun by
writ.
Proceedings
to be begun by motion or petition (O.5,
r.5)
5. Proceedings maybe begun by
originating motion or petition if, but only if, by these rules or by or under
any Act the proceedings
in question are required or authorised to be so
begun.
Right to
sue in person (O.5,
r.6)
6.-(1) Subject to paragraph
(2) and to Order 80, rule 2, any person (whether or not he sues as a trustee or
personal representative
or in any other representative capacity) may begin and
carry on proceedings in the High Court by a barrister and solicitor or in
person.
(2) Except as expressly
provided by or under any enactment, a body corporate may not begin or carry on
any such proceedings otherwise
than by a barrister and solicitor.
O.6
ORDER 6
WRITS OF SUMMONS; GENERAL PROVISIONS
Form of
writ (O.6,
r.1)
1. Every writ must be in Form
1 in Appendix
A.
Indorsement
of claim (O.6,
r.2)
2.-(1) Before a writ is issued
it must be indorsed-
(a) with a statement of claim or, if the statement of claim is not indorsed on the writ, with a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby;
(b) where the claim made by the plaintiff is for a debt or liquidated demand only, with a statement of the amount claimed in respect of the debt or demand and for costs and also with a statement that further proceedings will be stayed if, within the time limited for appearing, the defendant pays the amount so claimed to the plaintiff, his solicitor or agent;
(c) where the action is brought to enforce a right to recover possession of goods, with a statement showing the value of the goods.
Indorsement
as to capacity (O.6,
r.3)
3. Before a writ is issued it
must be indorsed-
(a) where the plaintiff sues in a representative capacity, with a statement of the capacity in which he sues;
(b) where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued.
Indorsement
as to solicitor and address (O.6,
r.4)
4.-(1) Before a writ is
issued, it must be indorsed
(a) where the plaintiff sues by a solicitor, with the plaintiffs address and the solicitor's name or firm and a business address of his within the jurisdiction and also (if the solicitor is the agent of another) the name or firm and business address of his principal;
(b) where the plaintiff sues in person, with the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him maybe delivered or sent.
(2)
The address for service of a plaintiff shall be -
(a) where he sues by a solicitor, the business address of the solicitor indorsed on the writ or where there are two such addresses so indorsed, the business address of the solicitor who is acting as agent for the other;
(b) where he sues in person, the address within the jurisdiction indorsed on the writ.
(3)
Where a solicitor’s name is indorsed on a writ, he must, if any defendant
who has been served with or who has acknowledged
service of the writ requests
him in writing so to do, declare in writing whether the writ was issued by him
or with his authority
or
privity.
(4) If a solicitor whose
name is indorsed on a writ declares in writing that the writ was not issued by
him or with his authority
or privity, the Court may on the application of any
defendant who has been served with or who has entered an appearance to the writ,
stay all proceedings in the action begun by the
writ.
Concurrent
writ (O.6,
r.5)
5.-(1) One or more concurrent
writs may, at the request of the plaintiff, be issued at the time when the
original writ is issued or
at anytime thereafter before the original writ ceases
to be valid.
(2) Without prejudice
to the generality of paragraph (1), a writ for service within the jurisdiction
may be issued as a concurrent
writ with one which is to be served out of the
jurisdiction, and a writ which is to be served out of the jurisdiction may be
issued
as a concurrent writ with one for service within the
jurisdiction.
(3) A concurrent writ
is a true copy of the original writ with such differences only (if any) as are
necessary having regard to the
purpose for which the writ is
issued.
Issue of
writ (O.6,
r.6)
6. No writ which is to be
served out of the jurisdiction shall be issued without the leave of the
Court:
Provided that if every claim
made by a writ is one which by virtue of an enactment the High Court has power
to hear and determine,
not withstanding that the person against whom the claim
is made is not within the jurisdiction of the Court or that the wrongful
act,
neglect or default giving rise to the claim did not take place within its
jurisdiction, the foregoing provision shall not apply
to the
writ.
(2) Issue of a writ takes
place upon its being sealed by an officer of the
Registry.
(3) The officer by whom a
concurrent writ is sealed must mark it as a concurrent writ with an official
stamp.
(4) No writ shall be sealed
unless at the time of tender thereof for sealing the person tendering it leaves
at the Registry a copy
thereof signed, where the plaintiff sues in person, by
him or, where he does not so sue, by or on behalf of his solicitor and produces
to an officer of the Registry a form of acknowledgment of service in Form No. 2
in Appendix A for service with the writ on each
defendant.
Duration
and renewal of writ (O.6,
r.7)
7.-(1) For the purpose of
service, a writ (other than a concurrent writ) is valid in the first instance
for twelve months beginning
with the date of its issue and a concurrent writ is
valid in the first instance for the period of validity of the original writ
which
is unexpired at the date of issue of the concurrent
writ.
(2) Where a writ has not been
served on a defendant, the Court may by order extend the validity of the writ
from time to time for
such period, not exceeding twelve months at any one time,
beginning with the day next following that on which it would otherwise
expire,
as may be specified in the order, if an application for extension is made to the
Court before that day or such later day
(if any) as the Court may
allow.
(3) Before a writ, the
validity of which has been extended under this rule, is served, it must be
marked with an official stamp showing
the period for which the validity of the
writ has been so extended.
(4)
Where the validity of a writ is extended by order made under this rule, the
order shall operate in relation to any other writ
(whether original or
concurrent) issued in the same action which has not been served so as to extend
the validity of that other writ
until the expiration of the period specified in
the order.
O.7
ORDER 7
ORIGINATING SUMMONSES; GENERAL PROVISIONS
Application
(O.7, r.1)
1. The provisions of
this Order apply to all originating summonses subject, in the case of
originating summonses of any particular
class, to any special provisions
relating to originating summonses of that class made by these Rules or by or
under any
Act.
Form of
Summons, etc. (O.7,
r.2)
2.-(1) Every originating
summons (other than an
ex parte
summons) shall be in Form No. 3 or, if so
authorised or required, in Form No. 4 in Appendix A, and every
ex
parte
originating summons shall be in Form No. 5
in Appendix A.
(2) The party taking
out an originating summons (other than an
ex
parte
summons) shall be described as a
plaintiff, and the other parties shall be described as
defendants.
Contents
of Summons (O.7,
r.3)
3.-(1) Every originating
summons must include a statement of the questions on which the plaintiff seeks
the determination or direction
of the High Court or, as the case may be, a
concise statement of the relief or remedy claimed in the proceedings begun by
the originating
summons with sufficient particulars to identify the cause or
causes of action in respect of which the plaintiff claims that relief
or
remedy.
(2) Order 6, rules 3, 4 and
7 shall apply in relation to an originating summons as they apply in relation to
a writ.
Ex parte
originating summonses (O.7,
r.4)
4.- (1) Rules 2(1) and 3(1)
shall, so far as applicable, apply to
ex
parte
originating summonses; but, save as
aforesaid, the foregoing rules of this Order shall not apply
to
ex
parte
originating
summonses.
(2) Order 6, rule 6(2)
and (4) shall, with the necessary modifications, apply in relation to an
ex
parte
originating summons as they apply in
relation to a writ.
O.8
ORDER 8
ORIGINATING AND OTHER MOTIONS: GENERAL PROVISIONS
Application
(O.8,
r.1)
1. The provisions of this
Order apply to all motions subject, in the case of originating motions of any
particular class, to any special
provisions relating to motions of that class
made by these Rules or by or under any
Act.
Notice of
motion (O.8,
r.2)
2.-(1) Except where an
application by motion may properly be made
ex
parte, no motion shall be made without
previous notice to the parties affected thereby, but the Court, if satisfied
that the delay caused
by proceedings in the ordinary way would or might entail
irreparable or serious mischief may make an order
ex parte
on such terms as to costs or otherwise,
and subject to such undertaking, if any, as it thinks just; and any party
affected by such
order may apply to the Court to set it
aside.
(2) Unless the Court gives
leave to the contrary, there must be at least 2 clear days between the service
of notice of a motion and
the day named in the notice for hearing the
motion.
Form and
issue of notice of motion (O.8,
r.3)
3.-(1) The notice of an
originating motion must be in Form No. 6 in Appendix A and the notice of any
other motion in Form No. 7 in
that
Appendix.
Where leave has been
given under rule 2(2) to serve short notice of motion, that fact must be stated
in the notice.
(2) The notice of a
motion must include a concise statement of the nature of the claim made or the
relief or remedy required.
(3)
Order 6, rule 4, shall, with the necessary modifications, apply in relation to
notice of an originating motion as it applies in
relation to a
writ.
(4) Issue of the notice of an
originating motion takes place upon its being sealed by an officer of the
Registry.
Service
of notice of motion with writ, etc. (O.8,
r.4)
4. Notice of a motion to be
made in an action may be served by the plaintiff on the defendant with the writ
of summons or originating
summons or at any time after service of such writ or
summons, whether or not the defendant has entered an appearance in the
action.
Adjournment
of hearing (O.8,
r.5)
5. The hearing of any motion
may be adjourned from time to time on such terms, if any as the Court thinks
fit.
O.9
ORDER 9
PETITIONS; GENERAL PROVISIONS
Application
(O.9, r.1)
1. Rules 2 to 4 apply to
petitions by which civil proceedings in the High Court are begun, subject, in
the case of petitions of any
particular class, to any special provisions
relating to petitions of that class made by these Rules or by or under any
Act.
Contents of
petition (O.9,
r.2)
2.-(1) Every petition must
include a concise statement of the nature of the claim made or the relief or
remedy required in the proceedings
begun
thereby.
(2) Every petition must
include at the end thereof a statement of the names of the persons, if any,
required to be served therewith
or if no person is required to be served, a
statement to that effect.
(3) Order
6, Rule 4, shall, with the necessary modifications, apply in relation to a
petition as it applies in relation to a
writ.
Answer to
petition (O.9,
r.3)
3.-(1) A respondent who wishes
to defend the petition or to dispute any facts alleged in it, shall, within 21
days after the date
of the service thereof, file an answer to the
petition.
(2) An answer may be
filed at any time before directions have been given for the trial of the cause,
notwithstanding that the time
for filing the answer has
expired.
(3) Where, in the opinion
of the Court, it is expedient in the interests of justice to do so, the Court
may direct the respondent
to give notice of whether or not he intends to defend
and limit the time within which the notice is to be
given.
(4) If the respondent
-
(a) fails to give notice of his intention within the time limited under paragraph (3); or
(b) having given such notice fails to file an answer to the petition within 21 days after the day of the giving of the notice,
he
may be held to have admitted every material allegation of fact made in the
petition.
Fixing
time for hearing petition (O.9,
r.4)
4. A day and time for the
hearing of a petition which is required to be heard shall be fixed by the
Registrar.
Certain
applications not to be made by petition
(O.9, r.5)
5. No application in any
cause or matter may be made by petition.
O.10
ORDER 10
SERVICE OF ORIGINATING PROCESS: GENERAL PROVISIONS
General
provisions (O.10,
r.1)
1.-(1) A writ must be served
personally on each defendant by the plaintiff or his
agent.
(2) A writ for service on a
defendant within the jurisdiction may, instead of being served personally on
him, be served-
(a) by sending a copy of the writ by ordinary post to the defendant at his usual or last known address, or
(b) if there is a letter box for that address, by inserting through the letter box a. copy of the writ enclosed in a sealed envelope addressed to the defendant.
(3)
Where a writ is served in accordance with paragraph (2)-
(a) the date of service shall, unless the contrary is shown, be deemed to be the seventh day (ignoring Order 3, rule 2(5)) after the date on which the copy was sent to or, as the case may be, inserted through the letter box for the address in question;
(b) any affidavit proving due service of the writ must contain a statement to the effect that-
(i) in the opinion of the deponent (or, if the deponent is the plaintiff’s solicitor or an employee of that solicitor, in the opinion of the plaintiff) the copy of the writ, if sent to, or, as the case may be inserted through the letter box for, the address in question, will have come to the knowledge of the defendant within 7 days thereafter; and
(ii) in the case of service by post, the copy of the writ has not been returned to the plaintiff through the post undelivered to the addressee.
(4)
Where a defendant’s solicitor indorses on the writ a statement that he
accepts service of the writ on behalf of that defendant,
the writ shall be
deemed to have been duly served on that defendant and to have been so served on
the date on which the indorsement
was
made.
(5) Subject to Order 12, rule
7, where a writ is not duly served on a defendant but he acknowledges service of
it, the writ shall
be deemed, unless the contrary is shown, to have been duly
served on him and to have been so served on the date on which he acknowledges
service.
(6) Every copy of a writ
for service on a defendant shall be sealed with the seal of the High Court and
shall be accompanied by a
form of acknowledgment of service in Form No. 2 in
Appendix A, in which the title of the action and its numbers has been
entered.
(7) This rule shall have
effect subject to the provision of any Act and these Rules and in particular to
any enactment which provides
for the manner in which documents may be served on
bodies
corporate.
Service
of writ on agent of oversea principal
(O.10,
r.2)
2.-(1) Where the Court is
satisfied on an ex
parte application that-
(a) a contract has been entered into within the jurisdiction with or through an agent who is either an individual residing or carrying on business within the jurisdiction or a body corporate having a registered office or a place of business within the jurisdiction, and
(b) the principal for whom the agent was acting was at the time the contract was entered into and is at the time of the application neither such an individual nor such a body corporate, and
(c) at the time of the application either the agent’s authority has not been determined or he is still in business relations with his principal,
the
court may authorise service of a writ beginning an action relating to the
contract to be effected on the agent instead of the
principal.
(2) An order under this
Rule authorising service of a writ on a defendant’s agent must limit a
time within which the defendant
must acknowledge
service.
(3) Where an order is made
under this Rule authorising service of a writ on a defendant's agent, a copy of
the order and of the writ
must be sent by post to the defendant at his address
out of the
jurisdiction.
Service
of writ in pursuance of contract (O.10, r.
3)
(1) Where -
(a) a contract contains a term to, the effect that the High Court shall have jurisdiction to hear and determine any action in respect of a contract or, apart from any, such term, the High Court has jurisdiction to hear and determine any such action, and
(b) the contract provides that, in the event of any action in respect of the contract being begun, the process by which it is begun may be served on the defendant, or on such other person on his behalf as maybe specified in the contract, in such manner, or at such place (whether within or out of the jurisdiction), as may be so specified,
then,
if an action in respect of the contract is begun in the High Court and the writ
by which it is begun is served in accordance
with the contract, the writ shall,
subject to paragraph (2), be deemed to have been duly served on the
defendant.
(2) A writ which is
served out of the jurisdiction in accordance with a contract shall not be deemed
to have been duly served on the
defendant by virtue of paragraph (1) unless
leave to serve the writ, or notice thereof, out of the jurisdiction has been
granted
under Order 11, rule 1 or
2.
Service of
writ in certain actions for possession of
land (O.10,
r.4)
4. Where a writ is indorsed
with a claim for the possession of land, the Court may –
(a) if satisfied on an ex parte application that no person appears to be in possession of the land and that service cannot be otherwise effected on any defendant, authorise service on that defendant to be effected by affixing a copy of the writ to some conspicuous part of the land;
(b) if satisfied on such an application that no person appears to be in possession of the land and that service could not otherwise have been effected on any defendant, order that service already effected by affixing a copy of the writ to some conspicuous part of the land shall be treated as good service on that defendant.
Service
of originating summons, notice of motion or
petition (O.10,
r.5)
5.-(1) The foregoing rules of
this Order shall apply, with any necessary modifications, in relation to an
originating summons (other
than
ex
parte originating summons or an
originating summons under Order 113) as they apply in relation to a
writ.
(2) Rule 1 (1), (2), (3) and
(4) shall apply, with any necessary modifications, in relation to a notice of an
originating motion and
a petition as they apply in relation to a
writ.
O.11
ORDER 11
SERVICE OF PROCESS, ETC., OUT OF THE JURISDICTION
Principal
cases in which service of writ out of jurisdiction is
permissible (O.11,
r.1)
1.-(1) If a writ is not a writ
to which paragraph (2) of this Rule applies, service of a writ out of the
jurisdiction is permissible
with the leave of the Court if in the action begun
by the writ-
(a) relief is sought against a person domiciled within the jurisdiction;
(b) an injunction is sought ordering the defendant to do or refrain from doing anything within the jurisdiction (whether or not damages are also claimed in respect of a failure to do or the doing of that thing);
(c) the claim is brought against a person duly served within or out of the jurisdiction and a person out of the jurisdiction is a necessary or proper party thereto;
(d) the claim is brought to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages, or obtain other relief in respect of the breach of a contract, being (in either case) a contract which-
(i) was made within the jurisdiction, or
(ii) was made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction, or
(iii) is by its terms, or by implication, governed by the law of Fiji, or
(iv) contains a term to the effect that the High Court shall have jurisdiction to hear and determine any action in respect of the contract;
(e) the claim is brought in respect of a breach committed within the jurisdiction of a contract made within or out of the jurisdiction, and irrespective of the fact, if such be the case, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible the performance of so much of the contract as ought to have been performed within the jurisdiction;
(f) the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction;
(g) the whole subject-matter of the action is land situate within the jurisdiction (with or without rents or profits) or the perpetuation of testimony relating to land so situate;
(h) the claim is brought to construe, rectify, set aside or enforce an act, deed, will, contract, obligation or liability affecting land situate within the jurisdiction;
(i) the claim is made for a debt secured on immovable property or is made to assert, declare or determine proprietary or possessory rights, or rights of security, in or over movable property, or to obtain authority to dispose of movable property, situate within the jurisdiction;
(j) the claim is brought to execute the trusts of a written instrument being trusts that ought to be executed according to English law and of which the person to be served with the writ is a trustee or for any relief or remedy which might be obtained in any such action;
(k) the claim is made for the administration of the estate of a person who died domiciled within the jurisdiction or for any relief or remedy which might be obtained in any such action;
(l) the claim is brought in a probate action within the meaning of Order 76;
(m) the claim is brought to enforce any judgment or arbitral award.
(2)
Service of a writ out of the jurisdiction is permissible without the leave of
the Court provided that each claim made by the writ
is a claim which by virtue
of any enactment the High Court has power to hear and determine notwithstanding
that the person against
whom the claim is made is not within the jurisdiction or
that the wrongful act, neglect or default giving rise to the claim did not
take
place within its jurisdiction.
(3)
Where a writ is to be served out of the jurisdiction under paragraph (2), the
time to be inserted in the writ within which the
defendant served therewith must
acknowledge service shall be 42
days.
Application
for, and grant of, leave to serve writ out of
jurisdiction (O.11,
r.2)
2.-(1) An application for the
grant of leave under rule 1(1) must be supported by an affidavit
stating-
(a) the grounds on which the application is made,
(b) that in the deponent's belief the plaintiff has a good cause of action,
(c) in what place or country the defendant is, or probably may be found, and
(d) where the application is made under rule 1(1) (c), the grounds for the deponent’s belief that there is between the plaintiff and the person on whom a writ has been served a real issue which the plaintiff may reasonably ask the Court to try.
(2)
No such leave shall be granted unless it shall be made sufficiently to appear to
the Court that the case is a proper one for service
out of the jurisdiction
under this Order.
(3) An order
granting under rule 1 leave to serve a writ out of the jurisdiction must limit a
time within which the defendant to be
served must enter an
appearance.
Service
of writ abroad: general (O.11,
r.3)
3.-(1) Subject to the
following provisions of this Rule, Order 10 rule 1 (1), (4), (5) and (6) and
Order 65, rule 4, shall apply in
relation to the service of a writ,
notwithstanding that the writ is to be served out of the jurisdiction, save that
the accompanying
form of acknowledgment of service shall be modified in such
manner as may be appropriate.
(2)
Nothing in this rule or in any order or direction of the Court made by virtue of
it shall authorise or require the doing of anything
in a country in which
service is to be effected which is contrary to the law of that
country.
(3) A writ which is to be
served out of the jurisdiction-
(a) need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected; and
(b) need not be served by the plaintiff or his agent if it is served by a method provided for by Rule 4.
(4)
An official certificate stating that a writ as regards which Rule 4 has been
complied with has been served on a person personally,
or in accordance with the
law of the country in which service was effected, on a specified date, being a
certificate-
(a) by a Fiji consular authority in that country, or
(b) by the government or judicial authorities of that country, or
(c) by any other authority designated in respect of that country under the Hague Convention,
shall
be evidence of the facts so
stated.
(5) A document purporting
to be such a certificate as is mentioned in paragraph (4) shall, until the
contrary is proved, to be deemed
to be such a
certificate.
(6) In this rule and
rule 6 "the Hague Convention" means the Convention on the service abroad of
judicial and extra-judicial documents
in civil or commercial matters signed at
the Hague on November 15,
1965.
Service
of
writ abroad through
foreign governments, judicial authorities and Fiji
consuls (O.11,
r.4)
4.-(1) Where in accordance
with these Rules a writ is to be served on a defendant in any country with
respect to which there subsists
a Civil Procedure Convention (other than the
Hague Convention) providing for service in that country of process of the High
Court,
the writ may be served-
(a) through the judicial authorities of that country; or
(b) through a Fiji Consular authority in that country (subject to any provision of the convention as to the nationality of persons who may be so served).
(2)
Where in accordance with these Rules, a writ is to be served on a defendant in
any country which is a party to the Hague Convention,
the writ may be
served-
(a) through the authority designated under the Convention in respect of that country; or
(b) if the law of that country permits-
(i) through the judicial authorities of that country, or
(ii) through a Fiji consular authority in that country.
(3)
Where in accordance with these Rules a writ is to be served on a defendant in
any country with respect to which there does not
subsist a Civil Procedure
Convention providing for service in that country of process of the High Court,
the writ may be served-
(a) through the government of that country, where that government is willing to effect service; or
(b) through a Fiji consular authority in that country, except where service through such an authority is contrary to the law of that country.
(4)
A person who wishes to serve a writ by a method specified in paragraph (1), (2),
or (3) must lodge in the Registry a request for
service of the writ by that
method, together with a copy of the writ and an additional copy thereof for each
person to be served.
(5) Every copy
of a writ lodged under paragraph (4) must be accompanied by a translation of the
writ in the official language of the
country in which service is to be effected
or, if there is more than one official language of that country, in any one of
those languages
which is appropriate to the place in that country where service
is to be effected:
Provided that
this paragraph shall not apply in relation to a copy of a writ which is to be
served in a country the official language
of which is, or the official languages
of which include, English, or is to be served in any country by a Fiji consular
authority
on a Fiji subject, unless the service is to be effected under
paragraph (2) and the Civil Procedure Convention with respect to that
country
expressly requires the copy to be accompanied by a
translation.
(6) Every translation
lodged under paragraph (5) must be certified by the person making it to be a
correct translation; and the certificate
must contain a statement of that
person's full name, of his address and of his qualifications for making the
translation.
(7) Documents duly
lodged under paragraph (4) shall be sent by the Registrar to the Minister with a
request that he arrange the writ
to be served by the method indicated in the
request lodged under paragraph (4) or, where alternative methods are so
indicated, by
such one of those methods as is most
convenient.
Undertaking
to pay expenses of service (O.11,
r.5)
5. Every request lodged under
rule 4(4) must contain an undertaking by the person making the request to be
responsible for all expenses
incurred by the Minister in respect of the service
requested and, on receiving due notification of the amount of those expenses,
to
pay that amount to the Minister and to produce a receipt for the payment to the
Registrar.
Service
of originating summons, petition, notice of motion,
etc. (O.11,
r.6)
6.-(1) Subject to Order 73,
rule 4, rule 1 of this Order shall apply to the service out of the jurisdiction
of an originating summons,
notice of motion or petition as it applies to service
of a writ.
(2) Subject to Order 73,
rule 4, service out of the jurisdiction of any summons, notice or order issued,
given or made in any proceedings
is permissible with the leave of the Court, but
leave shall not be required for such service in any proceedings in which the
writ,
originating summons, motion or petition may by these Rules or under any
Act be served out of the jurisdiction without
leave.
(3) Rule 2 shall, so far as
applicable apply in relation to an application for the grant of leave under this
rule as it applies in
relation to an application for the grant of leave under
rule 1.
(4) An order granting under
this rule leave to serve out of the jurisdiction an originating summons must
limit a time within which
the defendant to be served with the summons must
acknowledge service.
(5) Rules 3, 4
and 5 shall apply in relation to any document for the service of which out of
the jurisdiction leave has been granted
under this rule as they apply in
relation to a writ.
O.12
ORDER 12
ACKNOWLEDGMENT OF SERVICE TO WRIT OR ORIGINATING SUMMONS
Mode of
acknowledging service (O.12,
r.1)
1.-(1) Subject to paragraph
(2) and to Order 80, rule 2, a defendant to an action begun by writ may (whether
or not he issued as a
trustee or personal representative or in any other
representative capacity) acknowledge service of the writ and defend the action
by a solicitor or in person.
(2)
The defendant to such an action who is a body corporate may acknowledge service
of the writ and give notice of intention to defend
the action either by a
solicitor or by a person duly authorised to act on the defendant's behalf but,
except as aforesaid or as expressly
provided by any enactment, such a defendant
may not take steps in the action otherwise than by a
solicitor.
(3) Service of a writ
maybe acknowledged by properly completing an acknowledgment of service, as
defined by rule 3, and handling it
in at, or sending it by post to the Registry
out of which the writ was
issued.
(4) If two or more
defendants to an action acknowledge service by the same solicitor and at the
same time, only one acknowledgment
of service need be completed and delivered
for those defendants.
(5) The date
on which service is acknowledged is the date on which the acknowledgment of
service is received at the appropriate
office.
Acknowledgment
of service (O.12,
r.2)
2.-(1) An acknowledgment of
service must be in Form No. 2 in Appendix A, and, except as provided in rule
1(2), must be signed by the
solicitor acting for the defendant specified in the
acknowledgment or, if the defendant is acting in person, by that
defendant.
(2) An acknowledgment of
service must specify-
(a) in the case of a defendant acknowledging service in person, the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent; and
(b) in the case of a defendant acknowledging service by a solicitor, a business address of his solicitor's within the jurisdiction;
and
where the defendant acknowledges service in person, the address within the
jurisdiction specified under sub-paragraph
(a)
shall be his address for service, but otherwise his solicitor's business address
shall be his address for
service.
In relation to a body
corporate the references in sub-paragraph
(a)
to the defendant's place of residence shall be construed as references to the
defendant's registered or principal
office.
(3) Where the defendant
acknowledges service by a solicitor who is acting as agent for another solicitor
having a place of business
within the jurisdiction, the acknowledgment of
service must state that the first named solicitor so acts and must also state
the
name and address of that other
solicitor.
(4) If an acknowledgment
of service does not specify the defendant's address for service or the Court is
satisfied that any address
specified in the acknowledgment of service is not
genuine, the Court may on application by the plaintiff set aside the
acknowledgment
or order the defendant to give an address or, as the case may be,
a genuine address for service and may in any case direct that the
acknowledgment
shall nevertheless have effect for the purposes of Order 10, rule 1(5), and
Order 65, rule
9.
Procedure on
receipt of acknowledgment of service
(O.12, r.3)
3. On receiving an
acknowledgment of service an officer of the Registry must-
(a) affix to the acknowledgment an official stamp showing the date on which he received it;
(b) enter the acknowledgment in the cause book with a note showing, if it be the case, that the defendant has indicated in the acknowledgment an intention to contest the proceedings or to apply for a stay of execution in respect of any judgment obtained against him in the proceedings;
(c) make a copy of the acknowledgment, having affixed to it an official stamp showing the date on which he received the acknowledgment, and send it by post to the plaintiff or, as the case may be, his solicitor at the plaintiffs address for service.
Time
limited for acknowledging service (O.12,
r.4)
4. References in these Rules
to the time limited for acknowledging service are references-
(a) in the case of a writ served within the jurisdiction, to fourteen days after service of the writ (including the day of service) or, where that time has been extended by or by virtue of these Rules, to that time as so extended; and
(b) in the case of a writ served out of the jurisdiction, to the time limited under Order 10, Rule 2(2), Order 11, Rule 1(3) or, where that time has been extended as aforesaid, to that time as so extended.
Late
acknowledgment of service (O.12,
r.5)
5.-(1) Except with the leave
of the Court, a defendant may not give notice of intention to defend in an
action after judgment has
been obtained
therein.
(2) Except as provided by
paragraph (1), nothing in these Rules or any writ or order thereunder shall be
construed as precluding a
defendant from acknowledging service in an action
after the time limited for so doing, but if a defendant acknowledges service
after
that time, he shall not, unless the Court otherwise orders, be entitled to
serve a defence or do any other act later than if he had
acknowledged service
within that
time.
Acknowledgment
not to constitute waiver (O.12,
r.6)
6. The acknowledgment by a
defendant of service of a writ shall not be treated as a waiver by him of any
irregularity in the writ
or service thereof or in any order giving leave to
serve the writ out of the jurisdiction or extending the validity of the writ for
the purpose of
service.
Dispute
as to jurisdiction (O.12,
r.7)
7.-(1) A defendant who wishes
to dispute the jurisdiction of the Court in the proceedings by reason of any
such irregularity as is
mentioned in Rule 6 or on any other ground shall give
notice of intention to defend the proceedings and shall, within the time limited
for service of a defence apply to the Court for-
(a) an order setting aside the writ or service of the writ on him, or
(b) an order declaring that the writ has not been duly served on him, or
(c) the discharge of any order giving leave to serve the writ on him out of the jurisdiction, or
(d) the discharge of any order extending the validity of the writ for the purpose of service, or
(e) the protection or release of any property of the defendant seized or threatened with seizure in the proceedings, or
(f) the discharge of any order made to prevent any dealing with any property of the defendant, or
(g) a declaration that in the circumstances of the case the Court has no jurisdiction over the defendant in respect of the subject matter of the claim or the relief or remedy sought in the action, or
(h) such other relief as may be appropriate.
(2)
An application under paragraph (1) must be made by summons or motion, and the
notice of motion or summons must state the grounds
of the
application.
(3) An application
under paragraph (1) must be supported by an affidavit verifying the facts on
which the application is based and
a copy of the affidavit must be served with
the notice of motion or summons by which the application is
made.
(4) Upon hearing an
application under paragraph (1), the Court, if it does not dispose of the matter
in dispute, may give such directions
for its disposal as may be appropriate,
including directions for the trial thereof as a preliminary
issue.
(5) A defendant who makes an
application under paragraph (1) shall not be treated as having submitted to the
jurisdiction of the Court
by reason of his having given notice of intention to
defend the action; and if the Court makes no order on the application or
dismisses
it, the notice shall cease to have effect, but the defendant may,
subject to rule 6(1), lodge a further acknowledgment of service
and in that case
paragraph (6) shall apply as if the defendant had not made any such
application.
(6) Except where the
defendant makes an application in accordance with paragraph (1), the
acknowledgment by a defendant of service
of a writ shall, unless the
acknowledgment is withdrawn by leave of the Court under Order 21, rule 1, be
treated as a submission
by the defendant to the jurisdiction of the Court in the
proceedings.
Acknowledgment
of service of originating summons (O.12,
r.8)
8.-(1) Each defendant named in
and served with an originating summons (other than an
ex
parte
originating summons or an originating
summons under Order 113) must acknowledge service of the summons as if it were a
writ.
(2) The foregoing rules of
this Order shall apply in relation to an originating summons (other than an
ex parte
originating summons or an originating
summons under Order 113) as they apply to a writ except that after the word
"extended", wherever
it occurs in Rule 4(a), there shall be inserted the words
"or abridged" and for the reference in Rule 4(b) to Order 11, Rule 1(3),
there
shall be substituted a reference to Order 11, Rule
6(5).
Acknowledgment
of service to be treated as entry of
appearance (O.12,
r.9)
9. For the purpose of any
enactment referring expressly or impliedly to the entry of appearance as a
procedure provided by rules of
Court for responding to a writ or other process
issuing out of the High Court, or of any rule of law, the acknowledgment of
service
of the writ or other process in accordance with these Rules shall be
treated as the entry of an appearance to it, and related expressions
shall be
construed accordingly.
O.13
ORDER 13
FAILURE TO GIVE NOTICE OF INTENTION TO DEFEND
Claim
for liquidated demand (O.13,
r.1)
1.-(1)
Where a writ is indorsed with a claim against a defendant for a liquidated
demand only, then, if that defendant fails to give
notice of intention to
defend, the plaintiff may, after the prescribed time enter final judgment
against that defendant for a sum
not exceeding that claimed by the writ in
respect of the demand and for costs, and proceed with the action against the
other defendants,
if any.
(2) A
claim shall not be prevented from being treated for the purposes of this rule as
a claim for a liquidated demand by reason only
that part of the claim is for
interest accruing after the date of the writ at an unspecified rate, but any
such interest shall be
computed from the date of the writ to the date of
entering judgment at the rate of 5 per
cent.
Claim for
unliquidated damages (O.13,
r.2)
2. Where a writ is indorsed
with a claim against a defendant for unliquidated damages only, then, if that
defendant fails to give
notice of intention to defend, the plaintiff may, after
the prescribed time, enter interlocutory judgment against that defendant
for
damages to be assessed and costs, and proceed with the action against the other
defendants, if
any.
Claim for
detention of goods (O.13,
r.3)
3.-(1) Where a writ is
indorsed with a claim against a defendant relating to the detention of goods
only, then, if that defendant
failed to give notice of intention to defend the
plaintiff may, after the prescribed time and subject to Order 42, rule
2-
(a) at his option enter either-
(i) interlocutory judgment against that defendant for delivery of the goods or their value to be assessed and costs, or
(ii) interlocutory judgment for the value of the goods to be assessed and costs, or
(b) apply by summons for judgment against that defendant for delivery of the goods without giving him the alternative of paying their assessed value, and in any case proceed with the action against the other defendants, if any.
(2)
A summons under paragraph (1) (b) must be supported by affidavit and
notwithstanding Order 65, rule 9, the summons and a copy
of the affidavit must
be served on the defendant against whom judgment is
sought.
Claim
for possession of land (O.13,
r.4)
4.-(1) Where a writ is
indorsed with a claim against a defendant for possession of land only, then,
subject to paragraph (2), if that
defendant fails to give notice of intention to
defend the plaintiff may, after the prescribed time, and on producing a
certificate
by his solicitor, or (if he sues in person) an affidavit stating
that he is not claiming any relief in the action of the nature specified
in
Order 88, rule 1, enter judgment for possession of the land as against that
defendant and costs, and proceed with the action against
the other defendants,
if any.
(2) Where there is more
than one defendant, judgment entered under this rule shall not be enforced
against any defendant unless and
until judgment for possession of the land has
been entered against all the
defendants.
Mixed
claims (O.13,
r.5)
5. Where a writ issued against
any defendant is indorsed with two or more of the claims mentioned in the
foregoing rules, and no other
claim, then, if that defendant fails to give
notice of intention to defend, the plaintiff may, after the prescribed time,
enter against
that defendant such judgment in respect of any such claim as he
would be entitled to enter under those rules if that were the only
claim
indorsed on the writ, and proceed with the action against the other defendants,
if any.
Other
claims (O.13,
r.6)
6.-(1) Where a writ is
indorsed with a claim of a description not mentioned in rules 1 to 4 then, if
any defendant fails to give notice
of intention to defend, the plaintiff may,
after the prescribed time and, if that defendant has not acknowledged service,
upon filing
an affidavit proving service of the writ on him and, where the
statement of claim was not indorsed on or served with the writ, upon
serving a
statement of claim on him, proceed with the action as if that defendant had
given notice of intention to
defend.
(2) Where a writ issued
against a defendant is indorsed as aforesaid, but by reason of the
defendant’s satisfying the claim
or complying with the demands thereof or
any other like reason it has become unnecessary for the plaintiff to proceed
with the action,
then, if the defendant fails to give notice of intention to
defend, the plaintiff may, after the prescribed time, enter judgment
with the
leave of the Court against that defendant for
costs.
(3) An application for leave
to enter judgment under paragraph (2) shall be by summons which must, unless the
Court otherwise orders,
and notwithstanding anything in Order 65, rule 9, be
served on the defendant against whom it is sought to enter
judgment.
Prescribed
time (O.13,
r.7)
7. In the foregoing Rules of
this Order "the prescribed time" in relation to a writ issued against a
defendant means the time limited
for the defendant to acknowledge service of the
writ or, if within that time the defendant has returned to the Registry an
acknowledgment
of service containing a statement to the effect that he does not
intend to contest the proceedings, the date on which the acknowledgment
was
received at the
Registry.
Proof
of service of writ (O.13,
r.8)
8.-(1) Judgment shall not be
entered against a defendant under this Order unless-
(a) the defendant has acknowledged service on him of the writ; or
(b) an affidavit is filed by or on behalf of the plaintiff proving due service of the writ on the defendant; or
(c) the plaintiff produces the writ indorsed by the defendant’s solicitor with a statement that he accepts service of the writ on the defendant’s behalf.
(2)
Where, in an action begun by writ, an application is made to the Court for an
order affecting a party who has failed to acknowledge
service, the Court hearing
the application may require to be satisfied in such manner as it thinks fit that
the party is in default
of acknowledgment of
service.
(3) Where, after judgment
has been entered under this Order against a defendant purporting to have been
served by post under Order
10, rule 1(2) (a), the copy of the writ sent to the
defendant is returned to the plaintiff through the post, undelivered to the
addressee,
the plaintiff, shall, before taking any step or further step in the
action or the enforcement of the judgment either-
(a) make a request for the judgment to be set aside on the ground that the writ has not been duly served; or
(b) apply to the, Court for directions.
(4)
A request under paragraph (3)
(a)
shall be made by producing to an officer of the Registry and leaving with him
for filing, an affidavit stating the relevant facts,
and thereupon the judgment
shall be set aside and the entry of the judgment and of any proceedings for its
enforcement made in the
book kept in the Registry for that purpose shall be
marked accordingly.
(5) An
application under paragraph (3)
(b)
shall be made ex
parte by affidavit stating the facts on
which the application is founded and any order or direction sought, and on the
application the
Court may-
(a) set aside the judgment; or
(b) direct that, notwithstanding the return of the copy of the writ, it shall be treated as having been duly served; or
(c) make such other order and give such other direction as the circumstances may require.
Stay
of execution on default judgment (O.13,
r.9)
9. Where judgment for a debt
or liquidated demand is entered under this Order against a defendant who has
returned to the Registry
an acknowledgment of service containing a statement to
the effect that, although he does not intend to contest the proceedings, he
intends to apply for a stay of execution of the judgment by writ of
fieri
facias, execution of the judgment by such
a writ shall be stayed for a period of 14 days from the acknowledgment of
service and, if within
that time the defendant issues and serves on the
plaintiff a summons for such a stay supported by an affidavit in accordance with
Order 47, rule 1, the stay imposed by this rule shall continue until the summons
is heard or otherwise disposed of, unless the Court
after giving the parties an
opportunity of being heard otherwise
directs.
Setting
aside judgment (O.13,
r.10)
10. Without prejudice to rule
8(3) and (4), the Court may, on such terms as it thinks just, set aside or vary
any judgment entered
in pursuance of this Order.
O.14
ORDER 14
SUMMARY JUDGMENT
Application
by plaintiff for summary judgment (O.14,
r.1)
1.-(1) Where in an action to
which this rule applies a statement of claim has been served on a defendant and
that defendant has given
notice of intention to defend the action, the plaintiff
may, on the ground that that defendant has no defence to a claim included
in the
writ, or to a particular part of such a claim, or has no defence to such a claim
or part except as to the amount of any damages
claimed, apply to the Court for
judgment against that
defendant.
(2) Subject to paragraph
(3), this rule applies to every action begun by writ other than-
(a) an action which includes a claim by the plaintiff for libel, slander, malicious prosecution or false imprisonment,
(b) an action which includes a claim by the plaintiff based on an allegation of fraud.
(3)
This Order shall not apply to an action to which Order 86
applies.
Manner
in which application under Rule 1 must be
made (O.14,
r.2)
2.-(1) An application under
rule 1 must be made by summons supported by an affidavit verifying the facts on
which the claim, or the
part of a claim to which the application relates is
based and stating that in the deponent's belief there is no defence to that
claim
or part, as the case may be, or no defence except as to the amount of any
damages claimed.
(2) Unless the
Court otherwise directs, an affidavit for the purposes of this rule may contain
statements of information or belief
with the sources and grounds
thereof.
(3) The summons, a copy of
the affidavit in support and of any exhibits referred to therein must be served
on the defendant not less
than 10 clear days before the return
day.
Judgment
for Plaintiff (O.14,
r.3)
3.-(1) Unless on the hearing
of an application under rule 1, either the Court dismisses the application or
the defendant satisfies
the Court with respect to the claim, or the part of a
claim, to which the application relates that there is an issue or question
in
dispute which ought to be tried or that there ought for some other reason to be
a trial of that claim or part, the Court may give
such judgment for the
plaintiff against that defendant on that claim or part as may be just having
regard to the nature of the remedy
or relief
claimed.
(2) The Court may by
order, and subject to such conditions, if any, as may be just, stay execution of
any judgment given against a
defendant under this rule until after the trial of
any counterclaim made or raised by the defendant in the
action.
Leave to
defend (O.14,
r.4)
4.-(1) A defendant may show
cause against an application under rule 1 by affidavit or otherwise to the
satisfaction of the Court.
(2) Rule
2 (2) applies for the purposes of this rule as it applies for the purposes of
that rule.
(3) The Court may give a
defendant against whom such an application is made leave to defend the action
with respect to the claim,
or the part of a claim, to which the application
relates either unconditionally or on such terms as to giving security or time or
mode of trial or otherwise as it thinks
fit.
(4) On the hearing of such an
application the Court may order a defendant showing cause or, where that
defendant is a body corporate,
any director, manager, secretary or other similar
officer thereof, or any person purporting to act in any such
capacity-
(a) to produce any document;
(b) if it appears to the Court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath.
Application
for summary judgment on counterclaim
(O.14, r.5)
5.-(1) Where a
defendant to an action begun by writ has served a counterclaim on the plaintiff,
then, subject to paragraph (3), the
defendant may, on the ground that the
plaintiff has no defence to a claim made in the counterclaim, or to a particular
part of such
a claim, apply to the Court for judgment against the plaintiff on
that claim or part.
(2) Rules 2, 3
and 4 shall apply in relation to an application under this rule as they apply in
relation to an application under rule
1 but with the following modifications,
that is to say-
(a) references to the plaintiff and defendant shall be construed as references to the defendant and plaintiff respectively;
(b) the words in rule 3(2) "any counterclaim made or raised by the defendant in" shall be omitted; and
(c) the reference in rule 4(3) to the action shall be construed as a reference to the counterclaim to which the application under this rule relates.
(3)
This rule shall not apply to a counterclaim which includes any such claim as is
referred to in rule
1(2).
Directions
(O.14, r.6)
6.-(1) Where the Court
-
(a) orders that a defendant or a plaintiff have leave (whether conditional or unconditional) to defend an action or counterclaim, as the case may be, with respect to a claim or a part of a claim, or
(b) gives judgment for a plaintiff or a defendant on a claim or part of a claim but also orders that execution of the judgment be stayed pending the trial of a counterclaim or of the action, as the case may be, the Court shall give directions as to the further conduct of the action, and Order 25, rules 2 to 7, shall, with the omission of so much of Rule 7(1) as requires parties to serve a notice specifying the orders and directions which they require and with any other necessary modifications, apply as if the application under rule 1 of this Order or rule 5 thereof, as the case may be, on which the order was made were a summons for directions.
Costs
(O.14, r.7)
7.-(1) If the plaintiff
makes an application under rule 1 where the case is not within this Order or if
it appears to the Court that
the plaintiff knew that the defendant relied on a
contention which would entitle him to unconditional leave to defend, then,
without
prejudice to Order 62, and, in particular, to rule 2(1) thereof, the
Court may dismiss the application with costs and may, if the
plaintiff is not an
assisted person, require the costs to be paid by him
forthwith.
(2) The Court shall have
the same power to dismiss an application under rule 5 as it has under paragraph
(1) to dismiss an application
under rule 1, and that paragraph shall apply
accordingly with the necessary
modifications.
Right
to proceed with residue of action or
counterclaim (O.14,
r.8)
8.-(1) Where on an application
under rule 1 the plaintiff obtains judgment on a claim or a part of a claim
against any defendant,
he may proceed with the action as respects any other
claim or as respects the remainder of the claim or against any other
defendant.
(2) Where on an
application under rule 5 a defendant obtains judgment on a claim or part of a
claim made in a counterclaim against
the plaintiff, he may proceed with the
counterclaim as respects any other claim or as respects the remainder of the
claim or against
any other defendant to the
counterclaim.
Judgment
for delivery up of chattel (O.14,
r.9)
9. Where the claim to which an
application under rule 1 or rule 5 relates is for the delivery up of a specific
chattel and the Court
gives judgment under this Order for the applicant, it
shall have the same power to order the party against whom judgment is given
to
deliver up the chattel without giving him an option to retain it on paying the
assessed value thereof as if the judgment had been
given after
trial.
Relief
against forfeiture (O.14,
r.10)
10. A tenant shall have the
same right to apply for relief after judgment for possession of land on the
ground of forfeiture for non-payment
of rent has been given under this Order as
if the judgment had been given after
trial.
Setting
aside judgment (O.14,
r.11)
11. Any judgment given
against a party who does not appear at the hearing of an application under rule
1 or rule 5 maybe set aside
or varied by the Court on such terms as it thinks
just.
No summary
judgment against the State (O.1.4, r.
12)
12. Nothing in the foregoing
provisions of this Order shall apply or be construed in derogation of or in
anyway affect, the provisions
contained in Order 77 in so far as they apply in
relation to proceedings against the State.
O.15
ORDER 15
CAUSES OF ACTION, COUNTERCLAIMS AND PARTIES
Joinder
of causes of action (O.15,
r.1)
1.-(1) Subject to rule 5(1), a
plaintiff may in one action claim relief against the same defendant in respect
of more than one cause
of action-
(a) if the plaintiff claims, and the defendant is alleged to be liable, in the same capacity in respect of all the causes of action, or
(b) if the plaintiff claims or the defendant is alleged to be liable in the capacity of executor or administrator of an estate in respect of one or more of the causes of action and in his personal capacity but with reference to the same estate in respect of all the others, or
(c) with the leave of the Court.
(2)
An application for leave under this rule must be made
ex
parte by affidavit before the issue of the
writ or originating summons, as the case may be, and the affidavit must state
the grounds of
the
application.
Counterclaim
against plaintiff (O.15,
r.2)
2.-(1) Subject to rule 5(2), a
defendant in any action who alleges that he has any claim or is entitled to any
relief or remedy against
a plaintiff in the action in respect of any matter
(whenever and however arising) may, instead of bringing a separate action, make
a counterclaim in respect of that matter; and where he does so he must add the
counterclaim to his defence.
(2)
Rule 1 shall apply in relation to a counterclaim as if the counterclaim were a
separate action and as if the person making the
counterclaim were the plaintiff
and the person against whom it is made a
defendant.
(3) A counterclaim may
be proceeded with notwithstanding that judgment is given for the plaintiff in
the action or that the action
is stayed, discontinued or
dismissed.
(4) Where a defendant
establishes a counterclaim against the claim of the plaintiff and there is a
balance in favour of one of the
parties, the Court may give judgment for the
balance, so, however, that this provision shall not be taken as affecting the
Court's
discretion with respect to
costs.
Counterclaim
against additional parties (O.15,
r.3)
3.-(1) Where a defendant to an
action who makes a counterclaim against the plaintiff alleges that any other
person (whether or not
a party to the action) is liable to him along with the
plaintiff in respect of the subject matter of the counterclaim, or claims
against such other person any relief relating to or connected with the original
subject matter of the action, then, subject to rule
5(2), he may join that other
person as a party against whom the counterclaim is
made.
(2) Where a defendant joins a
person as a party against whom he makes a counterclaim, he must add that
person’s name to the
title of the action and serve on him a copy of the
counterclaim and in the case of a person who is not already a party to the
action,
a form of acknowledgment of service in Form No. 2 in Appendix A with
such modification as the circumstances may require; and a person
on whom a copy
of a counterclaim is served shall, if he is not already a party to the action,
become a party to it as from the time
of service with the same rights in respect
of his defence to the counterclaim and otherwise as if he had been duly sued in
the ordinary
way by the party making the
counterclaim.
(3) A defendant who
is required by paragraph (2) to serve a copy of the counterclaim made by him on
any person who before service
is already a party to the action must do so within
the period within which, by virtue of Order 18, rule 2, he must serve on the
plaintiff
the defence to which the counterclaim is
added.
(4) Where by virtue of
paragraph (2) a copy of a counterclaim is required to be served on a person who
is not already a party to the
action, the following provisions of these Rules,
namely, Order 10, 11, 12 and 13 shall apply in relation to the counterclaim and
the proceedings arising from it as if-
(a) the counterclaim were a writ and the proceedings arising from it an action; and
(b) the party making the counterclaim were a plaintiff and the party against whom it is made a defendant in that action.
(5)
A copy of a counterclaim required to be served on a person who is not already a
party to the action must be indorsed with a notice,
in Form No. 8 in Appendix A,
addressed to that
person.
Joinder
of parties (O.15,
r.4)
4.-(1) Subject to rule 5(1),
two or more persons may be joined together in one action as plaintiffs or as
defendants with the leave
of the Court or where-
(a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions, and
(b) all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.
(2)
Where the plaintiff in any action claims any relief to which any other person is
entitled jointly with him, all persons so entitled
must, subject to the
provisions of any Act and unless the Court gives leave to the contrary, be
parties to the action and any of
them who does not consent to being joined as a
plaintiff must, subject to any order made by the Court on an application for
leave
under this paragraph, be made a
defendant.
This paragraph shall not
apply to a probate
action.
Court
may order separate trials, etc. (O.15,
r.5)
5.-(1) If claims in respect of
two or more causes of action are included by a plaintiff in the same action or
by a defendant in a
counterclaim, or if two or more plaintiffs or defendants are
parties to the same action, and it appears to the Court that the joinder
of
causes of action or of parties, as the case may be, may embarrass or delay the
trial or is otherwise inconvenient, the Court may
order separate trials or make
such other order as may be
expedient.
(2) If it appears on the
application of any party against whom a counterclaim is made that the
subject-matter of the counterclaim
ought for any reason to be disposed of by a
separate action, the Court may order the counterclaim to be struck out or may
order it
to be tried separately or make such other order as may be
expedient.
Misjoinder
and non-joinder of parties (O.15,
r.6)
6.-(1) No cause or matter
shall be defeated by reason of the misjoinder or nonjoinder of any party; and
the Court may determine the
issues or questions in dispute so far as they affect
the rights and interests of the persons who are parties to the cause or
matter.
(2) Subject to the
provisions of this rule, at any stage of the proceedings in any cause or matter
the Court may on such terms as
it thinks just and either of its own motion or on
application-
(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;
(b) order any of the following persons to be added as a party, namely-
(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or
(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.
(3)
An application by any person for an order under paragraph (2) adding him as a
party must, except with the leave of the Court,
be supported by an affidavit
showing his interest in the matters in dispute or, as the case may be, the
question or issue to be determined
as between him and any party to the cause or
matter.
(4) No person shall be
added as a plaintiff without his consent signified in writing or in such other
manner as may be authorised.
(5) No
person shall be added or substituted as a party after the expiry of any relevant
period of limitation unless either-
(a) the relevant period was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new party should be added, or substituted, or
(b) the relevant period arises under the provisions of subparagraph (i) of the proviso to paragraph 4(1)(d) of the Limitation Act and the Court directs that those provisions should not apply to the action by or against the new party.
In
this paragraph "any relevant period of limitation" means a time limit under the
Limitation Act.
(Cap. 35)
(6) The addition or
substitution of a new party shall be treated as necessary for the purposes of
paragraph (5)
(a)
if, and only if, the Court is satisfied that-
(a) the new party is a necessary party to the action in that property is vested in him at law or in equity and the plaintiff's claim in respect of an equitable interest in that property is liable to be defeated unless the new party is joined, or
(b) the relevant cause of action is vested in the new party and the plaintiff jointly but not severally, or
(c) the new party is the Attorney-General and the proceedings should have been brought by relator proceedings in his name, or
(d) the new party is a company in which the plaintiff is a shareholder and on whose behalf the plaintiff is suing to enforce a right vested in the company, or
(e) the new party is sued jointly with the defendant and is not also liable severally with him and failure to join the new party might render the claim unenforceable.
Proceedings
against estates (O.15,
r.7)
7.-(1) Where any person
against whom an action would have lain has died but the cause of action
survives, the action may, if no grant
of probate or administration has been
made, be brought against the estate of the
deceased.
(2) Without prejudice to
the generality of paragraph (1), an action brought against "the personal
representatives of A.B. deceased"
shall be treated, for the purposes of that
paragraph, as having been brought against his
estate.
(3) An action purporting to
have been commenced against a person shall be treated, if he was dead at its
commencement, as having been
commenced against his estate in accordance with
paragraph (1), whether or not a grant of probate or administration was made
before
its commencement.
(4) In any
such action as is referred to in paragraph (1) or (3) –
(a) the plaintiff shall, during the period of validity for service of the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased’s estate for the purpose of the proceedings or, if a grant of probate or administration has been made for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person appointed or, as the case maybe, against the personal representative, as if he had been substituted for the estate;
(b) the court may, at any stage of the proceedings and on such terms as it thinks just and either of its own motion or on application, make any such order as is mentioned in sub-paragraph (a) and allow such amendments (if any) to be made and make such other order as the Court thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.
(5)
Before making an order under paragraph (4) the Court may require notice to be
given to any insurer of the deceased who has an
interest in the proceedings and
to such (if any) of the persons having an interest in the estate as it thinks
fit.
(6) Where an order is made
under paragraph (4) appointing the Public Trustee to represent the
deceased’s estate, the appointment
shall be limited to his accepting
service of the writ or originating summons by which the action was begun unless,
either on making
such an order or on a subsequent application, the court, with
the consent of the Public Trustee, directs that the appointment shall
extend to
taking further steps in the
proceedings.
(7) Where an order is
made under paragraph (4), rules 8(4) and 9(3) and (4) shall apply as if the
order had been made under rule 8
on the application of the
plaintiff.
(8) Where no grant of
probate or administration has been made, any judgment or order given or made in
the proceedings shall bind the
estate to the same extent as it would have been
bound if a grant had been made and a personal representative of the deceased had
been a party to the
proceedings.
Change
of parties by reason of death, etc. (O.15,
r.8)
8.-(1) Where a party to an
action dies or becomes bankrupt but the cause of action survives, the action
shall not abate by reason
of the death or
bankruptcy.
(2) Where at any stage
of the proceedings in any cause or matter the interest or liability of any party
is assigned or transmitted
to or devolves upon some other person, the Court may,
if it thinks it necessary in order to ensure that all matters in dispute may
be
effectually and completely determined and adjudicated upon, order that other
person to be made a party to the cause or matter
and the proceedings to be
carried on as if he had been substituted for the first mentioned
party.
An application for an order
under this paragraph may be made
ex
parte.
(3)
An order may be made under this rule for a person to be made a party to a cause
or matter notwithstanding that he is already a
party to it on the other side of
the record; or on the same side but in a different capacity; but-
(a) if he is already a party on the other side, the order shall be treated as containing a direction that he shall cease to be a party on that other side, and
(b) if he is already a party on the same side but in another capacity, the order may contain a direction that he shall cease to be a party in that other capacity.
(4)
The person on whose application an order is made under this rule must procure
the order to be noted in the cause book, and after
the order has been so noted
that person must, unless the Court otherwise directs, serve the order on every
other person who is a
party to the cause or matter or who becomes or ceases to
be a party by virtue of the order and serve with the order on any person
who
becomes a defendant a copy of the writ or originating summons by which the cause
or matter was begun and form of acknowledgment
of service in Form 2 in Appendix
A.
(5) Any application to the Court
by a person served with an order made
ex
parte under this rule for the discharge or
variation of the order must be made within 14 days after the service of the
order on that
person.
Provisions
consequential on making of order under rule 6 or
8 (O.15,
r.9)
9.-(1) Where an order is made
under rule 6 the writ by which the action in question was begun must be amended
accordingly and must
be indorsed with-
(a) a reference to the order in pursuance of which the amendment is made, and
(b) the date on which the amendment is made;
and
the amendment must be made within such period as may be specified in the order
or, if no period is so specified, within 14 days
after the making of the
order.
(2) Whereby an order under
rule 6 a person is to be made a defendant, the rules as to service of a writ of
summons shall apply accordingly
to service of the amended writ on him, but
before serving the writ on him the person on whose application the order was
made must
procure the order to be noted in the cause
book.
(3) Where by an order under
rule 6 or 8 a person is to be made a defendant, the rules as to acknowledgment
of service shall apply
accordingly to acknowledgment of service by him, subject,
in the case of a person to be made a defendant by an order under rule 8,
to the
modification that the time limited for acknowledging service shall begin with
the date on which the order is served on him
under rule 8(4) or, if the order is
not required to be served on him, with the date on which the order is noted in
the cause book.
(4) Where by an
order under rule 6 or 8 a person is to be added as a party or is to be made a
party in substitution for some other
party, that person shall not become a party
until-
(a) where the order is made under rule 6, the writ has been amended in relation to him under this rule and (if he is a defendant) has been served on him, or
(b) where the order is made under rule 8, the order has been served on him under rule 8(4) or, if the order is not required to be served on him, the order has been noted in the course book;
and
where by virtue of the foregoing provision a person becomes a party in
substitution for some other party, all things done in the
course of the
proceedings before the making of the order shall have effect in relation to the
new party as they had in relation to
the old, except that acknowledgment of
service by the old party shall not dispense with acknowledgment of service by
the new.
(5) The foregoing
provisions of this rule shall apply in relation to an action begun by
originating summons as they apply in relation
to an action begun by
writ.
Failure to
proceed after death of a party (O.15,
r.10)
10.-(1) If after the death of
a plaintiff or defendant in any action the cause or action survives, but no
order under rule 8 is made
substituting as plaintiff any person in whom the
cause of action vests or, as the case may be, the personal representatives of
the
deceased defendant, the defendant or, as the case maybe, those
representatives may apply to the Court for an order that unless the
action is
proceeded with within such time as may be specified in the order the action
shall be struck out as against the plaintiff
or defendant, as the case may be,
who has died; but where it is the plaintiff who has died, the Court shall not
make an order under
this rule unless satisfied that due notice of the
application has been given to the personal representatives (if any) of the
deceased
plaintiff and to any other interested persons who, in the opinion of
the Court, should be notified.
(2)
Where in any action a counterclaim is made by a defendant, this rule shall apply
in relation to the counterclaim as if the counterclaim
were a separate action
and as if the defendant making the counterclaim were the plaintiff and the
person against whom it is made
a
defendant.
Actions
for possession of land (O.15,
r.11)
11.-(1) Without prejudice to
rule 6, the Court may at any stage of the proceedings in an action for
possession of land order any person
not a party to the action who is in
possession of the land (whether in actual possession or by a tenant) to be added
as a defendant.
(2) An application
by any person for an order under this rule may be made
ex
parte, supported by an affidavit showing
that he is in possession of the land in question and if by a tenant, naming him.
The affidavit
shall specify the applicant’s address for service and Order
12, rule 2(2), (3) and (4), shall apply as if the affidavit were
an
acknowledgment of service.
(3) A
person added as a defendant by an order under this rule shall serve on the
plaintiff a copy of the order giving the added defendant’s
address for
service specified in accordance with paragraph
(2).
Actions for
wrongful interference with goods (O.15,
r.12)
12.-(1) Where the plaintiff
in an action for wrongful interference with goods is one of two or more persons
having or claiming any
interest in the goods, then, unless he has the written
authority of every other such person to sue on the latter’s behalf,
the
writ or originating summons by which the action was begun shall be indorsed with
a statement giving particulars of the plaintiff's
title and identifying every
other person who, to his knowledge, has or claims any interest in the
goods.
This paragraph shall not
apply to an action arising out of an accident on land due to a collision or
apprehended collision involving
a
vehicle.
(2) A defendant to an
action for wrongful interference with goods who desires to show that a third
party has a better right than the
plaintiff as respects all or any part of the
interest claimed by the plaintiff may, at any time after giving notice of
intention
to defend, and before any judgment or order is given or made on the
plaintiff’s claim, apply for directions as to whether any
person named in
the application (not being a person whose written authority the plaintiff has to
sue on his behalf) should be joined
with a view to establishing whether he has a
better right than the
plaintiff.
(3) An application under
paragraph (2) shall be made by summons, which shall be served personally on
every person named in it as well
as being served on the
plaintiff.
(4) Where a person named
in an application under paragraph (2) fails to appear on the hearing of the
summons or to comply with any
direction given by the Court on the application,
the Court may by order deprive him of any right of action against the defendant
for the wrong, either unconditionally or subject to such terms and conditions as
the Court thinks
fit.
Relator
actions (O.15,
r.13)
13. Before the name of any
person is used in any action as a relator, that person must give a written
authorisation so to use his
name to his solicitor and the authorisation must be
filed in the
Registry.
Representative
proceedings (O.15,
r.14)
14.-(1) Where numerous
persons have the same interest in any proceedings, not being such proceedings as
are mentioned in rule 15,
the proceedings may be begun, and, unless the Court
otherwise orders, continued, by or against any one or more of them as
representing
all or as representing all except one or more of
them.
(2) At any stage of
proceedings under this rule the Court may, on the application of the plaintiff,
and on such terms, if any, as
it thinks fit, appoint any one or more of the
defendants or other persons as representing whom the defendants are sued to
represent
all, or all except one or more, of those persons in the proceedings;
and where, in exercise of the power conferred by this paragraph,
the Court
appoints a person not named as a defendant, it shall make an order under rule 6
adding that person as a
defendant.
(3) A judgment or order
given in proceedings under this rule shall be binding on all the persons as
representing whom the plaintiffs
sue or, as the case may be, the defendants are
sued, but shall not be enforced against any person not a party to the
proceedings
except with the leave of the
Court.
(4) An application for the
grant of leave under paragraph (3) must be made by summons which must be served
personally on the person
against whom it is sought to enforce the judgment or
order.
(5) Notwithstanding that a
judgment or order to which any such application relates is binding on the person
against whom the application
is made, that person may dispute liability to have
the judgment or order enforced against him on the ground that by reason of facts
and matters particular to his case he is entitled to be exempted from such
liability.
(6) The Court hearing an
application for the grant of leave under paragraph (3) may order the question
whether the judgment or order
is enforceable against the person against whom the
application is made to be tried and determined in any manner in which any issue
or question in an action may be tried and
determined.
Representation
of interested persons who cannot be ascertained,
etc. (O.15,
r.15)
15.-(1) In any proceedings
concerning –
(a) the estate of a deceased person, or
(b) property subject to a trust, or
(c) the construction of a written instrument, including a statute, the Court, if satisfied that it is expedient so to do, and that one or more of the conditions specified in paragraph (2) are satisfied, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceedings.
(2)
The conditions for the exercise of the power conferred by paragraph (1) are as
follows-
(a) that the person, the class or some member of the class, cannot be ascertained or cannot readily be ascertained;
(b) that the person, class or some member of the class, though ascertained, cannot be found;
(c) that, though the person or the class and the members thereof can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purpose of saving expense.
(3)
Where in any proceedings to which paragraph (1) applies, the Court exercises the
power conferred by that paragraph, a judgment
or order of the Court given or
made when the person or persons appointed in exercise of that power are before
the Court shall be
binding on the person or class represented by the person or
persons so appointed.
(4) Where, in
any such proceedings, a compromise is proposed and some of the persons who are
interested in, or who may be affected
by, the compromise are not parties to the
proceedings (including unborn or unascertained persons) but-
(a) there is some other person in the same interest before the Court who assents to the compromise or on whose behalf the Court sanctions the compromise, or
(b) the absent persons are represented by a person appointed under paragraph (1) who so assents the Court, if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order has been obtained by fraud or non-disclosure of material facts.
Representation
of beneficiaries by trustees, etc. (O.15,
r.16)
16.-(1) Any proceedings,
including proceedings to enforce a security by foreclosure or otherwise, may be
brought by or against trustees,
executors or administrators in their capacity as
such without joining any of the persons having a beneficial interest in the
trust
or estate; and any judgment or order given or made in those proceedings
shall be binding on those persons unless the Court in the
same or other
proceedings otherwise orders on the ground that the trustees, executors or
administrators could not or did not in fact
represent the interests of those
persons in the first-mentioned
proceedings.
(2) Paragraph (1) is
without prejudice to the power of the Court to order any person having such an
interest as aforesaid to be made
a party to the proceedings or to make an order
under rule
15.
Representation
of deceased person interested in
proceedings (O.15,
r.17)
17.-(1) Where in any
proceedings it appears to the Court that a deceased person was interested in the
matter in question in the proceedings
and that he has no personal
representative, the Court may, on the application of any party to the
proceedings, proceed in the absence
of a person representing the estate of the
deceased person or may by order appoint a person to represent that estate for
the purposes
of the proceedings; and any such order, and any judgment or order
subsequently given or made in the proceedings, shall bind the estate
of the
deceased person to the same extent as it would have been bound had a personal
representative of that person been a party to
the
proceedings.
(2) Before making an
order under this rule, the Court may require notice of the application for the
order to be given to such (if
any) of the persons having an interest in the
estate as it thinks
fit.
Declaratory
judgment (O.15,
r.18)
18. No action or other
proceeding shall be open to objection on the ground that a merely declaratory
judgment or order is sought thereby,
and the Court may make binding declarations
of right whether or not any consequential relief is or could be
claimed.
Conduct
of proceedings (O.15,
r.19)
19. The Court may give the
conduct of any action, inquiry or other proceeding to such person as it thinks
fit.
O.16
ORDER 16
THIRD PARTY AND SIMILAR PROCEEDINGS
Third
party notice (O.16,
r.1)
1.-(1) Where in any action a
defendant who has given notice of intention to defend -
(a) claims against a person not already a party to the action any contribution or indemnity; or
(b) claims against such a person 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) requires that any question or issue relating to or connected with the original subject-matter of the action should be determined not only as between the plaintiff and the defendant but also as between either or both of them and a person not already a party to the action;
then,
subject to paragraph (2), the defendant may issue a notice in Form No. 9 in
Appendix A, (in this Order referred to as a third
party notice), containing a
statement of the nature of the claim made against him and, as the case may be,
either of the nature and
grounds of the claim made by him or of the question or
issue required to be
determined.
(2) A defendant to an
action may not issue a third party notice without the leave of the Court unless
the action was begun by writ
and he issues the notice before serving his defence
on the plaintiff.
(3) Where a third
party notice is served on the person against whom it is issued, he shall as from
the time of service be a party
to the action (in this Order referred to as a
third party) with the same rights in respect of his defence against any claim
made
against him in the notice and otherwise as if he had been duly sued in the
ordinary way by the defendant by whom the notice is
issued.
Application
for leave to issue third party notice
(O.16, r.2)
2.-(1) Application for
leave to issue a third party notice maybe made
ex
parte but the Court may direct a summons
for leave to be issued.
(2) An
application for leave to issue a third party notice must be supported by an
affidavit stating-
(a) the nature of the claim made by the plaintiff in the action;
(b) the stage which proceedings in the action have reached;
(c) the nature of the claim made by the applicant or particulars of the question or issue required to be determined, as the case may be, and the facts on which the proposed third party notice is based; and
(d) the name and address of the person against whom the third party notice is to be issued.
Issue,
service and acknowledgment of service, of third party
notice (O.16,
r.3)
3.-(1) The order granting
leave to issue a third party notice may contain directions as to the period
within which the notice is to
be
issued.
(2) There must be served
with every third party notice a copy of the writ or originating summons by which
the action was begun and
of the pleadings (if any) served in the action and a
form of acknowledgment of service in Form No. 2 in Appendix A with such
modifications
as may be
appropriate.
(3) Subject to the
foregoing provisions of this rule, the following provisions of these Rules,
namely, Order 6, rule 6(3), Order 10,
Order 11 and Order 12, shall apply in
relation to a third party notice and to the proceedings begun thereby as
if-
(a) the third party notice were a writ and the proceedings begun thereby an action; and
(b) the defendant issuing the third party notice were a plaintiff and the person against whom it is issued a defendant in that action;
Provided
that in the application of Order 11, rule (1)
(c)
leave may be granted to serve a third party notice outside the jurisdiction on
any necessary or proper party to the proceedings brought
against the
defendant.
Third
party directions (O.16,
r.4)
4.-(1) If the third party
gives notice of intention to defend, the defendant who issued the third party
notice must, by summons to
be served on all the other parties to the action,
apply to the Court for
directions.
(2) If no summons is
served on the third party under paragraph (1), the third party may, not earlier
than 7 days after giving notice
of intention to defend by summons to be served
on all the other parties to the action, apply to the Court for directions or for
an
order to set aside the third party
notice.
(3) On an application for
directions under this rule the Court may-
(a) if the liability of the third party to the defendant who issued the third party notice is established on the hearing, order such judgment as the nature of the case may require to be entered against the third party in favour of the defendant; or
(b) order any claim, question or issue stated in the third party notice to be tried in such manner as the Court may direct; or
(c) dismiss the application and terminate the proceedings on the third party notice;
and
may do so either before or after any judgment in the action has been signed by
the plaintiff against the
defendant.
(4) On an application
for directions under this rule the Court may give the third party leave to
defend the action, either alone or
jointly with any defendant, upon such terms
as may be just, or to appear at the trial and to take such part therein as may
be just,
and generally may make such orders and give such directions as appear
to the Court proper for having the rights and liabilities of
the parties most
conveniently determined and enforced and as to the extent to which the third
party is to be bound by any judgment
or decision in the
action.
(5) Any order made or
direction given under this rule maybe varied or rescinded by the Court at any
time.
Default of
third party, etc. (O.16,
r.5)
5.
(1) If a third party does not give notice
of intention to defend or, having been ordered to serve a defence, fails to do
so-
(a) he shall be deemed to admit any claim stated in the third party notice and shall be bound by any judgment (including judgment by consent) or decision in the action in so far as it is relevant to any claim, question or issue stated in that notice; and
(b) the defendant by whom the third party notice was issued may, if judgment in default is given against him in the action, at any time after satisfaction of that judgment and, with the leave of the Court, before satisfaction thereof, enter judgment against the third party in respect of any contribution or indemnity claimed in the notice, and, with the leave of the Court, in respect of any other relief or remedy claimed therein.
(2)
If a third party or the defendant by whom a third party notice was issued makes
default in serving any pleading which he is ordered
to serve, the Court may, on
the application by summons of that defendant or the third party, as the case may
be, order such judgment
to be entered for the applicant as he is entitled to on
the pleadings or may make such other order as may appear to the Court necessary
to do justice between the
parties.
The Court may at any time
set aside or vary a judgment entered under paragraph (1)(b) or paragraph (2) on
such terms (if any) as it
thinks
just.
Setting
aside third party proceedings (O.16,
r.6)
6. Proceedings on a third
party notice may, at any stage of the proceedings, be set aside by the
Court.
Judgment
between defendant and third party (O.16,
r.7)
7.-(1) Where in any action a
defendant has served a third party notice, the Court may at or after the trial
of the action or, if the
action is decided otherwise than by trial, on an
application by summons or motion, order such judgment as the nature of the case
may require to be entered for the defendant against the third party or for the
third party against the
defendant.
(2) Where judgment is
given for the payment of any contribution or indemnity to a person who is under
a liability to make a payment
in respect of the same debt or damage, execution
shall not issue on the judgment without the leave of the Court until that
liability
has been
discharged.
Claims
and issues between a defendant and some other
party (O.16,
r.8)
8.-(1) Where in any action a
defendant who has given notice of intention to defend-
(a) claims against a person who is already a parry to the action any contribution or indemnity; or
(b) claims against such a person 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) requires that any question or issue relating to or connected with the original subject-matter of the action should be determined not only as between the plaintiff and himself but also as between either or both of them and some other person who is already a party to the action;
then
subject to paragraph (2), the defendant may, without leave, issue and serve on
that person a notice containing a statement of
the nature and grounds of his
claim or, as the case may be, of the question or issue required to be
determined.
(2) Where a defendant
makes such a claim as is mentioned in paragraph (1) and that claim could be made
by him by counterclaim in the
action, paragraph (1) shall not apply in relation
to the claim.
(3) No acknowledgment
of service of such a notice shall be necessary if the person on whom it is
served has acknowledged service of
the writ or originating summons in the action
or is a plaintiff therein, and the same procedure shall be adopted for the
determination
between the defendant by whom, and the person on whom, such a
notice is served of the claim, question or issue stated in the notice
as would
be appropriate under this Order if the person served with the notice were a
third party and (where he has given notice of
intention to defend the action or
is a plaintiff) had given notice of intention to defend the claim, question or
issue.
Claims by
third and subsequent parties (O.16,
r.9)
9.-(1) Where a defendant has
served a third party notice and the third party makes such a claim or
requirement as is mentioned in
rule 1 or rule 8, this Order shall, with the
modification mentioned in paragraph (2) and any other necessary modifications,
apply
as if the third party were a defendant; and similarly where any further
person to whom by virtue of this rule this Order applies
as if he were a third
party makes such a claim or
requirement.
(2) The modification
referred to in paragraph (1) is that paragraph (3) shall have effect in relation
to the issue of a notice under
rule 1 by a third party in substitution for rule
1(2).
(3) A third party may not
issue a notice under rule 1 without leave of the Court unless the action in
question was begun by writ and
he issues the notice before the expiration of 14
days after the time limited for acknowledging service of the notice issued
against
him.
Offer or
contribution (O.16, r
10)
10. If, at any time he has
acknowledged service, a party to an action who stands to be held liable in the
action to another party
to contribute towards any debt or damages which may be
recovered against that other party in the action, makes (without prejudice
to
his defence) a written offer to that other party to contribute to a specified
extent to the debt or damages, then, notwithstanding
that he reserves the right
to bring the offer to the attention of the Judge at the trial, the offer shall
not be brought to the attention
of the Judge until after all questions of
liability and amount of debt or damages have been
decided.
Counterclaim
by defendant (O.16,
r.11)
11. Where in any action a
counterclaim is made by a defendant, the foregoing provisions of this Order
shall apply in relation to the
counter-claim as if the subject-matter of the
counterclaim were the original subject-matter of the action, and as if the
person making
the counterclaim were the plaintiff and the person against whom it
is made a defendant.
O.17
ORDER 17
INTERPLEADER
Entitlement
to relief byway of interpleader (O.17,
r.1)
1.-(1) Where-
(a) a person is under a liability in respect of a debt or in respect of any money, goods or chattels and he is, or expects to be, sued for or in respect of that debt or money or those goods or chattels by two or more persons making adverse claims thereto, or
(b) claim is made to any money, goods or chattels taken or intended to be taken by a sheriff in execution under any process, or to the proceeds or value of any such goods or chattels, by a person other than the person against whom the process is issued, the person under liability as mentioned in sub-paragraph (a), or (subject to rule 2) the sheriff, may apply to the Court for relief by way of interpleader.
(2)
References in this Order to a sheriff shall be construed as including references
to any other officer charged with the execution
of process by or under the
authority of the High
Court.
Claim to
goods, etc., taken in execution (O.17,
r.2)
2.-(1) Any person making a
claim to or in respect of any money, goods or chattels taken or intended to be
taken in execution under
process of the Court, or to the proceeds or value of
any such goods or chattels, must give notice of his claim to the sheriff charged
with the execution of the process and must include in his notice a statement of
his address, and that address shall be his address
for
service.
(2) On receipt of a claim
made under this rule the sheriff must forthwith give notice thereof to the
execution creditor and the execution
creditor must, within 7 days after
receiving the notice, give notice to the sheriff informing him whether he admits
or disputes the
claim.
An execution
creditor who gives notice in accordance with this paragraph admitting a claim
shall only be liable to the sheriff for
any fees and expenses incurred by the
sheriff before receipt of that
notice.
(3) Where -
(a) the sheriff receives: a notice from an execution creditor under paragraph (2) disputing a claim; or the execution creditor fails, within the period mentioned in that paragraph, to give the required notice, and
(b) the claim made under this rule is not withdrawn, the sheriff may apply to the Court for relief under this Order.
(4)
A sheriff who
receives a notice from an execution
creditor under paragraph (2) admitting a claim made under this rule shall
withdraw from possession
of the money, goods or chattels claimed and may apply
to the Court for relief under this Order of the following kind, that is to
say,
an order restraining the bringing of an action against him for or in respect of
his having taken possession of that money or
those goods or
chattels.
Mode
of application (O.17,
r.3)
3.-(1) An application for
relief under this Order must be made by originating summons unless made in a
pending action, in which case
it must be made by summons in the
action.
(2) Where the applicant is
a sheriff who has withdrawn from possession of money, goods or chattels taken in
execution and who is applying
for relief under rule 2(4), the summons must be
served on any person who made a claim under that rule to or in respect of that
money
or those goods or chattels, and that person may attend the hearing of the
application.
(3) An originating
summons under this rule shall be in Form No. 10 in Appendix
A.
(4) Subject to paragraph (5), a
summons under this rule must be supported by evidence that the
applicant-
(a) claims no interest in the subject-matter in dispute other than for charges or costs,
(b) does not collude with any of the claimants to that subject-matter, and
(c) is willing to pay or transfer that subject-matter into Court or to dispose of it as the Court may direct.
(5)
Where the applicant is a sheriff, he shall not provide such evidence as is
referred to in paragraph (4) unless directed by the
Court so to
do.
(6) Any person who makes a
claim under rule 2 and who is served with a summons under this rule shall within
14 days serve on the execution
creditor and the sheriff an affidavit specifying
any money and describing any goods and chattels claimed and setting out the
grounds
upon which such claim is
based.
(7) Where the applicant is a
sheriff a summons under this rule must give notice of the requirement in
paragraph
(6).
Powers of
Court hearing summons (O.17,
r.4)
4.-(1) Where on the hearing of
a summons under this Order all the persons by whom adverse claims to the
subject-matter in dispute
(hereafter in this Order referred to as "the
claimants") appear, the Court may order-
(a) that any claimant be made a defendant in any action pending with respect to the subject-matter in dispute in substitution for or in addition to the applicant for relief under this Order, or
(b) that an issue between the claimants be stated and tried and may direct which of the claimants is to be plaintiff and which defendant.
(2)
Where-
(a) the applicant on a summons under this Order is a sheriff, or
(b) all the claimants consent or any of them so requests, or
(c) the question at issue between the claimants is a question of law and the facts are not in dispute, the Court may summarily determine the question at issue between the claimants and make an order accordingly on such terms as may be just.
(3)
Where a claimant, having been duly served with a summons for relief under this
Order, does not appear on the hearing of the summons
or, having appeared, fails
or refuses to comply with an order made in the proceedings, the Court may make
an order declaring the
claimant, and all persons claiming under him, for ever
barred from prosecuting his claim against the applicant for such relief and
all
persons claiming under him, but such an order shall not affect the rights of the
claimants as between
themselves.
Power
to order sale of goods taken in execution
(O.17, r.5)
5. Where an application
for relief under this Order is made by a sheriff who has taken possession of any
goods or chattels in execution
under any process, (and a claimant alleges that
he is entitled, under a bill of sale or otherwise, to the goods or chattels by
way
of security for debt, the Court may order those goods or chattels or any
part thereof to be sold and may direct that the proceeds
of sale be applied in
such manner and on such terms as may be just and as may be specified in the
order.
Power to
stay proceedings (O.17,
r.6)
6. Where a defendant to an
action applies for relief under this Order in the action, the Court may by order
stay all further proceedings
in the
action.
Other
powers (O.17,
r.7)
7. Subject to the foregoing
rules of this Order, the Court may in or for the purposes of any interpleader
proceedings make such order
as to costs or any other matter as it thinks
just.
One order
in several causes or matters (O.17,
r.8)
8. Where the Court considers
it necessary or expedient to make an order in any interpleader proceedings in
several causes or matters,
the Court may make such an order; and the order shall
be entitled in all those causes or matters and shall be binding on all the
parties to
them.
Discovery
(O.17, r.9)
9. Orders 24 and 26
shall, with the necessary modifications, apply in relation to an interpleader
issue as they apply in relation
to any other cause or
matter.
Trial of
interpleader issue (O.17,
r.10)
10. (1) Order 35 shall, with
the necessary modifications, apply to the trial of an interpleader issue as it
applies to the trial of
an
action.
(2) The Court by whom an
interpleader issue is tried may give such judgment or make such order as finally
to dispose of all questions
arising in the interpleader
proceedings.
O.18
ORDER 18
PLEADINGS
Service
of statement of claim (O.18,
r.1)
1. Unless the Court gives
leave to the contrary or a statement of claim is indorsed on the writ, the
plaintiff must serve a statement
of claim on the defendant or, if there are two
or more defendants, on each defendant, and must do so either when the writ is
served
on that defendant or at any time after service of the writ but before the
expiration of 14 days after that defendant gives notice
of intention to
defend.
Service
of defence (O.18,
r.2)
2.-(1) Subject to paragraph
(2), a defendant who gives notice of intention to defend an action must, unless
the Court gives leave
to the contrary, serve a defence on the plaintiff before
the expiration of 14 days after the time limited for acknowledging service
of
the writ or after the statement of claim is served on him, whichever is the
later.
(2) If a summons under Order
14, rule 1, or under Order 86, rule 1, is served on a defendant before he serves
his defence, paragraph
(1) shall not have effect in relation to him unless by
the order made on the summons he is given leave to defend the action and,
in
that case, shall have effect as if it required him to serve his defence within
14 days after the making of the order or within
such other period as may be
specified
therein.
Service
of reply and defence to counterclaim
(O.18, r.3)
3.-(1) A plaintiff on
whom a defendant serves a defence must serve a reply on that defendant if it is
needed for compliance with rule
7 and if no reply is served, rule 13(1) will
apply.
(2) A plaintiff on whom a
defendant serves a counterclaim must, if he intends to defend it, serve on that
defendant a defence to
counterclaim.
(3) Where a plaintiff
serves both a reply and a defence to counterclaim on any defendant, he must
include them in the same
document.
(4) A reply to any
defence must be served by the plaintiff before the expiration of 14 days after
the service on him of that defence,
and a defence to counterclaim must be served
by the plaintiff before the expiration of 14 days after the service on him of
the counterclaim
to which it
relates.
Pleadings
subsequent to reply (O.18,
r.4)
4. No pleading subsequent to a
reply or a defence to counterclaim shall be served except with the leave of the
Court.
Pleadings:
formal requirements (O.18,
r.5)
5.-(1) Every pleading in an
action must bear on its face -
(a) the year in which the writ in the action was issued and the number of the action,
(b) the title of the action,
(c) the description of the pleading, and
(d) the date on which it was served.
(2)
Every pleading must, if necessary, be divided into paragraphs numbered
consecutively, each allegation being so far as convenient
contained in a
separate paragraph.
(3) Dates, sums
and other numbers must be expressed in a pleading in figures and not in
words.
(4) Every pleading of a
party must be indorsed -
(a) where the party sues or defends in person, with his name and address;
(b) in any other case, with the name or firm and business address of the solicitor by whom it was served and also (if the solicitor is the agent of another) the name or firm and business address of his principal.
(5)
Every pleading must be signed by the party’s solicitor or by the party, if
he sues or defends in
person.
Facts,
not evidence, to be pleaded (O.18,
r.6)
6.-(1) Subject to the
provisions of this rule, and rules 9, 10 and 11, every pleading must 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 those facts are to be proved, and the statement must be as
brief as the nature of the case
admits.
(2) Without prejudice to
paragraph (1), the effect of any document or the purport of any conversation
referred to in the pleading
must, if material, be briefly stated, and the
precise words of the document or conversation shall not be stated, except in so
far
as those words are themselves
material.
(3) A party need not
plead any fact if it is presumed by law to be true or the burden of disproving
it lies on the other party, unless
the other party has specifically denied it in
his pleading.
(4) A statement that
a thing has been done or that an event has occurred, being a thing or event the
doing or occurrence of which,
as the case may be, constitutes a condition
precedent necessary for the case of a party is to be implied in his
pleading.
Matters
which must be specifically pleaded (O.18,
r.7)
7.-(1) A party must in any
pleading subsequent to a statement of claim plead specifically any matter, for
example, performance, release,
any relevant statute of limitation, fraud or any
fact showing illegality -
(a) which he alleges makes any claim or defence of the opposite party not maintainable; or
(b) which, if not specifically pleaded, might take the opposite party by surprise; or
(c) which raises issues of fact not arising out of the preceding pleading.
(2)
Without prejudice to paragraph (1), a defendant to an action for the recovery of
land must plead specifically every ground of
defence on which he relies, and a
plea that he is in possession of the land by himself or his tenant is not
sufficient.
(3) A claim for
exemplary damages must be specifically pleaded together with the facts on which
the party pleading
relies.
Matter
may be pleaded whenever arising (O.18,
r.8)
8. Subject to rules 6(1),9 and
14(2), a party may in any pleading plead any matter which has arisen at any
time, whether before or
since the issue of the
writ.
Departure
(O.18, r.9)
9.-(1) A party shall
not in any pleading make an allegation of fact, or raise any new ground or
claim, inconsistent with a previous
pleading of
his.
(2) Paragraph (1) shall not be
taken as prejudicing the right of a party to amend, or apply for leave to amend,
his previous pleading
so as to plead the allegations or claims in the
alternative.
Points
of law may be pleaded (O.18,
r.10)
10. A party may by his
pleading raise any point of
law.
Particulars
of pleading (O.18,
r.11)
11.-(1) Subject to paragraph
(2), every pleading must contain the necessary particulars of any claim, defence
or other matter pleaded
including, without prejudice to the generality of the
foregoing words-
(a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and
(b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition, of mind except knowledge, particulars of the facts on which the party relies.
(2)
Where it is necessary to give particulars of debt, expenses or damages and those
particulars exceed 3 folios, they must be set
out in a separate document
referred to in the pleading and the pleading must state whether the document has
already been served and,
if so, when, or is to be served with the
pleading.
(3) The Court may order a
party to serve on any other party particulars of any claim, defence or other
matter stated in his pleading,
or in any affidavit of his ordered to stand as a
pleading, or a statement of the nature of the case on which he relies, and the
order
may be made on such terms as the Court thinks
just.
(4) Where a party alleges as
a fact that a person had knowledge or notice of some fact, matter or thing,
then, without prejudice to
the generality of paragraph (3) the Court may, on
such terms as it thinks just, order that party to serve on any other
party-
(a) where he alleges knowledge, particulars of the facts on which he relies, and
(b) where he alleges notice, particulars of the notice.
(5)
An order under this rule shall not be made before service of the defence unless,
in the opinion of the Court, the order is necessary
or desirable to enable the
defendant to plead or for some other special
reason.
(6) Where the applicant for
an order under this rule did not apply by letter for the particulars he
requires, the Court may refuse
to make the order unless of opinion that there
were sufficient reasons for an application by letter not having been
made.
(7) Where particulars are
given pursuant to a request, or order of the Court, the request or order shall
be incorporated with the
particulars, each item of the particulars following
immediately after the corresponding item of the request or
order.
Admissions
and denials (O.18,
r.12)
12.-(1) Subject to paragraph
(4), any allegation of fact made by a party in his pleading is deemed to be
admitted by the opposite
party unless it is traversed by that party in his
pleading or a joinder of issue under rule 13 operates as a denial of
it.
(2) A traverse maybe made
either by a denial or by a statement of non-admission and either expressly or by
necessary implication.
(3) Subject
to paragraph (4), every allegation of fact made in a statement of claim or
counterclaim which the party on whom it is
served does not intend to admit must
be specifically traversed by him in his defence or defence to counterclaim, as
the case may
be; and a general denial of such allegations, or a general
statement of non-admission of them, is not a sufficient traverse of
them.
(4) Any allegation that a
party has suffered damage and any allegation as to the amount of damages is
deemed to be traversed unless
specifically
admitted.
Denial
by joinder of issue (O.18,
r.13)
13.-(1) If there is no reply
to a defence, there is an implied joinder of issue on that
defence.
(2) Subject to paragraph
(3)-
(a) there is at the close of pleadings an implied joinder of issue on the pleading last served, and
(b) a party may in his pleading expressly join issue on the next preceding pleading.
(3)
There can be no joinder of issue, implied or express, on a statement of claim or
counterclaim.
(4) A joinder of
issue operates as a denial of every material allegation of fact made in the
pleading on which there is an implied
or express joinder of issue unless, in the
case of an express joinder of issue, any such allegation is excepted from the
joinder
and is stated to be admitted, in which case the express joinder of issue
operates as a denial of every other such
allegation.
Statement
of claim (O.18,
r.14)
14.-(1) A statement of claim
must state specifically the relief or remedy which the plaintiff claims; but
costs need not be specifically
claimed.
(2) A statement of claim
must not contain any allegation or claim in respect of a cause of action unless
that cause of action is mentioned
in the writ or arises from facts which are the
same as, or include or form part of, facts giving rise to a cause of action so
mentioned;
but subject to that, a plaintiff may in his statement of claim alter,
modify or extend any claim made by him in the indorsement of
the writ without
amending the indorsement.
(3) Every
statement of claim must bear on its face a statement of the date on which the
writ in the action was
issued.
Defence
of tender (O.18,
r.15)
15. Where in any action a
defence of tender before action is pleaded, the defendant must pay into court in
accordance with Order 22
the amount alleged to have been tendered, and the
tender shall not be available as a defence unless and until payment into court
has been
made.
Defence of
set-off (O.18,
r.16)
16. Where a claim by a
defendant to a sum of money (whether of an ascertained amount or not) is relied
on as a defence to the whole
or part of a claim made by the plaintiff, it may be
included in the defence and set-off against the plaintiffs claim, whether or
not
it is also added as a
counterclaim.
Counterclaim
and defence to counterclaim (O.18,
r.17)
17. Without prejudice to the
general application of this Order to a counterclaim and a defence to
counterclaim, or to any provision
thereof which applies to either of those
pleadings specifically,-
(a) rule 14(1) shall apply to a counterclaim as if the counterclaim were a statement of claim and the defendant making it a plaintiff;
(b) Rules 7(2), 15 and 16 shall, with the necessary modifications apply to a defence to counterclaim as they apply to a defence.
Striking
out pleadings and endorsements (O.18,
r.18)
18.-(1) The Court may at any
stage of the proceedings order to be struck out or amended any pleading or the
indorsement of any writ
in the action, or anything in any pleading or in the
indorsement, on the ground that-
(a) it discloses no reasonable cause of action or defence, as the case may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court;
and
may order the action to be stayed or dismissed or judgment to be entered
accordingly, as the case may
be.
(2) No evidence shall be
admissible on an application under paragraph
(1)(a).
(3) This rule shall, so far
as applicable, apply to an originating summons and a petition as if the summons
or petition, as the case
may be, were a
pleading.
Close
of pleadings (O.18,
r.19)
19.-(1) The pleadings in an
action are deemed to be closed-
(a) at the expiration of 14 days after service of the reply or, if there is no reply but only a defence to counterclaim, after service of the defence to counterclaim, or
(b) if neither a reply nor a defence to counterclaim is served, at the expiration of 14 days after service of the defence.
(2)
The pleadings in an action are deemed to be closed at the time provided by
paragraph (1) notwithstanding that any request or order
for particulars has been
made but has not been complied with at that
time.
Trial
without pleadings (O.18,
r.20)
20.-(1) Where in an action to
which this rule applies any defendant has given notice of intention to defend in
the action, the plaintiff
or that defendant may apply to the Court by summons
for an order that the action shall be tried without pleadings, or further
pleadings,
as the case may be.
(2)
If, on the hearing of an application under this rule, the Court is satisfied
that the issues in dispute between the parties can
be defined without pleadings
or further pleadings, or that for any other reason the action can properly be
tried without pleadings
or further pleadings, as the case may be, the Court
shall order the action to be so tried, and may direct the parties to prepare
a
statement of the issues in dispute or, if the parties are unable to agree such a
statement, may settle the statement
itself.
(3) Where the Court makes
an order under paragraph (2), it shall, and where it dismisses an application
for such an order, it may,
give such directions as to the further conduct of the
action as may be appropriate, and Order 25, rules 2 to 7, shall, with the
omission
of so much of rule 6(1) as requires parties to serve a notice
specifying the orders and directions which they desire and with any
other
necessary modifications, apply as if the application under this rule were a
summons for directions.
(4) This
rule applies to every action begun by writ other than one which
includes-
(a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or
(b) a claim by the plaintiff based on an allegation of fraud.
Conviction,
etc. to be adduced in evidence: matters to be
pleaded (O.18,
r.21)
21.-(1) If in any action
which is to be tried with pleadings, any party intends to adduce evidence that a
person was convicted of
an offence by or before a court in Fiji or by a Fiji
court-martial there or elsewhere, he must include in his pleading a statement
of
his intention with particulars of-
(a) the conviction and the date thereof,
(b) the court or court-martial which made the conviction, and
(c) the issue in the proceedings to which the conviction is relevant.
(2)
Where a party’s pleading includes such a statement as is mentioned in
paragraph (1) then if the opposite party -
(a) denies the conviction, to which the statement relates, or
(b) alleges that the conviction was erroneous, or
(c) denies that the conviction is relevant to any issue in the proceedings, he must make the denial or allegation in his pleading.
O.19
ORDER 19
DEFAULT OF PLEADINGS
Default
in service of statement of claim (O.19,
r.1)
1. Where the plaintiff is
required by these Rules to serve a statement of claim on a defendant and he
fails to serve it on him, the
defendant may, after the expiration of the period
fixed by or under these Rules for service of the statement of claim, apply to
the
Court for an order to dismiss the action, and the Court may by order dismiss
the action or make such other order on such terms as
it thinks
just.
Default of
defence: claim for liquidated demand
(O.19, r.2)
2.-(1) Where the
plaintiff's claim against a defendant is for a liquidated demand only, then, if
that defendant fails to serve a defence
on the plaintiff, the plaintiff may,
after the expiration of the period fixed by or under these Rules for service of
the defence,
enter final judgment against that defendant for a sum not exceeding
that claimed by the writ in respect of the demand and for costs,
and proceed
with the action against the other defendants, if
any.
(2) Order 13, rule 1(2), shall
apply for the purposes of this rule as it applies for the purposes of that
rule.
Default of
defence: claim for unliquidated damages
(O.19, r.3)
3. Where the
plaintiff’s claim against a defendant is for unliquidated damages only,
then, if that defendant fails to serve
a defence on the plaintiff, the plaintiff
may, after the expiration of the period fixed by or under these Rules for
service of the
defence, enter interlocutory judgment against that defendant for
damages to be assessed and costs, and proceed with the action against
the other
defendants, if
any.
Default of
defence: claim for detention of goods
(O.19, r.4)
4.-(1) Where the
plaintiff's claim against a defendant relates to the, detention of goods only,
then, if that defendant fails to serve
a defence on the plaintiff, the plaintiff
may, after the expiration of the period fixed by or under these Rules for the
service of
the defence-
(a) at his option enter either-
(i) interlocutory judgment against that defendant for delivery of the goods or their value to be assessed and costs, or
(ii) interlocutory judgment for the value of the goods to be assessed and costs, or
(b) apply by summons for judgment against that defendant for delivery of the goods without giving him the alternative of paying their assessed value,
and
in any case proceed with the action against the other defendants, if
any.
(2) A summons under paragraph
(1)(b) must be supported by affidavit and, notwithstanding Order 65, rule 9, the
summons and a copy
of the affidavit must be served on the defendant against whom
judgment is
sought.
Default
of defence: Claim for possession of land
(O.19,
r.5)
5.-(1)
Where the plaintiff’s claim against a defendant is for possession of land
only, then, if that defendant fails to serve
a defence on the plaintiff, the
plaintiff may after the expiration of the period fixed by or under these Rules
for service of the
defence, and on producing a certificate by his barrister and
solicitor, or (if he sues in person) an affidavit, stating that he is
not
claiming any relief in the action of the nature specified in order 88 rule 1,
enter judgment for possession of the land as against
that defendant and for
costs, and proceed with the action against the other defendants, if
any.
(2) Where there is more than
one defendant, judgment entered under this rule shall not be enforced against
any defendant unless and
until judgment for possession of the land has been
entered against all the
defendants.
Default
of defence: mixed claims (O.19,
r.6)
6. Where the plaintiff makes
against a defendant two or more of the claims mentioned in rules 2 to 5, and no
other claim, then, if
that defendant fails to serve a defence on the plaintiff,
the plaintiff may, after the expiration of the period fixed by or under
these
Rules for service of the defence, enter against that defendant such judgment in
respect of any such claim as he would be entitled
to enter under those rules if
that were the only claim made, and proceed with the action against the other
defendants, if
any.
Default of
defence: other claims (O.19,
r.7)
7.-(1) Where the plaintiff
makes against a defendant or defendants a claim of a description not mentioned
in rules 2 to 5, then, if
the defendant or all the defendants (where there is
more than one) fails or fail to serve a defence on the plaintiff, the plaintiff
may, after the expiration of the period fixed by or under these Rules for
service of the defence, apply to the Court for judgment,
and on the hearing of
the application the Court shall give such judgment as the plaintiff appears
entitled to on his statement of
claim.
(2) Where the plaintiff
makes such a claim as is mentioned in paragraph (1) against more than one
defendant, then, if one of the defendants
makes default as mentioned in that
paragraph, the plaintiff may-
(a) if his claim against the defendant in default is severable from his claim against the other defendants, apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or
(b) set down the action on motion for judgment against the defendant in default at the time when the action is set down for trial, or is set down on motion for judgment, against the other defendants.
(3)
An application under paragraph (1) must be by summons or
motion.
Default
of defence to counterclaim (O.19,
r.8)
8. A defendant who
counterclaims against a plaintiff shall be treated for the purposes of rule 7 as
if he were a plaintiff who had
made against a defendant the claim made in the
counterclaim and, accordingly, where the plaintiff or any other party against
whom
the counterclaim is made fails to serve a defence to counterclaim, those
rules shall apply as if the counterclaim were a statement
of claim, the defence
to counterclaim a defence and the parties making the counterclaim and against
whom it is made were plaintiffs
and defendants respectively, and as if
references to the period fixed by or under these Rules for service of the
defence were references
to the period so fixed for service of the defence to
counterclaim.
Setting
aside judgment (O.19,
r.9)
9. The Court may, on such
terms as it thinks just, set aside or vary any judgment entered in pursuance of
this Order.
O.20
ORDER 20
AMENDMENT
Amendment
of writ without leave (O.20, r.
1)
1.-(1) Subject to paragraph (3),
the plaintiff may, without the leave of the Court, amend the writ once at any
time before the pleadings
in the action begun by the writ are deemed to be
closed.
(2) Where a writ is amended
under this rule after service thereof, then, unless the Court otherwise directs
on an application made
ex parte, the amended writ must be served on each
defendant to the action.
(3) This
rule shall not apply in relation to an amendment which consists
of-
(a) the addition, omission or substitution of a party to the action or an alteration of the capacity in which a party to the action sues or is sued, or
(b) the addition or substitution of a new cause of action, or
(c) (without prejudice to rule 3(1)) an amendment of the statement of claim (if any) indorsed on the writ,
unless
the amendment is made before service of the writ on any party to the
action.
Amendment
of acknowledgment of service (O.20, r.
2)
2. (1) Subject to paragraph (2),
a party may not amend his acknowledgment of service without the leave of the
Court.
(2) A party whose
acknowledgment of service contains a statement to the effect
that-
(a) he does, or
(b) he does not,
intend
to contest the proceedings to which the acknowledgment relates may, without the
leave of the Court, amend the acknowledgment
by substituting for that statement
a statement to the opposite effect, provided that in a case falling under
sub-paragraph (b) the
amendment is made before judgment has been obtained in the
proceedings.
(3) Where an
acknowledgment of service is authorised to be amended under this rule, a fresh
acknowledgment, amended as so authorised,
must be handed in at or sent by post
to the Registry and Order 12, rule 3 shall apply
accordingly.
Amendment
of pleadings without leave (O.20,
r.3)
3.-(1) A party may, without
the leave of the Court, amend any pleading of his once at any time before the
pleadings are deemed to
be closed and, where he does so, he must serve the
amended pleading on the opposite
party.
(2) Where an amended
statement of claim is served on a defendant-
(a) the defendant, if he has already served a defence on the plaintiff, may amend his defence, and
(b) the period for service of his defence or amended defence, as the case may be, shall be either the period fixed by or under these Rules for service of his defence or a period of 14 days after the amended statement of claim is served on him, whichever expires later.
(3)
Where an amended defence is served on the plaintiff by a
defendant-
(a) the plaintiff, if he has already served a reply on that defendant, may amend his reply, and
(b) the period for service of his reply or amended reply, as the case may be, shall be 14 days after the amended defence is served on him.
(4)
In paragraphs (2) and (3) references to a defence and a reply include references
to a counterclaim and a defence to counterclaim
respectively.
(5) Where an amended
counterclaim is served by a defendant on a party (other than the plaintiff)
against whom the counterclaim is
made, paragraph (2) shall apply as if the
counterclaim were a statement of claim and as if the party by whom the
counterclaim is
made were the plaintiff and the party against whom it is made a
defendant.
(6) Where a party has
pleaded to a pleading which is subsequently amended and served on him under
paragraph (1), then, if that party
does not amend his pleading under the
foregoing provisions of this rule, he shall be taken to rely on it in answer to
the amended
pleading, and Order 18, rule 13(2), shall have effect in such a case
as if the amended pleading had been served at the time when
that pleading,
before its amendment under paragraph (1), was
served.
Application
for disallowance of amendment made without leave
(O.20,
r.4)
4.-(1) Within 14 days after
the service on a party of a writ amended under rule 1(1) or of a pleading
amended under rule 3(1), that
party may apply to the Court to disallow the
amendment.
(2) Where the Court
hearing an application under this rule is satisfied that if an application for
leave to make the amendment in
question had been made under rule 5 at the date
when the amendment was made under rule 1(1) or rule 3(1) leave to make the
amendment
or part of the amendment would have been refused, it shall order the
amendment or that part to be struck
out.
(3) Any order made on an
application under this rule may be made on such terms as to costs or otherwise
as the Court thinks
just.
Amendment
of writ or pleading with leave (O.20,
r.5)
5.-(1) Subject to Order 15,
rules 6, 8 and 9 and the following provisions of this rule, the Court may at any
stage of the proceedings
allow the plaintiff to amend his writ, or any party to
amend his pleading, on such terms as to costs or otherwise as may be just
and in
such manner (if any) as it may
direct.
(2) Where an application to
the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5)
is made after any relevant
period of limitation current at the date of issue of
the writ has expired, the Court may nevertheless grant such leave in the
circumstances
mentioned in that paragraph if it thinks it just to do
so.
(3) An amendment to correct the
name of a party may be allowed under paragraph (2) notwithstanding that it is
alleged that the effect
of the amendment will be to substitute a new party if
the Court is satisfied that the mistake sought to be corrected was a genuine
mistake and was not misleading or such as to cause any reasonable doubt as to
the identity of the person intending to sue or, as
the case may be, intended to
be sued.
(4) An amendment to alter
the capacity in which a party sues may be allowed under paragraph (2) if the new
capacity is one which that
party had at the date of the commencement of the
proceedings or has since
acquired.
(5) An amendment may be
allowed under paragraph (2) notwithstanding that the effect of the amendment
will be to add or substitute
a new cause of action if the new cause of action
arises out of the same facts or substantially the same facts as a cause of
action
in respect of which relief has already been claimed in the action by the
party applying for leave to make the
amendment.
Amendment
of other originating process (O.20,
r.6)
6. Rule 5 shall have effect in
relation to an originating summons, a petition and an originating notice of
motion as it has effect
in relation to a
writ.
Amendment
of certain other documents (O.20,
r.7)
7.-(1) For the purpose of
determining the real question in controversy between the parties to any
proceedings, or of correcting any
defect or error in any proceedings, the Court
may at any stage of the proceedings and either of its own motion or on the
application
of any party to the proceedings order any document in the
proceedings to be amended on such terms as to costs or otherwise as may
be just
and in such manner (if any) as it may
direct.
(2) This rule shall not
have effect in relation to a judgment or
order.
Failure
to amend after order (O.20,
r.8)
8. Where the Court makes an
order under this Order giving any party leave to amend a writ, pleading or other
document, then, if that
party does not amend the document in accordance with the
order before the expiration of the period specified for that purpose in
the
order or, if no period is so specified, of a period of 14 days after the order
was made, the order shall cease to have effect,
without prejudice, however, to
the power of the Court to extend the
period.
Mode of
amendment of writ, etc. (O.20,
r.9)
9.-(1) Where the amendments
authorised under any rule of this Order to be made in a writ, pleading or other
document are so numerous
or of such nature or length that to make written
alterations of the document so as to give effect to them would make it difficult
or inconvenient to read, a fresh document, amended as so authorised, must be
prepared and, in the case of a writ or originating summons,
re-issued, but,
except as aforesaid and subject to any direction given under rule 5 or 7, the
amendments so authorised may be effected
by making in writing the necessary
alterations of the document and, in the case of a writ or originating summons,
causing it to be
re-sealed and filing a copy
thereof.
(2) A writ, pleading or
other document which has been amended under this Order must be indorsed with a
statement that it has been
amended, specifying the date on which it was amended,
the name of the Judge or Registrar by whom the order (if any) authorising the
amendment was made and the date thereof, or, if no such order was made, the
number of the rule of this Order in pursuance of which
the amendment was
made.
Amendment
of judgment and orders (O.20,
r.10)
10. Clerical mistakes in
judgments or orders, or errors arising therein from any accidental slip or
omissions, may at any time be
corrected by the Court on motion or summons
without an appeal.
O.21
ORDER 21
WITHDRAWAL AND DISCONTINUANCE
Withdrawal
of acknowledgment of service (O.21,
r.1)
1. A party who has
acknowledged service in an action may withdraw the acknowledgment at any time
with the leave of the
Court.
Discontinuance
of action, etc., without leave (O.21,
r.2)
2.-(1) Subject to paragraph
(3), the plaintiff in an action begun by writ may, without the leave of the
court, discontinue the action,
or withdraw any particular claim made by him
therein, as against any or all of the defendants at any time not later than 14
days
after service of the defence on him, or, if there are two or more
defendants, of the defence last served, by serving a notice to
that effect on
the defendant concerned, and filing in the Registry a copy
thereof.
(2) Subject to paragraph
(3), a defendant to an action begun by writ may, without the leave of the
Court,-
(a) withdraw his defence or any part of it at any time,
(b) discontinue a counterclaim, or withdraw any particular claim made by him therein, as against any or all of the parties against whom it is made, at any time not later than 14 days after service on him of a defence to counterclaim or, if the counterclaim is made against two or more parties, of the defence to counterclaim last served, by serving a notice to that effect on the plaintiff or other party concerned, and filing in the Registry a copy thereof.
(3)
A party in whose favour an interim payment has been ordered, in accordance with
Order 29, rule 11, may not discontinue any action
or counterclaim, or withdraw
any particular claim therein, except with the leave of the Court or the consent
of all the other parties.
(4) Where
there are two or more defendants to an action begun by writ not all of whom
serve a defence on the plaintiff, and the period
fixed by or under these Rules
for service by any of those defendants of his defence expires after the latest
date on which any other
defendant serves his defence, paragraph (1) shall have
effect as if the reference therein to the service of the defence last served
were a reference to the expiration of that
period.
This paragraph shall apply
in relation to a counterclaim as it applies in relation to an action with the
substitution for references
to a defence, to the plaintiff and to paragraph (1),
of references to a defence to counter-claim, to the defendant and to paragraph
(2) respectively.
(5) The plaintiff
in an action begun by originating summons may, without the leave of the Court,
discontinue the action or withdraw
any particular question or claim in the
originating summons, as against any or all of the defendants at any time not
later than 14
days after service on him of the defendant's affidavit evidence
filed pursuant to Order 28, rule 2 or, if there are two or more defendants,
of
such evidence last served, by serving a notice to that effect on the defendant
concerned.
(6) When there are two
or more defendants to an action begun by originating summons not all of whom
serve affidavit evidence on the
plaintiff, and the period fixed by or under
these Rules for service by any of those defendants of his affidavit evidence
expires
after the latest date on which any other defendant serves his affidavit
evidence, paragraph 5 shall have effect as if the reference
therein to the
service of the affidavit evidence last served were a reference for the
expiration of that period.
(7) If
all the parties to an action consent, the action maybe withdrawn without the
leave of the Court at any time before trial by
a written consent to the action
being withdrawn signed by all the
parties.
Discontinuance
of action, etc., with leave (O.21,
r.3)
3.-(1) Except as provided by
rule 2, a party may not discontinue an action (whether begun by writ or
otherwise) or counterclaim, or
withdraw any particular claim made by him
therein, without the leave of the Court, and the Court hearing an application
for the grant
of such leave may order the action or counterclaim to be
discontinued, or any particular claim made therein to be struck out, as
against
any or all of the parties against whom it is brought or made on such terms as to
costs, the bringing of a subsequent action
or otherwise as it thinks
just.
(2) An application for the
grant of leave under this rule may be made by summons or motion or by notice
under Order 25, Rule
7.
Effect of
discontinuance (O.21,
r.4)
4. Subject to any terms
imposed by the Court in granting leave under rule 3, the fact that a party has
discontinued an action or counterclaim
or withdrawn a particular claim made by
him therein shall not be a defence to a subsequent action for the same, or
substantially
the same, cause of
action.
Stay of
subsequent action until costs paid (O.21,
r.5)
5.-(1) Where a party has
discontinued an action or counterclaim or withdrawn any particular claim made by
him therein and he is liable
to pay any other party’s costs of the action
or counterclaim or the costs occasioned to any other party by the claim
withdrawn,
then if, before payment of those costs, he subsequently brings an
action for the same, or substantially the same, cause of action,
the Court may
order the proceedings in that action to be stayed until those costs are
paid.
(2) An application for an
order under this rule may be made by summons or motion or by notice under Order
25, Rule
7.
Withdrawal of
summons (O.21,
r.6)
6. A party who has taken out a
summons in a cause or matter may not withdraw it without the leave of the
Court.
O.22
ORDER 22
PAYMENT INTO AND OUT OF COURT
Payment
into court (O.22,
r.1)
1.-(1) In any action for a
debtor damages any defendant may at any time pay into Court a sum of money in
satisfaction of the cause
of action in respect of which the plaintiff claims or,
where two or more causes of action are joined in the action, a sum or sums
of
money in satisfaction of any or all of those causes of
action.
(2) On making any payment
into Court under this rule, and on increasing any such payment already made, the
defendant must give notice
thereof in Form No. 11 in Appendix A to the plaintiff
and every other defendant (if any); and within three days after receiving the
notice the plaintiff must send the defendant a written acknowledgement of its
receipt.
(3) A defendant may,
without leave, give notice of an increase in a payment made under this rule but,
subject to that and without
prejudice to paragraph (5), a notice of payment may
not be withdrawn or amended without the leave of the Court which may be granted
on such terms as may be just.
(4)
Where two or more causes of action are joined in the action and money is paid
into Court under this rule in respect of all, or
some only of, those causes of
action, the notice of payment-
(a) must state that the money is paid in respect of all those causes of action or, as the case may be, must specify the cause or causes of action in respect of which the payment is made, and
(b) where the defendant makes separate payments in respect of each, or any two or more, of those causes of action, must specify the sum paid in respect of that cause or, as the case may be, those causes of action.
(5)
Where a single sum of money is paid into Court under this rule in respect of two
or more causes of action, then, if it appears
to the Court that the plaintiff is
embarrassed by the payment, the Court may, subject to paragraph (6), order the
defendant to amend
the notice of payment so as to specify the sum paid in
respect of each cause of
action.
(6) Where a cause of action
under the Compensation to Relatives Act and a cause of action under the Law
Reform (Miscellaneous Provisions) (Death and Interest) Act are joined in an
action, with or without any other cause of action, the causes of action under
the said Acts shall, for the purpose
of paragraph (5), be treated as one cause
of action.
(Cap.
29)
(Cap.
27
(7) For the purposes of
this rule, the plaintiff’s cause of action in respect of a debt or damages
shall be construed as a cause
of action in respect, also, of such interest as
might be included in the judgment, if judgment were given at the date of the
payment
into
Court.
Payment
in by defendant who has counterclaimed
(O.22, r.2)
2. Where a defendant,
who makes by counterclaim a claim against the plaintiff for a debt or damages,
pays a sum or sums of money into
Court under rule 1, the notice of payment must
state, if it be the case, that in making the payment the defendant has taken
into
account and intends to satisfy-
(a) the cause of action in respect of which he claims, or
(b) where two or more causes of action are joined in the counter-claim, all those causes of action or, if not all, which of them.
Acceptance
of money paid into Court (O.22,
r.3)
3.-(1) Where money is paid
into Court under rule 1, then subject to paragraph (2), within 21 days after
receipt of the notice of payment
or, where more than one payment has been made
or the notice has been amended, within 21 days after receipt of the notice of
the last
payment or the amended notice but, in any case, before the trial or
hearing of the action begins, the plaintiff may-
(a) where the money was paid in respect of the cause of action or all the causes of action in respect of which he claims, accept the money in satisfaction of that cause of action or those causes of action, as the case may be, or
(b) where the money was paid in respect of some only of the causes of action in respect of which he claims, accept in satisfaction of any such cause or causes of action the sum specified in respect of that cause or those causes of action in the notice of payment, by giving notice in Form No. 12 in Appendix A to every defendant to the action.
(2)
Where after the trial or hearing of an action has begun –
(a) money is paid into court under rule 1, or
(b) money in court is increased by a further payment into court under that rule,
the
plaintiff may accept the money in accordance with paragraph (1) within 2 days
after receipt of the notice of payment or notice
of the further payment, as the
case may be, but, in any case, before the judge begins to deliver
judgment.
(3) Rule 1(5) shall not
apply in relation to money paid into court in an action after the trial or
hearing of the action has
begun.
(4) On the plaintiff
accepting any money paid into court all further proceedings in the action or in
respect of the specified cause
or causes of action, as the case may be, to which
the acceptance relates, both against the defendant making the payment and
against
any other defendant sued jointly with or in the alternative to him shall
be stayed.
(5) Where money is paid
into court by a defendant who made a counterclaim and the notice of payment
stated, in relation to any sum
so paid, that in making the payment the defendant
had taken into account and satisfied the cause or causes of action, or the
specified
cause or causes of action in respect of which he claimed, then, on the
plaintiff accepting that sum, all further proceedings on the
counterclaim or in
respect of the specified cause or causes of action, as the case may be, against
the plaintiff shall be stayed.
(6)
A plaintiff who has accepted any sum paid into court shall, subject to rules 4
and 9 and Order 80, rule 10 to be entitled to receive
payment of that sum in
satisfaction of the cause or causes of action to which the acceptance
relates.
Order
for payment out of money accepted required in certain cases
(O.22,
r.4)
4.-(1) Where a plaintiff
accepts any sum paid into Court and that sum was paid into Court-
(a) by some but not all of the defendants sued jointly or in the alternative by him, or
(b) with a defence of tender before action, or
(c) in satisfaction either of causes of action arising under the Compensation to Relatives Act and the Law Reform (Miscellaneous Provisions) (Death and Interest) Act, or of a cause of action arising under the first mentioned Act where more than one person is entitled to the money,
(Cap.
29)
(Cap.
27)
the money in Court shall not be paid out except under paragraph (2) or in pursuance of an order of the Court, and the order shall deal with the whole costs of the action or of the cause of action to which the payment relates, as the case may be.
(2)
Where an order of the Court is required under paragraph (1) by reason only of
paragraph (1) (a), then if, either before or after
accepting the money paid into
Court by some only of the defendants sued jointly or in the alternative by him,
the plaintiff discontinues
the action against all other defendants and those
defendants consent in writing to the payment out of that sum, it may be paid out
without an order of the Court.
(3)
Where after the trial or hearing of an action has begun a plaintiff accepts any
money paid into court and all further proceedings
in the action or in respect of
the specified cause or causes of action, as the case may be, to which the
acceptance relates are stayed
by virtue of rule 3(4), then, notwithstanding
anything in paragraph (2), the money shall not be paid out except in pursuance
of an
order of the Court, and the order shall deal with the whole costs of the
action.
Money
remaining in Court (O.22,
r.5)
5. If any money paid into
Court in an action is not accepted in accordance with rule 3, the money
remaining in court shall not be
paid out except in pursuance of an order of the
Court which may be made at any time before, at or after the trial or hearing of
the
action; and where such an order is made before the trial or hearing the
money shall not be paid out except in satisfaction of the
cause or causes of
action in respect of which it was paid
in.
Counterclaim
(O. 22,
r.6)
6. A plaintiff against whom a
counterclaim is made and any other defendant to the counterclaim may pay money
into Court in accordance
with rule 1, and that rule and rules 3 (except
paragraph (5) ),4 and 5 shall apply accordingly with the necessary
modifications.
Non-disclosure
of payment into Court (O.22,
r.7)
7. Except in an action to
which a defence of tender before action is pleaded, and except in an action all
further proceedings in which
are stayed by virtue of rule 3(4) after the trial
or hearing has begun, the fact that money has been paid into Court under the
foregoing
provisions of this Order shall not be pleaded and no communication of
that fact shall be made to the Court at the trial or hearing
of the action or
counterclaim or of any question or issue as to the debt or damages until all
questions of liability and of the amount
of debt or damages have been
decided.
Money
paid into Court under order (O.22,
r.8)
8.-(1) Subject to paragraph
(2) money paid into Court under an order of the Court or a certificate of the
Registrar shall not be paid
out except in pursuance of an order of the
Court.
(2) Unless the Court
otherwise orders, a party who has paid money into Court in pursuance of an order
made under Order 14-
(a) may by notice to the other party appropriate the whole or any part of the money and any additional payment, if necessary, to any particular claim made in the writ or counterclaim, as the case may be, and specified in the notice, or
(b) if he pleads a tender, may by his pleading appropriate the whole or any part of the money as payment into Court of the money alleged to have been tendered;
and
money appropriated in accordance with this rule shall be deemed to be money paid
into Court in accordance with rule 1 or money
paid into Court with a plea of
tender, as the case may be, and this Order shall apply
accordingly.
To
whom payment to be made (O.22,
r.9)
9. Payment out of money in
Court shall be made to the person entitled or, on his written authority, to his
solicitor, or, if the Court
so orders, to his solicitor without such
authority.
Payment
out: small intestate estates (O.22,
r.10)
10. Where a person entitled
to a fund in Court, or a share of such fund, dies intestate and the Court is
satisfied that no grant of
administration of his estate has been made and that
the assets of his estate do not exceed $2,000 in value, including the value of
the fund or share, it may order that the fund or share shall be paid to the
person who, being a widower, widow, child, father, mother,
brother or sister of
the deceased, would have the prior right to a grant of administration of the
estate of the
deceased.
Mode
in which money in Court to be dealt with
(O.22, r.11)
11. Money to be paid
into Court shall be paid to the Registrar who shall pay it into his official
banking account.
O.23
ORDER 23
SECURITY FOR COSTS
Security
for costs of action, etc. (O.23,
r.1)
1.-(1) Where, on the
application of a defendant to an action or other proceeding in the High Court,
it appears to the Court-
(a) that the plaintiff is ordinarily resident out of the jurisdiction, or
(b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so, or
(c) subject to paragraph (2), that the plaintiff’s address is not stated in the writ or other originating process or is incorrectly stated therein, or
(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation,
then
if, having regard to all the circumstances of the case, the Court thinks it just
to do so, it may order the plaintiff to give
such security for the
defendant’s costs of the action or other proceeding as it thinks
just.
(2) The court shall not
require a plaintiff to give security by reason only of paragraph (1)(c) if he
satisfies the Court that the
failure to state his address or the mis-statement
thereof was made innocently and without intention to
deceive.
(3) The references in the
foregoing paragraphs to a plaintiff and a defendant shall be construed as
references to the person (howsoever
described on the record) who is in the
position of plaintiff or defendant, as the case may be, in the proceeding in
question, including
a proceeding on a
counterclaim.
Manner
of giving security (O.23,
r.2)
2. Where an order, is made
requiring any party to give security for costs, the security shall be given in
such manner, at such time,
and on such terms (if any), as the Court may
direct.
Saving
for enactments (O.23,
r.3)
3. This Order is without
prejudice to the provisions of any enactment which empowers the Court to require
security to be given for
the costs of any
proceedings.
The
State may not be ordered to give security
(O.23, r.4)
4. For the avoidance of
doubt it is hereby declared that an order to give security for costs may not be
made against the State in
any proceedings.
O.24
ORDER 24
DISCOVERY AND INSPECTION OF DOCUMENTS
Mutual
discovery of documents (O.24,
r.1)
1.-(1) After the close of
pleadings in an action begun by writ there shall, subject to and in accordance
with the provisions of this
Order, be discovery by the parties to the action of
the documents which are or have been in their possession, custody or power
relating
to matters in question in the
action.
(2) Nothing in this Order
shall betaken as preventing the parties to an action agreeing to dispense with
or limit the discovery of
documents which they would otherwise be required to
make to each
other.
Discovery
by parties without order (O.24,
r.2)
2.-(1) Subject to the
provisions of this rule and of rule 4, the parties to an action between whom
pleadings are closed must make
discovery by exchanging lists of documents and,
accordingly, each party must, within 14 days after the pleadings in the action
are
deemed to be closed as between him and any other party, make and serve on
that other party a list of the documents which are or have
been in his
possession, custody or power relating to any matter in question between them in
the action. Without prejudice to any
directions given by the Court under Order
16, rule 4, this paragraph shall not apply in third party proceedings, including
proceedings
under that Order involving fourth or subsequent
parties.
(2) Unless the Court
otherwise orders, a defendant to an action arising out of an accident on land
due to a collision or apprehended
collision involving a vehicle shall not make
discovery of any documents to the plaintiff under paragraph
(1).
(3) Paragraph (1) shall not be
taken as requiring a defendant to an action for the recovery of any penalty
recoverable by virtue of
any enactment to make discovery of any
documents.
(4) Paragraphs (2) and
(3) shall apply in relation to a counterclaim as they apply in relation to an
action but with the substitution,
for the reference in paragraph (2) to the
plaintiff, of a reference to the party making the
counterclaim.
(5) On the
application of any party required by this rule to make discovery of documents,
the Court may-
(a) order that the parties to the action or any of them shall make discovery under paragraph (1) of such documents or classes of documents only, or as to such only of the matters in question, as may be specified in the order; or
(b) if satisfied that discovery by all or any of the parties is not necessary, or not necessary at the stage of the action, order that there shall be no discovery of documents by any or all of the parties either at all or at that stage;
and
the Court shall make such an order if and so far as it is of opinion that
discovery is not necessary either for disposing fairly
of the action or for
saving costs.
(6) An application
for an order under paragraph (5) must be by summons, and the summons must be
taken out before the expiration of
the period within which by virtue of this
rule discovery of documents in the action is required to be
made.
(7) Any party to whom
discovery of documents is required to be made under this rule may, at any time
before the summons for directions
in the action is taken out, serve on the party
required to make such discovery a notice requiring him to make an affidavit
verifying
the list he is required to make under paragraph (1), and the party on
whom such a notice is served must, within 14 days after service
of the notice,
make and file an affidavit in compliance with the notice and serve a copy of the
affidavit on the party by whom the
notice was
served.
Order
for discovery (O.24,
r.3)
3.-(1) Subject to the
provisions of this rule and of rules 4 and 8, the Court may order any party to a
cause or matter (whether begun
by writ, originating summons or otherwise) to
make and serve on any other party a list of the documents which are or have been
in
his possession, custody or power relating to any matter in question in the
cause or matter, and may at the same time or subsequently
also order him to make
and file an affidavit verifying such a list and to serve a copy thereof on the
other party.
(2) Where a party who
is required by rule 2 to make discovery of documents fails to comply with any
provision of that rule, the Court,
on the application of any party to whom the
discovery was required to be made, may make an order against the first-mentioned
party
under paragraph (1) of this rule or, as the case may be, may order him to
make and file an affidavit verifying the list of documents
he is required to
make under rule 2 and to serve a copy thereof on the
applicant.
(3) An order under this
rule may be limited to such documents or classes of document only, or to such
only of the matters in question
in the cause or matter, as may be specified in
the order.
Order
for determination of issue, etc., before
discovery (O.24,
r.4)
4.-(1) Where on an application
for an order under rule 2 or 3 it appears to the Court that any issue or
question in the cause or matter
should be determined before any discovery of
documents is made by the parties, the Court may order that that issue or
question be
determined first.
(2)
Where in an action begun by writ an order is made under this rule for the
determination of an issue or question, Order 25, rules
2 to 7, shall, with the
omission of so much of rule 7(1) as requires parties to serve a notice
specifying the orders and directions
which they desire and with any other
necessary modifications, apply as if the application on which the order was made
were a summons
for
directions.
Form
of list and affidavit (O.24,
r.5)
5.-(1) A list of documents
made in compliance with rule 2 or with an order under rule 3 must be in Form No.
13 in Appendix A, and
must enumerate the documents in a convenient order and as
shortly as possible but describing each of them or, in the case of bundles
of
documents of the same nature, each bundle, sufficiently to enable it to be
identified.
(2) If it is desired to
claim that any documents are privileged from production, the claim must be made
in the list of documents with
a sufficient statement of the grounds of the
privilege.
(3) An affidavit made as
aforesaid verifying a list of documents must be in Form No. 14 in Appendix
A.
Defendant
entitled to copy of co-defendant’s
list (O.24,
r.6)
6.-(1) A defendant who has
pleaded in an action shall be entitled to have a copy of any list of documents
served under any of the
foregoing rules of this Order on the plaintiff by any
other defendant to the action; and a plaintiff against whom a counterclaim
is
made in an action begun by writ shall be entitled to have a copy of any list of
documents served under any of those rules on the
party making the counterclaim
by any other defendant to the
counterclaim.
(2) A party required
by virtue of paragraph (1) to supply a copy of a list of documents must supply
it free of charge on a request
made by the party entitled to
it.
(3) Where in an action begun by
originating summons the Court makes an order under rule 3 requiring a defendant
to the action to serve
a list of documents on the plaintiff, it may also order
him to supply any other defendant to the action with a copy of that
list.
(4) In this rule "list of
documents" includes an affidavit verifying a list of
documents.
Order
for discovery of particular documents
(O.24, r.7)
7.-(1) Subject to rule
8, the Court may at anytime, on the application of any party to a cause or
matter, make an order requiring
any other party to make an affidavit stating
whether any document specified or described in the application or any class of
document
so specified or described is, or has at any time been, in his
possession, custody or power, and if not then in his possession, custody
or
power, when he parted with it and what has become of
it.
(2) An order may be made
against a party under this rule notwithstanding that he may already have made or
been required to make a
list of documents or affidavit under rule 2 or rule
3.
(3) An application for an order
under this rule must be supported by an affidavit stating the belief of the
deponent that the party
from whom discovery is sought under this rule has, or at
some time had, in his possession, custody or power the document, or class
of
document, specified or described in the application and that it relates to one
or more of the matters in question in the cause
or
matter.
Discovery
to be ordered only if necessary (O.24,
r.8)
8. On the hearing of an
application for an order under rule 3 or 7, the Court, if satisfied that
discovery is not necessary, or not
necessary at that stage of the cause or
matter, may dismiss or, as the case may be, adjourn the application and shall in
any case
refuse to make such an order if and so far as it is of opinion that
discovery is not necessary either for disposing fairly of the
cause or matter or
for saving
costs.
Inspection
of documents referred to in list (O.24, r.
9)
9. A party who has served a list
of documents on any other party, whether in compliance with rule 2 or with an
order under rule 3,
must allow the other party to inspect the documents referred
to in the list (other than any which he objects to produce) and to take
copies
thereof and, accordingly, he must when he serves the list on the other party
also serve on him a notice stating a time within
7 days after the service
thereof at which the said documents may be inspected at a place specified in the
notice.
Inspection
of documents referred to in pleadings and
affidavits (O.24,
r.10)
10.-(1) Any party to a cause
or matter shall be entitled at anytime to serve a notice on any other party in
whose pleadings or affidavits
reference is made to any document requiring him to
produce that document for the inspection of the party giving the notice and to
permit him to take copies
thereof.
(2) The party on whom a
notice is served under paragraph (1) must, within 4 days after service of the
notice, serve on the party giving
the notice a notice stating a time within 7
days after the service thereof at which the documents, or such of them as he
does not
object to produce, may be inspected at a place specified in the notice,
and stating which (if any) of the documents he objects to
produce and on what
grounds.
Order
for production for inspection (O.24,
r.11)
11.-(1) If a party who is
required by rule 9 to serve such a notice as is therein mentioned or who is
served with a notice under rule
10 (1)-
(a) fails to serve a notice under rule 9 or, as the case may be, rule 10(2), or
(b) objects to produce any document for inspection, or
(c) offers inspection at a time or place such that, in the opinion of the Court, it is unreasonable to offer inspection then or, as the case may be, there;
then,
subject to rule l3(1), the Court may, on the application of the party entitled
to inspection, make an order for production of
the documents in question for
inspection at such time and place, and in such manner, as it thinks
fit.
(2) Without prejudice to
paragraph (1), but subject to rule 13(1) the Court may, on the application of
any party to a cause or matter,
order any other party to permit the party
applying to inspect any documents in the possession, custody or power of that
other party
relating to any matter in question in the cause or
matter.
(3) An application for an
order under paragraph (2) must be supported by an affidavit specifying or
describing the documents of which
inspection is sought and stating the belief of
the deponent that they are in the possession, custody or power of the other
party
and that they relate to a matter in question in the cause or
matter.
Order
for production to Court (O.24,
r.12)
12. At any stage of the
proceedings in any cause or matter the Court may, subject to rule 13(1), order
any party to produce to the
Court any document in his possession, custody or
power relating to any matter in question in the cause or matter and the Court
may
deal with the document when produced in such manner as it thinks
fit.
Production
to be ordered only if necessary, etc.
(O.24, r.13)
13.-(1) No order for
the production of any documents for inspection or to the Court shall be made
under any of the foregoing rules
unless the Court is of opinion that the order
is necessary either for disposing fairly of the cause or matter or for saving
costs.
(2) Where on an application
under this Order for production of any document for inspection or to the Court,
privilege from such production
is claimed or objection is made to such
production on any other ground, the Court may inspect the document for the
purpose of deciding
whether the claim or objection is
valid.
Production
of business books (O.24,
r.14)
14.-(1) Where production of
any business books for inspection is applied for under any of the foregoing
rules, the Court may, instead
of ordering production of the original books for
inspection, order a copy of any entries therein to be supplied and verified by
an
affidavit of some person who has examined the copy with the original
books.
(2) Any such affidavit shall
state whether or not there are in the original book any and what erasures,
interlineations or alterations.
(3) Notwithstanding that a copy of
any entries in any book has been supplied under this rule, the Court may order
production of the
book from which the copy was
made.
Document
disclosure of which would be injurious to public interest:
saving (O.24,
r.15)
15. The foregoing provisions
of this Order shall be without prejudice to any rule of law which authorises or
requires the withholding
of any document on the ground that the disclosure of it
would be injurious to the public
interest.
Failure
to comply with requirement for discovery,
etc. (O.24,
r.16)
16.-(1) If any party who is
required by any of the foregoing rules, or by any order made thereunder, to make
discovery of documents
or to produce any documents for the purpose of inspection
or any other purpose, fails to comply with any provision of that rule or
with
that order, as the case may be, then, without prejudice, in the case of a
failure to comply with any such provision, to rules
3(2) and
11(1),-
(a) that party shall not be entitled subsequently to produce a document in respect of which default was made without the leave of the Court, and
(b) the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.
(2)
If any party against whom an order for discovery or production of documents is
made fails to comply with it, then, without prejudice
to paragraph (1), he shall
be liable to committal.
(3) Service
on a party’s barrister and solicitor of an order for discovery or
production of documents made against that party
shall be sufficient service to
found an application for committal of the party disobeying the order, but the
party may show in answer
to the application that he had no notice or knowledge
of the order.
(4) A barrister and
solicitor on whom such an order made against his client is served and who fails
without reasonable excuse to give
notice thereof to his client shall be liable
to
committal.
Revocation
and variation of orders (O.24,
r.17)
17. Any order made under this
Order (including an order made on appeal) may, on sufficient cause being shown,
be revoked or varied
by a subsequent order or direction of the Court made or
given at or before the trial of the cause or matter in connection with which
the
original order was made.
O.25
ORDER 25
SUMMONS FOR DIRECTIONS
Summons
for directions (O.25,
r.1)
1.-(1) With a view to
providing, in every action to which this rule applies, an occasion for the
consideration by the Court of the
preparations for the trial of the action, so
that-
(a) all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with, and
(b) such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof,
the
plaintiff must, within one month after the pleadings in the action are deemed to
be closed, take out a summons (in these Rules
referred to as a summons for
directions) returnable in not less than 14
days.
(2) This rule applies to all
actions begun by writ except-
(a) actions in which the plaintiff or defendant has applied for judgment under Order 14, or in which the plaintiff has applied for judgment under Order 86, and directions have been given under the relevant Order;
(b) actions in which the plaintiff or defendant has applied under Order 18, rule 20, for trial without pleadings or further pleadings and directions have been given under that rule;
(c) actions in which an order has been made under Order 24, rule 4, for the trial of an issue or question before discovery;
(d) actions in which directions have been given under Order 29, rule 7;
(e) actions in which an order for the taking of an account has been made under Order 43, r. 1;
(f) actions for personal injuries for which automatic directions are provided by rule 8.
(3)
Where, in the case of any action in which discovery of documents is required to
be made by any party under Order 24, rule 2, the
period of 14 days referred to
in paragraph (1) of that rule is extended, whether by consent or by order of the
Court or both by consent
and by order, paragraph (1) of this rule shall have
effect in relation to that action as if for the reference therein to one month
after the pleadings in the action are deemed to be closed there were substituted
a reference to 14 days after the expiration of the
period referred to in
paragraph (1) of the said rule 2 as so
extended.
(4) If the plaintiff does
not take out a summons for directions in accordance with the foregoing
provisions of this rule, the defendant
or any defendant may do so or apply for
an order to dismiss the action.
(5)
On an application by a defendant to dismiss the action under paragraph (4) the
Court may either dismiss the action on such terms
as may be just or deal with
the application as if it were a summons for
directions.
(6) In the case of an
action which is proceeding only as respects a counterclaim, references in this
rule to the plaintiff and defendant
shall be construed respectively as
references to the party making the counter-claim and the defendant to the
counterclaim.
(7) Notwithstanding
anything in paragraph (1), any party to an action to which this rule applies may
take out a summons for directions
at any time after the defendant has given
notice of intention to defend, or, if there are two or more defendants, at least
one of
them has given such
notice.
Duty to
consider all matters (O.25,
r.2)
2.-(1) When the summons for
directions first comes to be heard, the Court shall consider
whether-
(a) it is possible to deal then with all the matters which, by the subsequent rules of this Order, are required to be considered on the hearing of the summons for directions, or
(b) it is expedient to adjourn the consideration of all or any of those matters until a later stage.
(2)
If when the summons for directions first comes to be heard the Court considers
that it is possible to deal then with all the said
matters, it shall deal with
them forthwith and shall endeavour to secure that all other matters which must
or can be dealt with on
interlocutory applications and have not already been
dealt with are also then dealt
with.
(3) If, when the summons for
directions first comes to be heard, the Court considers that it is expedient to
adjourn the consideration
of all or any of the matters which, by the subsequent
rules of this Order, are required to be considered on the hearing of the
summons,
the Court shall deal forthwith with such of those matters as it
considers can conveniently be dealt with forthwith and adjourn the
consideration
of the remaining matters and shall endeavour to secure that all other matters
which must or can be dealt with on interlocutory
applications and have not
already been dealt with are dealt with either then or at a resumed hearing of
the summons for directions.
(4)
Subject to paragraph (5), and except where the parties agree to the making of an
order under Order 33 as to the place or mode
of trial before all the matters
which, by the subsequent rules of this Order, are required to be considered on
the hearing of the
summons for directions have been dealt with, no such order
shall be made until all those matters have been dealt
with.
(5) If, on the summons for
directions, an action is ordered to be transferred to a Magistrate's court or
some other court or tribunal
paragraph (4) shall not apply and nothing in this
Order shall be construed as requiring the Court to make any further order on the
summons.
(6) If the hearing of the
summons for directions is adjourned without a day being fixed for the resumed
hearing thereof, any party
may restore it to the list on 2 days’ notice to
the other
parties.
Particular
matters for consideration (O.25,
r.3)
3. On the hearing of the
summons for directions the Court shall in particular consider, if necessary of
its own motion, whether for
the purpose of saving costs any order should be made
or direction given in the exercise of the powers conferred by any of the
following
provisions, that is to say-
(a) section 3(2) of the Evidence Act (which enables the Court to order the admission in evidence of statements in documents notwithstanding that the makers of the statements are not called as witnesses and notwithstanding that the original document is not produced);
(b) Order 20, rule 5 and Order 38, rules 2 to 7.
Admissions
and agreements to be made (O.25;
r.4)
4. At the hearing of the
summons for directions, the Court shall endeavour to secure that the parties
make all admissions and all
agreements as to the conduct of the proceedings
which ought reasonably to be made by them and may cause the order on the summons
to record any admissions or agreements so made, and (with a view to such special
order, if any, as to costs as may be just being
made at the trial) any refusal
to make any admission or
agreement.
Limitation
of right of appeal (O.25,
r.5)
5. Nothing in rule 4 shall be
construed as requiring the Court to endeavour to secure that the parties shall
agree to exclude or limit
any right of appeal, but the order made on the summons
for directions may record any such
agreement.
Duty
to give all information at hearing (O.25,
r.6)
6.-(1) Subject to paragraph
(2), no affidavit shall be used on the hearing of the summons for directions
except by the leave or direction
of the Court, but, subject to paragraph (4), it
shall be the duty of the parties to the action and their advisers to give all
such
information and produce all such documents on any hearing of the summons as
the Court may reasonably require for the purposes of
enabling it properly to
deal with the summons.
The Court
may, if it appears proper so to do in the circumstances, authorise any such
information or documents to be given or produced
to the Court without being
disclosed to the other parties but, in the absence of such authority, any
information or document given
or produced under this paragraph shall be given or
produced to all the parties present or represented on the hearing of the summons
as well as to the Court.
(2) No
leave shall be required by virtue of paragraph (1) for the use of an affidavit
by any party on the hearing of the summons for
directions in connection with any
application thereat for any order if, under any of these rules, an application
for such an order
is required to be supported by an
affidavit.
(3) If the Court on any
hearing of the summons for directions requires a party to the action or his
solicitor to give any information
or produce any document and that information
or document is not given or produced, then, subject to paragraph (4), the Court
may-
(a) cause the facts to be recorded in. the order with a view to such special order, if any, as to costs as may be just being made at the trial, or
(b) if it appears to the Court to be just so to do, order the whole or any part of the pleadings of the party concerned to be struck out, or, if the party is plaintiff or the claimant under a counterclaim, order the action or counterclaim to be dismissed on such terms as may be just.
(4)
Notwithstanding anything in the foregoing provisions of this rule, no
information or documents which are privileged from disclosure
shall be required
to be given or produced under this rule by or by the advisers of any party
otherwise than with the consent of that
party.
Duty to
make all interlocutory applications on summons for directions
(O.25,
r.7)
7.-(1) Any party to whom the
summons for directions is addressed must so far as practicable apply at the
hearing of the summons for
any order or directions which he may desire as to any
matter capable of being dealt with on an interlocutory application in the action
and must not less than 7 days before the hearing of the summons, serve on the
other parties a notice specifying those orders and
directions in so far as they
differ from the orders and directions asked for by the
summons.
(2) If the hearing of the
summons for directions is adjourned and any party to the proceedings desires to
apply at the resumed hearing
for any order or directions not asked for by the
summons or in any notice given under paragraph (1), he must, not less than 7
days
before the resumed hearing of the summons, serve on the other parties a
notice specifying those orders and directions in so far as
they differ from the
orders and directions asked for by the summons or in any such notice as
aforesaid.
(3) Any application
subsequent to the summons for directions and before judgment as to any matter
capable of being dealt with on an
interlocutory application in the action must
be made under the summons by 2 clear days’ notice to the other party
stating the
grounds of the
application.
Automatic
directions in personal injury actions
(O.25, r.8)
8.-(1) When the
pleadings in any action to which this rule applies are deemed to be closed the
following directions shall take effect
automatically:
(a) there shall be discovery of documents within 14 days in accordance with Order 24, rule 2, and inspection within seven days thereafter, save that where liability is admitted, or where the action arises out of a road accident, discovery shall be limited to disclosure by the plaintiff of any documents relating to special damages;
(b) subject to paragraph (2), where any party intends to place reliance at the trial on expert evidence, he shall, within l0 weeks, disclose the substance of that evidence to the other parties in the form of a written report, which shall be agreed if possible;
(c) unless such reports are agreed, the parties shall be at liberty to call as expert witnesses those witnesses the substance of whose evidence has been disclosed in accordance with the preceding sub-paragraph, except that the number of expert witnesses shall be limited in any case to two medical experts and one expert of any other kind;
(d) photographs, a sketch plan and the contents of any police accident report book shall be receivable in evidence at the trial, and shall be agreed if possible.
(2)
Where paragraph 1(b) applies to more than one party the reports shall be
disclosed by mutual exchange, medical for medical and
non-medical for
non-medical, within the time provided or as soon thereafter as the reports on
each side are available.
(3)
Nothing in paragraph (1) shall prevent any party to an action to which this rule
applies from applying to the Court for such further
or different directions or
orders as may, in the circumstances, be
appropriate.
(4) For the purposes
of this rule-
"a road accident" means an accident on land due to a collision or apprehended collision involving a vehicle; and "documents relating to special damages" include documents relating to any industrial injury, industrial disablement or sickness benefit rights.
(5)
This rule applies to any action for personal injuries except any action where
the pleadings contain an allegation of a negligent
act or omission in the course
of medical treatment.
O.26
ORDER 26
INTERROGATORIES
Discovery
by interrogatories (O.26,
r.1)
1.-(1) A party to any cause or
matter may apply to the Court for an order-
(a) giving him leave to serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter, and
(b) requiring that other party to answer the interrogatories on affidavit within such period as may be specified in the order.
(2)
A copy of the proposed interrogatories must be served with the summons, or the
notice under Order 25, rule 7, by which the application
for such leave is
made.
(3) On the hearing of an
application under this rule, the Court shall give leave as to such only of the
interrogatories as it considers
necessary either for disposing fairly of the
cause or matter or for saving costs; and in deciding whether to give leave the
Court
shall take into account any offer made by the party to be interrogated to
give particulars or to make admissions or to produce documents
relating to any
matter in question.
(4) A proposed
interrogatory which does not relate to such a matter as is mentioned in
paragraph (1) shall be disallowed notwithstanding
that it might be admissible in
oral cross-examination of a
witness.
Interrogatories
where party is a body of persons (O.26,
r.2)
2. Where a party to a cause or
matter is a body of persons, whether corporate or unincorporate, being a body
which is empowered by
law to sue or be sued whether in its own name or in the
name of an officer or other person, the Court may, on the application of
any
other party, make an order allowing him to serve interrogatories on such officer
or member of the body as may be specified in
the
order.
Statement
as to party, etc., required to answer
(O.26, r.3)
3. Where
interrogatories are to be served on two or more parties or are required to be
answered by an agent or servant of a party,
a note at the end of the
interrogatories shall state which of the interrogatories each party or, as the
case maybe, an agent or servant
is required to answer, and which agent or
servant.
Objection
to answer on ground of privilege (O.26,
r.4)
4. Where a person objects to
answering any interrogatory on the ground of privilege he may take the objection
in his affidavit in
answer.
Insufficient
answer (O.26,
r.5)
5. If any person on whom
interrogatories have been served answers any of them insufficiently, the Court
may make an order requiring
him to make a further answer, and either by
affidavit or on oral examination as the Court may
direct.
Failure
to comply with order (O.26,
r.6)
6.-(1) If a party against whom
an order is made under rule 1 or 5 fails to comply with it, the Court may make
such order as it thinks
just including, in particular, an order that the action
be dismissed or, as the case may be, an order that the defence be struck
out and
judgment be entered
accordingly.
(2) If a party against
whom an order is made under rule 1 or 5 fails to comply with it, then, without
prejudice to paragraph (1),
he shall be liable to
committal.
(3) Service on a
party’s solicitor of an order to answer interrogatories made against the
party shall be sufficient service
to found an application for committal of the
party disobeying the order, but the party may show in answer to the application
that
he had no notice or knowledge of the
order.
(4) A solicitor on whom an
order to answer interrogatories made against his client is served and who fails
without reasonable excuse
to give notice thereof to his client shall be liable
to
committal.
Use
of answers to interrogatories at trial
(O.26, r.7)
7. A party may put in
evidence at the trial of a cause or matter, or of any issue therein, some only
of the answers to interrogatories,
or part only of such an answer, without
putting in evidence the other answers or, as the case may be, the whole of that
answer, but
the Court may look at the whole of the answers and if of opinion
that any other answer or other part of an answer is so connected
with an answer
or part thereof used in evidence that the one ought not to be so used without
the other, the Court may direct that
that other answer or part shall be put in
evidence.
Revocation
and variation of orders (O.26,
r.8)
8. Any order made under this
Order (including an order made on appeal) may, on sufficient cause being shown,
be revoked or varied
by a subsequent order or direction of the Court made or
given at or before the trial of the cause or matter in connection with which
the
original order was made.
O.27
ORDER 27
ADMISSIONS
Admission
of case of other party (O.27,
r.1)
1. Without prejudice to Order
18, rule 13, a 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.
Notice to
admit (O.27,
r.2)
2.-(1) A party to a cause or
matter may not later than 21 days after the cause or matter is set down for
trial serve on any other
party a notice requiring him to admit, for the purpose
of that cause or matter only, such facts or such part of his case as may be
specified in the notice.
(2) An
admission made in compliance with a notice under this rule shall not be used
against the party by whom it was made in any cause
or matter other than the
cause or matter for the purpose of which it was made or in favour of any person
other than the person by
whom the notice was given, and the Court may at any
time allow a party to amend or withdraw an admission so made by him on such
terms
as may be
just.
Judgment
on admissions (O.27,
r.3)
3. Where admissions of fact or
of part of a case are made by a party to a cause or matter either by his
pleadings or otherwise, any
other party to the cause or matter may apply to the
Court for such judgment or order as upon those admissions he may be entitled
to,
without waiting for the determination of any other question between the parties
and the Court may give such judgment or make
such order on the application as it
thinks
just.
Admission
and production of documents specified in list of
documents (O.27,
r.4)
4.-(1) Subject to paragraph
(2) and without prejudice to the right of a party to object to the admission in
evidence of any document,
a party on whom a list of documents is served in
pursuance of any provision of Order 24 shall, unless the Court otherwise orders,
be deemed to admit-
(a) that any document described in the list as an original document is such a document and was printed, written, signed or executed as it purports respectively to have been, and
(b) that any document described therein as a copy is a true copy. This paragraph does not apply to a document the authenticity of which the party has denied in his pleading.
(2)
If before the expiration of 21 days after inspection of the documents specified
in a list of documents or after the time limited
for inspection of those
documents expires, whichever is the later, the party on whom the list is served
serves on the party whose
list it is a notice stating, in relation to any
document specified therein, that he does not admit the authenticity of that
document
and requires it to be proved at the trial, he shall not be deemed to
make any admission in relation to that document under paragraph
(1).
(3) A party to a cause or
matter by whom a list of documents is served on any other party in pursuance of
any provision of Order 24
shall be deemed to have been served by that other
party with a notice requiring him to produce at the trial of the cause or matter
such of the documents specified in the list as are in his possession, custody or
power.
(4) The foregoing provisions
of this rule apply in relation to an affidavit made in compliance with an order
under Order 24, rule
7, as they apply in relation to a list of documents served
in pursuance of any provision of that
Order.
Notices
to admit or produce documents (O.27,
r.5)
5.-(1) Except where rule 4(1)
applies, a party to a cause or matter may within 21 days after the cause or
matter is set down for trial
serve on any other party a notice requiring him to
admit the authenticity of the documents specified in the
notice.
(2) If a party on whom a
notice under paragraph (1) is served desires to challenge the authenticity of
any document therein specified
he must, within 21 days after service of the
notice, serve on the party by whom it was given a notice stating that he does
not admit
the authenticity of the document and requires it to be proved at the
trial.
(3) A party who fails to
give a notice of non-admission in accordance with paragraph (2) in relation to
any document shall be deemed
to have admitted the authenticity of that document
unless the Court otherwise
orders.
(4) Except where rule 4(3)
applies, a party to a cause or matter may serve on any other party a notice
requiring him to produce the
documents specified in the notice at the trial of
the cause or matter.
O.28
ORDER 28
ORIGINATING SUMMONS PROCEDURE
Application
(O.28,
r.1)
1. The provisions of this
Order apply to all originating summonses subject, in the case of originating
summonses of any particular
class, to any special provisions relating to
originating summonses of that class made by these rules or by or under any Act;
and,
subject as aforesaid, Order 32, rule 5, shall apply in relation to
originating summonses as it applies in relation to other
summonses.
Affidavit
evidence (O.28,
r.2)
2.-(1) In any cause or matter
begun by originating summons (not being an ex
parte
summons) the plaintiff must, before the expiration of 14 days after the
defendant has acknowledged service, or, if there are two
or more defendants, at
least one of them has acknowledged service, file with the Registry the affidavit
evidence on which he intends
to
rely.
(2) In the case of an ex
parte
summons the applicant must file his affidavit evidence not less than 4 clear
days before the day fixed for the
hearing.
(3) Copies of the
affidavit evidence filed in court under paragraph (1) must be served by the
plaintiff on the defendant, or, if there
are two or more defendants, on each
defendant, before the expiration of 14 days after service has been acknowledged
by that defendant.
(4) Where a
defendant who has acknowledged service wishes to adduce affidavit evidence he
must within 28 days after service on him
of copies of the plaintiffs affidavit
evidence under paragraph (3) file his own affidavit evidence with the Registry
and serve copies
thereof on the plaintiff and on any other defendant who is
affected thereby.
(5) A plaintiff
on whom a copy of a defendant's affidavit evidence has been served under
paragraph (4) may within 14 days of such
service file with the Registry further
affidavit evidence in reply and shall in that event serve copies thereof on that
defendant.
(6) No other affidavit
shall be received in evidence without the leave of the
Court.
(7) Where an affidavit is
required to be served by one party on another party it shall be served without
prior charge.
(8) The provisions of
this rule apply subject to any direction by the Court to the
contrary.
(9) In this rule
references to affidavits and copies of affidavits include references to exhibits
to affidavits and copies of such
exhibits.
Fixing
time for attendance of parties before
Court (O.28,
r.3)
3.-(1) In the case of an
originating summons which is in Form No. 3 in Appendix A the plaintiff must,
within one month of the expiry
of the time within which copies of affidavit
evidence may be served under rule 2, obtain an appointment for the attendance of
the
parties before the Court for the hearing of the summons, and a day and time
for their attendance shall be fixed by a notice (in Form
No. 15 in Appendix A)
sealed with the seal of the
Court.
(2) A day and time for the
attendance of the parties before the Court for the hearing of an originating
summons which is in Form No.
14 in Appendix A, or for the hearing of an ex
parte
originating summons, may be fixed on the application of the plaintiff or
applicant, as the case may be and, in the case of a summons
which is required to
be served, the time limited for acknowledging service shall, where appropriate,
be abridged so as to expire
on the next day but one before the day so fixed, and
the time limits for lodging affidavits under rule 2(2) and (3) shall, where
appropriate, be abridged so as to expire, respectively, on the fifth day before,
and the next day but one before, the day so
fixed.
(3) Where a plaintiff fails
to apply for an appointment under paragraph (1), any defendant may, with the
leave of the Court, obtain
an appointment in accordance with that paragraph
provided that he has acknowledged service of the originating
summons.
Notice
of hearing (O.28,
r.4)
4.-(1) Not less than 4 clear
days before the day fixed under rule 3 for the attendance of the parties before
the Court for the hearing
of an originating summons which is in Form No. 3 in
Appendix A, the party on whose application the day was fixed must serve a copy
of the notice fixing it on every other party who has acknowledged service of the
summons and, if the first-mentioned party is a defendant,
on the
plaintiff.
(2) Not less than 4
clear days before the day fixed under rule 3 for the hearing of an originating
summons which is in Form No. 4
in Appendix A, the plaintiff must serve the
summons on every defendant or, if any defendant has already been served with the
summons,
must serve on that defendant notice of the day fixed for
hearing.
Directions,
etc., by Court (O.28,
r.5)
5.-(1) The Court by whom an
originating summons is heard may, if the liability of the defendant to the
plaintiff in respect of any
claim made by the plaintiff is established, make
such order in favour of the plaintiff as the nature of the case may require, but
where the Court makes an order under this paragraph against a defendant who does
not appear at the hearing, the order may be varied
or revoked by a subsequent
order of the Court on such terms as it thinks
just.
(2) In any case where the
Court does not dispose of any originating summons altogether at a hearing, or
order, the cause or matter
begun by it to be transferred to a Magistrate's Court
or some other court or tribunal or make an order under rule 9, the Court shall
give such directions as to the further conduct of the proceedings as it thinks
best adapted to secure the just, expeditious and economical
disposal
thereof.
(3) Without prejudice to
the generality of paragraph (2), the Court shall, at as early a stage of the
proceedings on the summons as
appears to it to be practicable, consider whether
there is or may be a dispute as to fact and whether the just, expeditious and
economical
disposal of the proceedings can accordingly best be secured by
hearing the summons on oral evidence or mainly on oral evidence and,
if it
thinks fit, may order that no further evidence shall be filed and that the
summons shall be heard on oral evidence or partly
on oral evidence and partly on
affidavit evidence, with or without cross-examination of any of the deponents,
as it may direct.
(4) Without
prejudice to the generality of paragraph (2), and subject to paragraph (3), the
Court may give directions as to the filing
of evidence and as to the attendance
of deponents for cross-examination and any directions which it could give under
Order 25 if
the cause or matter had been begun by writ and the summons were a
summons for directions under that
Order.
Adjournment
of summons (O.28,
r.6)
6.-(1) The hearing of the
summons by the Court may (if necessary) be adjourned from time to time, either
generally or to a particular
date, as may be appropriate, and the powers of the
Court under rule 5 may be exercised at any resumed
hearing.
(2) If the hearing of the
summons is adjourned generally, the party on whose application the day for its
hearing was fixed under rule
3 may re-store it to the list on two days’
notice to all the other parties (except, unless the Court otherwise directs, a
defendant
who, in the case of a summons in Form No. 13 in Appendix A, has failed
to acknowledge service of the summons or, in the case of a
summons in Form No.
14 in Appendix A, has not been served with the summons), and any of those
parties may re-store it with the leave
of the
Court.
Applications
affecting party who has not acknowledged
service (O.28,
r.7)
7. Where in a cause or matter
begun by originating summons an application is made to the Court for an order
affecting a party who
has failed to acknowledge service, the Court hearing the
application may require to be satisfied in such manner as it thinks fit
that the
party has so
failed.
Counterclaim
by defendant (O.28,
r.8)
8.-(1) A defendant to an
action begun by originating summons who has acknowledged service of the summons
and who alleges that he has
any claim or is entitled to any relief or remedy
against the plaintiff in respect of any matter (whenever and however arising)
may
make a counter-claim in the action in respect of that matter instead of
bringing a separate action.
(2) A
defendant who wishes to make a counterclaim under this rule must at as early a
stage in the proceedings as is practicable, inform
the Court of the nature of
his claim and, without prejudice to the powers of the Court under paragraph (3),
the claim shall be made
in such manner as the Court may direct under rule 5 or
rule 9.
(3) If it appears on the
application of a plaintiff against whom a counterclaim is made under this rule
that the subject-matter of
the counter-claim ought for any reason to be disposed
of by a separate action, the Court may order the counterclaim to be struck
out
or may order it to be tried separately or make such other order as may be
expedient.
Continuation
of proceedings as if cause or matter begun by
writ (O.28,
r.9)
9.-(1) Where, in the case of a
cause or matter begun by originating summons, it appears to the Court at any
stage of the proceedings
that the proceedings should for any reason be continued
as if the cause or matter had been begun by writ, it may order the proceedings
to continue as if the cause or matter had been so begun and may, in particular,
order that any affidavits shall stand as pleadings,
with or without liberty to
any of the parties to add thereto or to apply for particulars
thereof.
(2) Where the Court
decides to make such an order, Order 25, rules 2 to 7, shall, with the omission
of so much of rule 7(1) as requires
parties to serve a notice specifying the
orders and directions which they require and with any other necessary
modifications, apply
as if there had been a summons for directions in the
proceedings and that order were one of the orders to be made
thereon.
(3) This rule applies
notwithstanding that the cause or matter in question could not have been begun
by writ.
(4) Every reference in
these Rules to an action begun by writ shall, unless the context otherwise
requires, be construed as including
a reference to a cause or matter proceedings
in which are ordered under this rule to continue as if the cause or matter had
been
so
begun.
Order for
hearing or trial (O.28,
r.10)
10. Except where the Court
disposes of a cause or matter begun by originating summons in chambers or orders
it to be transferred to
a Magistrate’s Court or some other court or
tribunal or makes an order in relation to it under rule 9 or some other
provision
of these Rules, the Court shall, on being satisfied that the cause or
matter is ready for determination, make such order as to the
hearing of the
cause or matter as may be
appropriate.
Failure
to prosecute proceedings with despatch
(O.28, r.11)
11.-(1) If the
plaintiff in a cause or matter begun by originating summons makes default in
complying with any order or direction
of the Court as to the conduct of the
proceedings, or if the Court is satisfied that the plaintiff in a cause or
matter so begun
is not prosecuting the proceedings with due despatch, the Court
may order the cause or matter to be dismissed or may make such other
order as
may be just.
(2) Paragraph (1)
shall, with any necessary modifications, apply in relation to a defendant by
whom a counterclaim is made under rule
8 as it applies in relation to a
plaintiff.
(3) Where, by virtue of
an order made under rule 9, proceedings in a cause or matter begun by
originating summons are to continue
as if the cause or matter had been begun by
writ, the foregoing provisions of this rule shall not apply in relation to the
cause
or matter after the making of the
order.
Abatement
etc. of action (O.28,
r.12)
12. Order 34, rule 5, shall
apply in relation to an action begun by originating summons as it applies in
relation to an action begun
by writ.
O.29
ORDER 29
INTERLOCUTORY INJUNCTIONS, INTERIM PRESERVATION OF PROPERTY, INTERIM PAYMENTS, ETC
1.
INTERLOCUTORY
INJUNCTIONS, INTERIM PRESERVATION OF PROPERTY,
ETC
Application
for injunction (O.29,
r.1)
1.-(1) An application for the
grant of an injunction may be made by any party to a cause or matter before or
after the trial of the
cause or matter, whether or not a claim for the
injunction was included in that party’s writ, originating summons,
counterclaim
or third party notice, as the case may
be.
(2) Where the applicant is the
plaintiff and the case is one of urgency such application may be made
ex
parte on affidavit but, except as
aforesaid, such application must be made by motion or
summons.
(3) The plaintiff may not
make such an application before the issue of the writ or originating summons by
which the cause or matter
is to be begun except where the case is one of
urgency, and in that case the injunction applied for may be granted on terms
providing
for the issue of the writ or summons and such other terms, if any, as
the Court thinks
fit.
Detention,
preservation, etc., of subject matter of cause or
matter (O.29,
r.2)
2.-(1) On the application of
any party to a cause or matter the Court may make an order for the detention,
custody or preservation
of any property which is the subject matter of the cause
or matter, or as to which any question may arise therein, or for the inspection
of any such property in the possession of a party to the cause or
matter.
(2) For the purpose of
enabling any order under paragraph (1) to be carried out the Court may by the
order authorise any person to
enter upon any land or building in the possession
of any party to the cause or
matter.
(3) Where the right of any
party to a specific fund is in dispute in a cause or matter, the Court may, on
the application of a party
to the cause or matter, order the fund to be paid
into court or otherwise
secured.
(4) An order under this
rule may be made on such terms, if any, as the Court thinks
just.
(5) An application for an
order under this rule must be made by summons or by notice under Order 25, rule
7.
(6) Unless the Court otherwise
directs, an application by a defendant for such an order may not be made before
he acknowledges service
of the writ or originating summons by which the cause or
matter was
begun.
Power to
order samples to be taken, etc. (O.29,
r.3)
3.-(1) Where it considers it
necessary or expedient for the purpose of obtaining full information or evidence
in any cause or matter,
the Court may, on the application of a party to the
cause or matter, and on such terms, if any, as it thinks just, by order
authorise
or require any sample to be taken of any property which is the
subject-matter of the cause or matter or as to which any question
may arise
therein, any observation to be made on such property or any experiment to be
tried on or with such property.
(2)
For the purpose of enabling any order under paragraph (1) to be carried out the
Court may by the order authorise any person to
enter upon any land or building
in the possession of any party to the cause or
matter.
(3) Rule 2(5) and (6) shall
apply in relation to an application for an order under this rule as they apply
in relation to an application
for an order under that
rule.
Sale of
perishable property, etc. (O.29,
r.4)
4.-(1) The Court may, on the
application of any party to a cause or matter, make an order for the sale by
such person, in such manner
and on such terms (if any) as may be specified in
the order, of any property (other than land) which is the subject-matter of the
cause or matter or as to which any question arises therein and which is of a
perishable nature or likely to deteriorate if kept or
which for any other good
reason it is desirable to sell
forthwith.
In this paragraph "land"
includes any interest in, or right over,
land.
(2) Rule 2 (5) and (6) shall
apply in relation to an application for an order under this rule as they apply
in relation to an application
for an order under that
rule.
Order for
early trial (O.29,
r.5)
5. Where on the hearing of an
application, made before the trial of a cause or matter, for an injunction or
the appointment of a receiver
or an order under rule 2, 3 or 4 it appears to the
Court that the matter in dispute can be better dealt with by an early trial than
by considering the whole merits thereof for the purposes of the application, the
Court may make an order accordingly and may also
make such order as respects the
period before trial as the justice of the case
requires.
Where the Court makes an
order for early trial it shall by the order determine the place and mode of the
trial.
Recovery
of personal property subject to lien, etc.
(O.29, r.6)
6. Where the plaintiff,
or the defendant by way of counterclaim, claims the recovery of specific
property (other than land) and the
party from whom recovery is sought does not
dispute the title of the party making the claim but claims to be entitled to
retain the
property by virtue of a lien or otherwise as security for any sum of
money, the Court, at any time after the claim to be so entitled
appears from the
pleadings (if any) or by affidavit or otherwise to its satisfaction, may order
that the party seeking to recover
the property be at liberty to pay into court,
to abide the event of the action, the amount of money in respect of which the
security
is claimed and such further sum (if any) for interest and costs as the
Court may direct and that, upon such payment being made, the
property claimed be
given up to the party claiming
it.
Directions
(O.29,
r.7)
7.-(1) Where an application is
made under any of the foregoing provisions of this Order, the Court may give
directions as to the further
proceedings in the cause or
matter.
(2) If, in an action begun
by writ, not being any such action as is mentioned in sub-paragraphs (a) to (c)
and (e) to (h) of Order
25, rule 1(2), the Court thinks fit to give directions
under this rule before the summons for directions, rules 2 to 7 of that Order
shall, with the omission of so much of rule 7 (1) as requires parties to serve a
notice specifying the orders and directions which
they desire and with any other
necessary modifications, apply as if the application were a summons for
directions.
Allowance
of income of property pendente lite (O.29,
r.8)
8. Where any real or personal
property forms the subject-matter of any proceedings, and the Court is satisfied
that it will be more
than sufficient to answer all the claims thereon for which
provision ought to be made in the proceedings, the Court may at any time
allow
the whole or part of the income of the property to be paid, during such period
as it may direct, to any or all of the parties
who have an interest therein or
may direct that any part of the personal property be transferred or delivered to
any or all of such
parties.
II. INTERIM PAYMENTS
Interpretation
of Part II (O.29, r.9)
9. In this Part of this
Order-
"interim payments", in relation to a defendant, means a payment on account of any damages, debt or other sum (excluding costs) which he may be held liable to pay to or for the benefit of the plaintiff; and any person who, for the purpose of the proceedings, acts as next friend of the plaintiff or guardian of the defendant.
Application
for interim payment (O.29,
r.10)
10.-(1) The plaintiff may, at
any time after the writ has been served on a defendant and the time limited for
him to acknowledge service
has expired, apply to the Court for an order
requiring that defendant to make an interim
payment.
(2) An application under
this rule shall be made by summons but may be included in a summons for summary
judgment under Order 14 or
Order
86.
(3) An application under this
rule shall be supported by an affidavit which shall-
(a) verify the amount of the damages, debtor other sum to which the application relates and the grounds of the application;
(b) exhibit any documentary evidence relied on by the plaintiff in support of the application.
(4)
The summons and a copy of the affidavit in support and any documents exhibited
thereto shall be served on the defendant against
whom the order is sought not
less than 10 clear days before the return
day.
(5) Notwithstanding the making
or refusal of an order for an interim payment, a second or subsequent
application may be made upon
cause
shown.
Order for
interim payment in respect of damages
(O.29, r.11)
11.-(1) If, on the
hearing of an application under rule 10 in an action for damages, the Court is
satisfied-
(a) that the defendant against whom the order is sought (in this paragraph referred to as "the respondent") has admitted liability for the plaintiff’s damages; or
(b) that the plaintiff has obtained judgment against the respondent for damages to be assessed; or
(c) that if the action proceeded to trial, the plaintiff would obtain judgment for substantial damages against the respondent or, where there are two or more defendants, against any of them, the Court may, if it thinks fit and subject to paragraph (2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set-off, cross-claim or counterclaim on which the respondent may be entitled to rely.
(2)
No order shall be made under paragraph (1) in an action for personal injuries if
it appears to the Court that the defendant is
not a person falling within one of
the following categories, namely-
(a) a person who is insured in respect of the plaintiffs claim;
(b) a public authority; or
(c) a person whose means and resources are such as to enable him to make the interim payment.
Order
for interim payment in respect of sums other than
damages (O.29,
r.12)
12. If, on the hearing of an
application under rule 10, the Court is satisfied-
(a) that the plaintiff has obtained an order for an account to be taken as between himself and the defendant and for any amount certified due on taking the account to be paid; or
(b) that the plaintiff’s action includes a claim for possession of land and, if the action proceeded to trial, the defendant would be held liable to pay to the plaintiff a sum of money in respect of the defendant's use and occupation of the land during the pendency of the action, even if a final judgment or order were given or made in favour of the defendant; or
(c) that if the action proceeded to trial the plaintiff would obtain judgment against the defendant for a substantial sum of money apart from any damages or costs,
the
Court may, if it thinks fit, and without prejudice to any contentions of the
parties as to the nature or character of the sum
to be paid by the defendant,
order the defendant to make an interim payment of such amount as it thinks just,
after taking into account
any set-off, cross-claim or counterclaim on which the
defendant may be entitled to
rely.
Manner of
payment (O.29,
r.13)
13.-(1) Subject to Order 80,
rule 12, the amount of any interim payment ordered to be made shall be paid to
the plaintiff unless the
order provides for it to be paid into court, and where
the amount is paid into court, the court may, on the application of the
plaintiff,
order the whole or any part of it to be paid out to him at such time
or times as the Court thinks
fit.
(2) An application under the
preceding paragraph for money in Court to be paid out may be made
ex
parte, but the Court may direct a summons
to be issued.
(3) An interim
payment may be ordered to be made in one sum or by such instalments as the Court
thinks fit.
(4) Where a payment is
ordered in respect of the defendant’s use and occupation of land the order
may provide for periodical
payments to be made during the pendency of the
action.
Directions
on application under rule 10 (O.29,
r.14)
14. Where an application is
made under rule 10, the Court may give directions as to the further conduct of
the action, and, so far
as may be applicable, Order 25, rules 2 to 7, shall,
with the omission of so much of rule 7 (1) as requires the parties to serve
a
notice specifying the orders and directions which they require and with any
other necessary modifications, apply as if the application
were a summons for
directions, and, in particular, the Court may order an early trial of the
action.
Non-disclosure
of interim payment (O.29,
r.15)
15. The fact that an order
has been made under rule 11 or 12 shall not be pleaded and, unless the defendant
consents or the Court
so directs, no communication of that fact or of the fact
that an interim payment has been made, whether voluntarily or pursuant to
an
order, shall be made to the Court at the trial, or hearing, of any question or
issue as to liability or damages until all questions
of liability and amount
have been
determined.
Payment
into court in satisfaction (O.29,
r.16)
16. Where, after making an
interim payment, whether voluntary or pursuant to an order, a defendant pays a
sum of money into Court
under Order 22, rule 1, the notice of payment must state
that the defendant has taken into account the interim
payment.
Adjustment
on final judgment or order or on
discontinuance (O.29,
r.17)
17. Where a defendant has
been ordered to make an interim payment or has in fact made an interim payment,
whether voluntarily or pursuant
to an order, the Court may, in giving or making
a final judgment or order, or granting the plaintiff leave to discontinue his
action
or to withdraw the claim in respect of which the interim payment has been
made, or at any other stage of the proceedings on the application
of any party,
make such order with respect to the interim payment as may be just, and in
particular-
(a) an order for the repayment by the plaintiff of all or part of the interim payment, or
(b) an order for the payment to be varied or discharged, or
(c) an order for the payment by any other defendant of any part of the interim payment which the defendant who made it is entitled to recover from him by way of contribution or indemnity or in respect of any remedy or relief relating to or connected with the plaintiff’s claim.
Counterclaims
and other proceedings (O.29,
r.18)
18. The preceding rules in
this Part of this Order shall apply, with the necessary modifications, to any
counterclaim or proceeding
commenced otherwise than by writ, where one party
seeks an order for an interim payment to be made by another.
O.30
ORDER 30
RECEIVERS
Application
for receiver and injunction (O.30,
r.1)
1.-(1) An application for the
appointment of a receiver may be made by summons or
motion.
(2) An application for an
injunction ancillary or incidental to an order appointing a receiver may be
joined with the application
for such
order.
(3) Where the applicant
wishes to apply for the immediate grant of such an injunction, he may do so
ex
parte on
affidavit.
(4) The Court hearing an
application under paragraph (3) may grant an injunction restraining the party
beneficially entitled to any
interest in the property of which a receiver is
sought from assigning, charging or otherwise dealing with that property until
after
the hearing of a summons for the appointment of the receiver and may
require such a summons returnable on such date as the Court
may direct, to be
issued.
Giving
of security by receiver (O.30,
r.2)
2.-(1) A judgment or order
directing the appointment of a receiver may include such directions as the Court
thinks fit for the giving
of security by the person
appointed.
(2) Where by virtue of
any judgment or order appointing a person named therein to be receiver a person
is required to give security
in accordance with this rule, he must give security
approved by the Court duly to account for what he receives as receiver and to
deal with it as the Court
directs.
(3) Unless the Court
otherwise directs, the security shall be by
guarantee.
(4) The guarantee must
be filed in the Registry and it shall be kept there as of record until duly
vacated.
Remuneration
of receiver (O.30,
r.3)
3. A person appointed receiver
shall be allowed such proper remuneration, if any, as may be authorised by the
Court, and the Court
may direct that such remuneration shall be fixed by
reference to such scales or rates of professional charges as it thinks
fit.
Service of
order and notice (O.30,
r.4)
4. A copy of the judgment or
order appointing a receiver shall be served by the party having conduct of the
proceedings on the receiver
and all other parties to the cause of matter in
which the receiver has been
appointed.
Receiver’s
Accounts (O.30,
r.5)
5.-(1) A receiver shall submit
such accounts to such parties at such intervals or on such dates as the Court
may direct.
(2) Any party to whom a
receiver is required to submit accounts may, on giving reasonable notice to the
receiver, inspect, either
personally or by an agent, the books and other papers
relating to the accounts.
(3) Any
party who is dissatisfied with the accounts of the receiver may give notice
specifying the item or items to which objection
is taken and requiring the
receiver within not less than 14 days to lodge his accounts with the Court and a
copy of such notice shall
be lodged in the
Registry.
(4) Following an
examination by or on behalf of the Court of an item or items in an account to
which objection is taken the result
of such examination must be certified by the
Registrar, and an order may thereupon be made as to any costs or expenses
incurred.
Payment
into Court by receiver (O.30,
r.6)
6. The Court may fix the
amounts and frequency of payments into court to be made by a
receiver.
Default
by receiver (O.30,
r.7)
7.-(1) Where a receiver fails
to attend for the examination of any account of his, or fails to submit any
account, provide access
to any books or papers or do any other thing which he is
required to submit, provide or do, he and any or all of the parties to the
cause
or matter in which he was appointed maybe required to attend in Chambers to show
cause for the failure, and the Court may,
either in Chambers or after
adjournment into court, give such directions as it thinks proper including, if
necessary, directions
for the discharge of the receiver and the appointment of
another and the payment of
costs.
(2) Without prejudice to
paragraph (1), where a receiver fails to attend for the examination of any
account of his or fails to submit
any account or fails to pay into Court on the
date fixed by the Court any sum required to be so paid, the Court may disallow
any
remuneration claimed by the receiver in any subsequent account and may,
where he has failed to pay any such sum into Court, charge
him with interest, if
any, as may be currently payable in respect of judgment debts in the High
Court.
Directions
to receivers (O.30,
r.8)
8. A receiver may at any time
request the Court to give him directions and such a request shall state in
writing the matters with
regard to which directions are required.
O.31
ORDER 31
SALES, ETC. OF LAND BY ORDER OF COURT
Power to
order sale of land (O.31,
r.1)
1. Where in any cause or
matter relating to any land it appears necessary or expedient for the purposes
of the cause or matter that
the land or any part thereof should be sold, the
Court may order that land or part to be sold, and any party bound by the order
and
in possession of that land or part, or in receipt of the rents and profits
thereof, may be compelled to deliver up such possession
or receipt to the
purchaser or to such other person as the Court may
direct.
In this Order, "land"
includes any interest in, or right over,
land.
Manner of
carrying out sale (O.31,
r.2)
2.-(1) Where an order is made,
whether in court or in chambers, directing any land to be sold, the Court may
permit the party or person
having the conduct of the sale to sell the land in
such manner as he thinks fit, or may direct that the land be sold in such manner
as the Court may direct for the best price that can be obtained, and all proper
parties shall join in the sale and conveyance as
the Court shall
direct.
(2) The Court may give such
directions as it thinks fit for the purpose of effecting the sale, including,
without prejudice to the
generality of the foregoing words,
directions-
(a) appointing the party or person who is to have the conduct of the sale;
(b) fixing the manner of sale, whether by contract conditional on the approval of the Court, private treaty, public auction, tender or some other manner;
(c) fixing a reserve or minimum price;
(d) requiring payment of the purchase money into Court or to trustees or other persons;
(e) for settling the particulars and conditions of sale;
(f) for obtaining evidence of the value of the property;
(g) fixing the security (if any) to be given by the auctioneer, if the sale is to be by public auction, and the remuneration to be allowed him.
Certifying
result of sale (O.31,
r.3)
3.-(1) If either the Court has
directed payment of the purchase money into Court or the Court so directs, the
result of a sale by
order of the Court must be certified-
(a) in the case of a sale by public auction, by the auctioneer who conducted the sale, and
(b) in any other case, by the solicitor of the party or person having the conduct of the sale;
and
the Court may require the certificate to be verified by the affidavit of the
auctioneer or solicitor, as the case may
be.
(2) The solicitor of the party
or person having the conduct of the sale must file the certificate and any
affidavit in the
Registry.
Mortgage,
exchange or partition under order of the
Court (O.31,
r.4)
4. Rules 2 and 3 shall, so far
as applicable and with the necessary modifications, apply in relation to the
mortgage, exchange or
partition of any land under an order of the Court as they
apply in relation to the sale of any land under such an order.
O.32
ORDER 32
APPLICATIONS AND PROCEEDINGS IN CHAMBERS
Mode of
making application (O.32,
r.1)
1. Except as provided by Order
25, rule 7, every application in chambers not made
ex
parte must be made by
summons.
Issue
of summons (O.32,
r.2)
2.-(1) Issue of a summons by
which an application in chambers is to be made takes place on its being sealed
by the Registrar.
(2) A summons may
not be amended after issue without the leave of the
Court.
Service
of summons (O.32,
r.3)
3. A summons asking only for
the extension or abridgment of any period of time may be served on the day
before the day specified in
the summons for the hearing thereof but, except as
aforesaid and unless the Court otherwise orders or any of these Rules otherwise
provides, a summons must be served on every other party not less than two clear
days before the day so
specified.
Adjournment
of hearing (O.32,
r.4)
4. The hearing of a summons
may be adjourned from time to time, either generally or to a restore it to the
list on two clear days’
notice to all the other parties on whom the
summons was
served.
Proceeding
in absence of party failing to attend
(O.32, r.5)
5.-(1) Where any party
to a summons fails to attend on the first or any resumed hearing thereof, the
Court may proceed in his absence
if, having regard to the nature of the
application, it thinks it expedient so to
do.
(2) Before proceeding in the
absence of any party the Court may require to be satisfied that the summons or,
as the case may be, notice
of the time appointed for the resumed hearing was
duly served on that party.
(3)
Where the Court hearing a summons proceeded in the absence of a party, then,
provided that any order made on the hearing has not
been perfected, the Court,
if satisfied that it is just to do so, may re-hear the
summons.
(4) Where an application
made by summons has been dismissed without a hearing by reason of the failure of
the party who took out the
summons to attend the hearing, the Court, if
satisfied that it is just to do so, may allow the summons to be restored to the
list.
Order made
ex parte may be set aside (O.32, r.6)
6. The Court may set aside an
order made ex
parte.
Subpoena
for attendance of witness (O.32,
r.7)
7. A writ of subpoena
ad
testificandum or a writ of subpoena
duces tecum
to compel the attendance of a witness for
the purpose of proceedings in chambers may be issued out of the Registry by or
on the authority
of the
Registrar.
Persons
authorised to administer oaths (O.32,
r.8)
8. The following officers of
the Judicial Department, namely the Registrar, any officer being a Commissioner
for Oaths or a Magistrate,
and any officer specially authorised by the Chief
Justice in that behalf shall have authority to administer oaths and take
affidavits
for the purpose of proceedings in the High
Court.
Jurisdiction
of the Registrar (O.32,
r.9)
9. The Registrar shall,
subject to the directions of the Chief Justice given generally or in respect of
any particular case, have
the powers, authority and jurisdiction of a judge in
chambers with respect to the following matters-
(a) the place, time for setting down for trial, and mode of trial, and other matters usually arising on a summons for directions;
(b) the discovery of documents, and production of documents for inspection; and discovery by interrogatories;
(c) the amendment of a writ, pleading, memorandum of appearance, or other document;
(d) extension or enlargement of time;
(e) renewal of a writ;
(f) addition, omission or substitution of parties;
(g) substituted service within the jurisdiction;
(h) garnishee orders nisi, orders to third persons to attend garnishee proceedings (under Order 49 rule 6), and garnishee orders absolute;
(i) security for costs;
(j) leave to enter judgment for costs under Order 13 rule 6(2);
(k) judgment under Order 14;
(l) leave to defend, under Order 14, absolute or conditional and consequential directions;
(m) leave to withdraw summons, under Order 21, rule 6;
(n) judgment or order on an admission, or on a summons under Order 27 rule 3, for a sum of money only.
Reference
of matter to judge (O.32,
r.10)
10. The Registrar may refer
to a judge any matter which he thinks should properly be decided by a judge and
the judge may either dispose
of the matter or refer it back to the Registrar
with such directions as he thinks
fit.
Power to
direct hearing in Court (O.32,
r.11)
11.-(1) The judge in chambers
may direct that any summons, application or appeal shall be heard in court or
shall be adjourned into
court to be so heard if he considers that by reason of
its importance or for any other reason it should be so
heard.
(2) Any matter heard in
court by virtue of a direction under paragraph (1) may be adjourned from court
into
chambers.
The
Registrar may summon parties, etc. (O.32,
r.12)
12.-(1) For the purpose of
any proceedings before him the Registrar may-
(a) issue a summons requiring any party to the proceedings to attend before him;
(b) at the request of any such party, issue a summons requiring any person to attend before him as a witness;
(c) require the production of documents; and
(d) examine any party or witness either orally or on interrogatories.
(2)
A summons under paragraph (1) (b) must be served personally on the person
against whom it is issued.
(3) If a
person refuses or fails to obey a summons duly served on him under this rule the
Registrar may make an order requiring that
person to attend before
him.
(4) The Registrar may examine
any party or witness either orally or on
interrogatories.
Obtaining
assistance of experts (O.32,
r.13)
13. If the Court thinks it
expedient in order to enable it better to determine any matter arising in
proceedings in chambers, it may
obtain the assistance of any person especially
qualified to advise on that matter and may act upon his
opinion.
Notice
of filing, etc. of affidavit (O.32,
r.14)
14. Any party-
(a) filing an affidavit intended to be used by him in any proceedings in chambers, or
(b) intending to use in any such proceedings any affidavit filed by him in previous proceedings, must serve every other party with a copy of the affidavit not less than two clear days before the hearing.
Disposal
of matters in Chambers (O.32,
r.15)
15. The judge may by any
judgment or order made in court in any proceedings direct that such matters (if
any) in the proceedings as
he may specify shall be disposed of in
chambers.
Papers
for use of Court, etc. (O.32,
r.16)
16. The original of any
document which is to be used in evidence in proceedings in chambers must, if it
is available, be brought in,
and copies of any such document or of any part
thereof shall not be made unless the Court directs that copies of that document
or
part be supplied for the use of the Court or be given to the other parties to
the
proceedings.
Notes
of proceedings in Chambers (O.32,
r.17)
17. A note shall be kept of
all proceedings in the judge’s chambers with the dates thereof so that all
such proceedings in any
cause or matter are noted in chronological order with a
short statement of the matters decided at such hearing.
O.33
ORDER 33
PLACE AND MODE OF TRIAL
Place of
trial (O.33,
r.1)
1. Subject to the provisions
of these Rules, the place of trial of a cause or matter, or of any question or
issue arising therein,
shall be determined by the
court.
Mode of
trial (O.33,
r.2)
2. Subject to the provisions
of these Rules, a cause or matter, or any question or issue arising therein, may
be tried before-
(a) a judge alone, or
(b) a judge with the assistance of assessors.
Time,
etc. of trial of questions or issues
(O.33, r.3)
3. The Court may order
any question or issue arising in a cause or matter, whether of fact or law or
partly of fact and party of law,
and whether raised by the pleadings or
otherwise, to be tried before, at or after the trial of the cause or matter, and
may give
directions as to the manner in which the question or issue shall be
stated.
Determining
the place and mode of trial (O.33,
r.4)
4.-(1) In every action begun
by writ, an order made on the summons for directions shall determine the place
and mode of the trial;
and any such order may be varied by a subsequent order of
the Court made at or before the
trial.
(2) In any such action
different questions or issues may be ordered to be tried at different places or
by different modes of trial
and one or more questions or issues may be ordered
to be tried before the
others.
Split
trial: offer on liability (O.33,
r.5)
5.-(1) This rule applies where
an order is made under rule 4(2) for the issue of liability to be tried before
any issue or question
concerning the amount of damages to be awarded if
liability is established.
(2) After
the making of an order to which paragraph (1) applies, any party against whom a
finding of liability is sought may (without
prejudice to his defence) make a
written offer to the other party to accept liability up to a specified
proportion.
(3) Any offer made
under the preceding paragraph maybe brought to the attention of the Judge after
the issue of liability has been
decided, but not
before.
Trial
with assistance of assessors (O.33,
r.6)
6. A trial of a cause or
matter with the assistance of assessors shall take place in such manner and on
such terms as the Court may
direct.
Dismissal
of action, etc. after decision of preliminary
issue (O.33,
r.7)
7. If it appears to the Court
that the decision of any question or issue arising in a cause or matter and
tried separately from the
cause or matter substantially disposes of the cause or
matter or renders the trial of the cause or matter unnecessary, it may dismiss
the cause or matter or make such other order or give such judgment therein as
may be just.
O.34
ORDER 34
SETTING DOWN FOR TRIAL
Time for
setting down action (O.34,
r.1)
1.-(1) Every order made in an
action which provides for trial before a judge shall, wherever the trial is to
take place, fix a period
within which the plaintiff is to set down the action
for trial.
(2) Where the plaintiff
does not, within the period fixed under paragraph (1), set the action down for
trial, the defendant may set
the action down for trial or may apply to the Court
to dismiss the action for want of prosecution and, on the hearing of any such
application, the Court may order the action to be dismissed accordingly or may
make such order as it thinks
just.
Pre-trial
conference (O.34,
r.2)
2.-(1) The provisions of this
rule apply only in proceedings in which all the parties are represented by
solicitors.
(2) Before an action
may be set down for trial the solicitor acting for any of the parties shall make
a written request to all the
other solicitors acting for other parties to the
action to attend a conference at a mutually convenient time and place, with the
object of reaching agreement as to possible ways of curtailing the duration of
the trial, and, in particular, as to all or any of
the following
matters-
(a) the possibility of obtaining admission of facts or documents;
(b) the holding of inspections and examinations;
(c) the discovery of documents;
(d) the exchange between parties of reports of experts;
(e) the plans, diagrams, photographs, models and similar articles to be used at the trial;
(f) the quantum of damages; and
(g) the consolidation of trials.
(3)
If any solicitor refuses to attend such a conference, the solicitor requesting
the same may apply to the Court for an order that
such conference be held, and
the Court may order that such conference be held at such time and place and for
such purpose as shall
be specified in the order, or may order that such
conference need not be held.
(4) At
the conclusion of any such conference the barristers and solicitors attending it
shall draw up and sign a minute of the matters,
if any, on which they are
agreed.
(5) When a barrister and
solicitor sets an action down for trial or makes a written request for a date
for the hearing thereof he
must state in writing whether a pre-trial conference
under this rule has been held and also state the particulars of any order made
under paragraph (3) a pre-trial conference under this rule has been held and
also state the particulars of any order made under paragraph
(3).
(6) Before the trial proceeds
the judge may call to his chambers the solicitors representing the parties in
the action with a view
to bringing about an agreement on any matter likely to
curtail the duration of the trial or save the
costs.
(7) When giving judgment on
the action the Court may award portions of the costs against any parties who
should have agreed to certain
matters at a pre-trial conference but had refused
to do so, if such an agreement would have curtailed the duration of the trial or
saved the
costs.
Setting
down for trial on points of law only or where pre-trial conference has been
held (O.34,
r.3)
3.-(1) In cases
where-
(a) the parties have stated a special case for the adjudication of the Court on a question of law only, or
(b) an order has been made under Order 33, rule 4 that a question of law shall be tried before other questions or issues, any of the parties may apply to the Registrar to set the case down for trial on a date to be agreed upon by all the parties and the Registrar.
(2)
In cases where the pleadings have been closed and a pre-trial conference has
been held, the plaintiff may apply to the Registrar
to set the case down for
trial and, if he does not so apply within 30 days of the date on which the
pleadings were closed or on which
the pre-trial conference was held (whichever
shall be the later date) either the plaintiff or the defendant may set the case
down
for trial.
(3) At least two
days notice of the date on which application will be made under paragraph (1) or
(2) must be given to all other parties
who shall be entitled to appear before
the Registrar and to state any objections they may have to the proposed date of
set-down.
(4) When a case has been
set down the party who sets it down shall forthwith give written notice of the
set-down to all other
parties.
Thereafter the party who
sets the case down may withdraw the set-down only with the consent of all the
other parties or by order of
the Court given after application has been made on
notice to all other parties.
(5)
After a set-down has been withdrawn either party may apply to the Registrar for
a new date on which the case may be set down.
Notice of such application must be
given to all the parties.
Lodging of
documents when setting down (O.34,
r.4)
4.-(1) In order to enter an
action for trial, the party seeking to enter it for trial shall take out a
summons returnable before the
Registrar applying for an order that the action be
entered for trial at the place specified in the order made on the summons for
directions.
(2) The party taking
out the summons shall file in the Registry two certified true copies (which may
be photostat copies or copies
made by a similar process) of the following
documents, bound up in book form in chronological order-
(a) the writ;
(b) the pleadings (including any affidavits ordered to stand as pleadings), any request or order for particulars and the particulars given;
(c) the minutes of a pre-trial conference, if any, held under rule 2; and
(d) all orders made on the summons for directions.
One
set of such copies shall serve as the record and the other shall be for the use
of the judge.
(3) At the hearing of
the summons the Registrar shall enquire of the parties whether his assistance
would be likely to facilitate
a settlement or compromise of the action before it
is entered for trial.
(4) If the
parties agree that further time is required for consideration of a settlement of
the action the Registrar shall adjourn
the hearing to such time and place as he
thinks fit.
(5) Where at the
hearing of the summons or at any adjournment thereof the parties agree that such
assistance is desirable to facilitate
a settlement, the Registrar may in his
discretion either afford such assistance himself, or adjourn the hearing and
direct that the
matter be referred to a person designated by him for the purpose
of facilitating the bringing about of a
settlement.
(6) Where the Registrar
refers the summons to another person under paragraph (5), that person shall hear
and discuss the matter with
the parties in an attempt to bring about a
settlement and shall report to the Registrar either the terms of settlement that
have
been reached or his failure to bring about a
settlement.
(7) Except where a
party having been duly served with the summons fails to attend at the hearing,
no order to enter an action for
trial shall be made unless the Registrar is
satisfied that the parties have had a reasonable opportunity to consider and
reach a
settlement or that no settlement appears to be likely to be reached
between them.
(8) No court record
shall be kept of any such discussions held with a view to bringing about a
settlement and no statement, concessions
or admissions made thereat shall be
admissible in evidence at the trial of the action or the trial of any other
action.
(9) Any such discussions as
aforesaid shall, unless a settlement is reached and entered by consent as a
judgment of the Court, be
without prejudice and shall be deemed to have been
held in confidence on an occasion of absolute
privilege.
(10) No process of the
Court shall be issued for the purpose of enforcing the attendance at any court
or tribunal of any person as
a witness to give evidence of anything said or
disclosed at the hearing of a summons for an order for the entry of an action
for
trial, or any adjournment thereof, or at any discussion between the parties
by a person referred to in paragraph
(6).
(11) At the hearing of any
summons or any adjournment thereof the Registrar, after hearing the parties, may
either enter judgment
by consent on any terms agreed or order that the case be
entered for trial or make such other order as may be
appropriate.
(12) In this rule the
words "party" and "parties" mean, where a plaintiff or defendant is legally
represented, his barrister and solicitor,
and where he is not so represented,
the plaintiff or defendant in person. In any case where the plaintiff or
defendant is legally
represented he may, if he wishes, be present in chambers in
person with his barrister and solicitor or, if his barrister and solicitor
consents, without his barrister and
solicitor.
Abatement,
etc., of action (O.34,
r.5)
5.-(1) Where after an action
has been set down for trial the action becomes abated, or the interest or
liability of any party to the
action is assigned or transmitted to or devolves
on some other person, the barrister and solicitor for the plaintiff or other
party
having the conduct of the action must, as soon as practicable after
becoming aware of it, certify the abatement or change of interest
or liability
and send the certificate to the Registrar who shall cause the appropriate entry
to be made in the list of actions set
down for
trial.
(2) Where in any such list
an action stands for one year marked as abated or ordered to stand over
generally, the action shall on
the expiration of that year be struck out of the
list unless, in the case of an action ordered to stand over generally, the order
otherwise provides.
O.3
ORDER 35
PROCEEDINGS AT TRIAL
Failure
to appear by both parties or one of them
(O.35, r.1)
1.-(1) If, when the
trial of an action is called on, neither party appears, the action may be struck
out of the list, without prejudice,
however, to the restoration thereof, on the
direction of a judge.
(2) If, when
the trial of an action is called on, one party does not appear; the judge may
proceed with the trial of the action or
any counterclaim in the absence of that
party.
Judgment,
etc. given in absence of party may be set
aside (O.35,
r.2)
2.-(1) Any judgment, order or
verdict obtained where one party does not appear at the trial maybe set aside by
the Court, on the application
of that party, on such terms as it thinks
just.
(2) An application under this
rule must be made within 7 days after the
trial.
Adjournment
of trial (O.35,
r.3)
3. The judge may, if he thinks
it expedient in the interest of justice, adjourn a trial for such time, and to
such place, and upon
such terms, if any, as he thinks
fit.
Change of
place of trial etc. (O.35,
r.4)
4. If the judge in any place
is of opinion that any cause or matter set down for trial at that place cannot,
for any sufficient reason,
be conveniently tried at that place, or at that place
and at the appointed time, he may, upon or without an application for that
purpose, change the place of trial or postpone the
trial.
Order of
speeches (O.35,
r.5)
5.-(1) The judge before whom
an action is tried may give directions as to the party to begin and the order of
speeches at the trial,
and, subject to any such directions, the party to begin
and the order of speeches shall be that provided by this
rule.
(2) Subject to paragraph (6),
the plaintiff shall begin by opening his
case.
(3) If the defendant elects
not to adduce evidence, then, whether or not the defendant has in the course of
cross-examination of a
witness for the plaintiff or otherwise put in a document,
the plaintiff may, after the evidence on his behalf has been given, make
a
second speech closing his case and the defendant shall then state his
case.
(4) If the defendant elects
to adduce evidence, he may, after any evidence on behalf of the plaintiff has
been given, open his case
and, after the evidence on his behalf has been given,
make a second speech closing his case, and at the close of the defendant's
case
the plaintiff may make a speech in
reply.
(5) Where there are two or
more defendants who appear separately or are separately represented,
then-
(a) if none of them elects to adduce evidence, each of them shall state his case in the order in which his name appears on the record;
(b) if each of them elects to adduce evidence, each of them may open his case and the evidence on behalf of each of them shall be given in the order aforesaid and the speech of each of them closing his case shall be made in that order after the evidence on behalf of all the defendants has been given;
(c) if some of them elect to adduce evidence and some do not, those who do not shall state their cases in the order aforesaid after the speech of the plaintiff in reply to the other defendants.
(6)
Where the burden of proof of all the issues in the action lies on the defendant
or, where there are two or more defendants and
they appear separately or are
separately represented, on one of the defendants, the defendant or that
defendant, as the case may
be, shall be entitled to begin, and in that case
paragraphs (2),(3) and (4) shall have effect in relation to, and as between, him
and the plaintiff as if for references to the plaintiff and the defendant there
were substituted references to the defendant and
the plaintiff
respectively.
(7) Where, as between
the plaintiff and any defendant, the party who would, but for this paragraph, be
entitled to make the final
speech raises any fresh point of law in that speech
or cites in that speech any authority not previously cited, the opposite party
may make a further speech in reply, but only in relation to that point of law or
that authority, as the case may
be.
Inspection
by judge (O.35,
r.6)
6. The judge by whom any cause
or matter is tried may inspect any place or thing with respect to which any
question arises in the
cause or
matter.
Death of
party before giving of judgment (O.35,
r.7)
7. Where a party to any action
dies after the verdict or finding of the issues of fact and before judgment is
given, judgment may
be given notwithstanding the death, but the foregoing
provision shall not be taken as affecting the power of the judge to make an
order under Order 15, rule 7(2), before giving
judgment.
List
of exhibits (O.35,
r.8)
8.-(1) The court clerk in
attendance at the trial shall take charge of every document or object put in as
an exhibit during the trial
of any action and shall mark or label every exhibit
with a letter or letters indicating the party by whom the exhibit is put in or
the witness by whom it is proved, and with a number, so that all the exhibits
put in by a party, or proved by a witness, are numbered
in one consecutive
series.
In this paragraph a witness
by whom an exhibit is proved includes a witness in the course of whose evidence
the exhibit is put in.
(2) The
court clerk shall cause a list to be made of all the exhibits in the action, and
any party may, on payment of the prescribed
fee, have an office-copy of that
list.
(3) The list of exhibits when
completed shall be attached to the pleadings and shall form part of the record
of the action.
(4) For the purpose
of this rule a bundle of documents may be treated and counted as one
exhibit.
Custody
of exhibit after trial (O.35,
r.9)
9. It shall be the duty of
every party to an action who has put in any exhibit to apply to the court clerk
immediately after the trial
for the return of the exhibit, and, so far as is
practicable, regard being had to the nature of the exhibit, to keep it duly
marked
and labelled as before, so that in the event of an appeal to the Court of
Appeal or the Supreme Court of Fiji he may be able to produce
the exhibit so
marked and labelled at the hearing of the appeal in case he is required by the
Court of Appeal or the Supreme Court
of Fiji to do
so.
Impounded
documents (O.35,
r.10)
10.-(1) Documents impounded
by order of the Court shall not be delivered out of the custody of the Court
except in compliance with
an order made by a judge on an application made by
motion:
Provided that where a Law
Officer makes a written request in that behalf, documents so impounded shall be
delivered into his custody.
(2)
Documents impounded by order of the Court, while in the custody of the Court,
shall not be inspected except by a person authorised
to do so by an order signed
by a judge.
O.36
ORDER 36
INQUIRIES BY THE REGISTRAR AND SPECIAL REFEREES
Application
and interpretation (O.36,
r.1)
1. In this Order the
Registrar’s or special referees’ business includes, without
prejudice to any right to a trial, any
cause or matter-
(a) which involves a prolonged examination of documents or accounts, or a technical, scientific or local investigation such as could more conveniently be conducted by the Registrar or special referee; or
(b) for which a report by the Registrar or special referee is desirable in the interests of one or more of the parties on grounds of expedition, economy or convenience or otherwise.
Reference
to the Registrar or special referee (O.36,
r.2)
2.-(1) In any cause or matter
the Court may refer to the Registrar or to a special referee (being a person
nominated by the Court)
for inquiry and report any question or issue of fact or
mixed law and fact arising therein, and, unless the Court otherwise orders,
further consideration of the cause or matter shall stand adjourned until the
receipt of the report.
(2) Before a
special referee enters upon the reference, the Registrar shall supply him
with-
(a) a certified copy of the order of reference,
(b) a copy of the pleadings, and
(c) a copy of such other documents as may be directed by the Court.
(3)
The Court may make such order as it thinks fit to provide for the remuneration
of a special referee and may give such directions
as maybe necessary for the
collection thereof from the parties and for the payment thereof to the special
referee.
Report
on reference under rule 2 (O.36,
r.3)
3.-(1) The report made by the
Registrar or special referee in pursuance of a reference under this Order shall
be made to the Court
and notice thereof served on the parties to the
reference.
(2) The Registrar or the
special referee may in his report submit any question arising therein for the
decision of the Court or make
a special statement of facts from which the Court
may draw such inferences as it thinks
fit.
(3) On the receipt of the
report of the Registrar or special referee the Court may-
(a) adopt the report in whole or in part;
(b) vary the report;
(c) require an explanation from him;
(d) remit the whole or any part of the question or issue originally referred to him for further consideration by him or any other special referee; or
(e) decide the question or issue originally referred to him on the evidence taken before him, either with or without additional evidence.
(4)
When the report has been made, an application to vary the report or remit the
whole or any part of the question or issue originally
referred may be made on
the hearing by the Court of the further consideration of the cause or matter,
after giving not less than
4 days’ notice thereof, and any other
application with respect to the report may be made on that hearing without
notice.
(5) Where the Court orders
that the further consideration of the cause or matter in question shall not
stand adjourned until the receipt
of the report, the order may contain
directions with respect to the proceedings on the receipt of the report, and the
foregoing provisions
of this rule shall have effect subject to any such
directions.
Powers,
etc. of official referees (O.36,
r.4)
4.-(1) Subject to any
directions contained in the order referring any business to the Registrar or
special referee-
(a) the Registrar or special referee shall for the purpose of dealing with any matter (including any interlocutory application therein) or any other business referred to him have the same jurisdiction, powers and duties (including the power of committal and discretion as to costs) as a judge, exercisable or, as the case may be, to be performed as nearly as circumstances admit in the like cases, in the like manner and subject to the like limitations; and
(b) proceedings before the Registrar or special referee shall, as nearly as circumstances admit, be conducted in the like manner as the like proceedings before a judge.
(2)
No steps or proceedings shall be taken to enforce any order made or any
direction given by the Registrar or special referee in
the exercise of any of
the powers referred to in paragraph (1)(a) until such order or direction has
been confirmed by a judge.
(3) The
Registrar or special referee may hold any proceeding before him at any place
which appears to him to be convenient and may
adjourn the proceedings from place
to place as he thinks fit.
O.37
ORDER 37
ASSESSMENT OF DAMAGES
Assessment
of damages (O.37,
r.1)
1.-(1) Where judgment is given
for damages to be assessed and no provision is made by the judgment as to how
they are to be assessed,
the damages shall, subject to the provisions of this
Order, be assessed by the Registrar, and the party entitled to the benefit of
the judgment may, after obtaining the necessary appointment from the Registrar
and, at least 7 days before the date of the appointment,
serving notice of the
appointment on the party against whom the judgment is given, proceed
accordingly.
(2) Notwithstanding
anything in Order 65, rule 9, a notice under this rule must be served on the
party against whom the judgment is
given.
(3) Without prejudice to the
powers of the Registrar under Order 32, rule 12, the attendance of witnesses and
the production of documents
before the proceedings under this Order may be
compelled by writ of subpoena, and the provisions of Order 35 shall, with the
necessary
adaptations, apply in relation to those proceedings as they apply in
relation to proceedings at a
trial.
Certificate
of amount of damages (O.37,
r.2)
2. Where in pursuance of this
Order or otherwise damages are assessed by the Registrar, he shall certify the
amount of the damages
and file the certificate in the
Registry.
Default
judgment against some but not all
defendants (O.37,
r.3)
3. Where any such judgment as
is mentioned in rule 1 is given for failure to give notice of intention to
defend or in default of defence,
and the action proceeds against other
defendants, the damages under the judgment shall be assessed at the trial unless
the Court
otherwise
orders.
Assessment
by special referee etc. (O.37,
r.4)
4.-(1) Where judgment is given
for damages to be assessed, the Court may order-
(a) that the assessment of the damages be referred to a special referee, or
(b) that the damages be assessed by the Registrar, or
(c) that the action shall proceed to trial before a judge as respects the damages.
(2)
Where the Court orders that the action shall proceed to trial, Order 25, rules 2
to 7, shall, with the omission of so much of
rule 7(1) as requires the parties
to serve a notice specifying the orders and directions which they desire and
with any other necessary
modifications, apply as if the application to the Court
in pursuance of which the Court makes the order, were a summons for directions
under Order
25.
Assessment
of value (O.37,
r.5)
5. The foregoing provisions of
this Order shall apply in relation to a judgment for the value of goods to be
assessed, with or without
damages to be assessed, as they apply to a judgment
for damages to be assessed, and references in those provisions to the assessment
of damages shall be construed
accordingly.
Assessment
of damages to time of assessment (O.37,
r.6)
6. Where damages are to be
assessed (whether under this Order or otherwise) in respect of any continuing
cause of action, they shall
be assessed down to the time of the
assessment.
O.38
ORDER 38
EVIDENCE
I: GENERAL RULES
General
rule: witnesses to be examined orally
(O.38, r.1)
1. Subject to the
provisions of these Rules and of the Evidence Act and any other enactment
relating to evidence, any fact required to be proved at the trial of any action
begun by writ by the evidence
of witnesses shall be proved by the examination of
the witnesses orally and in open
court.
Evidence
by affidavit (O.38,
r.2)
2.-(1) The Court may, at or
before the trial of an action begun by writ, order that the affidavit of any
witness may be read at the
trial if in the circumstances of the case it thinks
it reasonable so to order.
(2) An
order under paragraph (1) maybe made on such terms as to the filing and giving
of copies of the affidavits and as to the production
of the deponents for
cross-examination as the Court thinks fit but, subject to any such terms and to
any subsequent order of the
Court, the deponents shall not be subject to
cross-examination and need not attend the trial for the
purpose.
(3) In any cause or matter
begun by originating summons, originating motion or petition, and on any
application made by summons or
motion, evidence may be given by affidavit unless
in the case of any such cause, matter or application any provision of these
Rules
otherwise provides or the Court otherwise directs, but the Court may, on
the application of any party, order the attendance for cross-examination
of the
person making any such affidavit, and where, after such an order has been made,
the person in question does not attend, his
affidavit shall not be used as
evidence without the leave of the
Court.
Evidence
of particular facts (O.38,
r.3)
3.-(1) Without prejudice to
rule 2, the Court may, at or before the trial of any action, order that evidence
of any particular fact
shall be given at the trial in such manner as may be
specified by the order.
(2) The
power conferred by paragraph (1) extends in particular to ordering that evidence
of any particular fact may be given at the
trial-
(a) by statement on oath of information or belief, or
(b) by the production of documents or entries in books, or
(c) by copies of documents or entries in books, or
(d) in the case of a fact which is or was a matter of common knowledge either generally or in a particular district, by the production of a specified newspaper which contains a statement of that fact.
Limitation
of expert evidence (O.38,
r.4)
4. The Court may, at or before
the trial of any action, order that the number of medical or other expert
witnesses who may be called
at the trial shall be limited as specified by the
order.
Limitation
of plans, etc. in evidence (O.38.
r.5)
5. Unless, at or before the
trial, the Court otherwise orders, no plan, photograph or model shall be
receivable in evidence at the
trial of an action unless at least 10 days before
the commencement of the trial the parties, other than the party producing it,
have
been given an opportunity to inspect it and to agree to the admission
thereof without further
proof.
Revocation
or variation of orders under rules 2 to 5
(O.38, r.6)
6. Any order under
rules 2 to 5 (including an order made on appeal) may, on sufficient cause being
shown, be revoked or varied by
a subsequent order of the Court made at or before
the
trial.
Evidence
of finding on foreign law (O.38,
r.7)
7.-(1) A party to any cause or
matter who intends to adduce in evidence a finding or decision on a question of
foreign law shall-
(a) in the case of an action to which Order 25, rule 1, applies, within 14 days after the pleadings in the action are deemed to be closed, and
(b) in the case of any other cause or matter, within 21 days after the date on which an appointment for the first hearing of the cause or matter is obtained, or in either case, within such other period as the Court may specify, serve notice of his intention on every other party to the proceedings.
(2)
The notice shall specify the question on which the finding or decision was given
or made and specify the document in which it
is reported or recorded in citable
form.
(3) In any cause or matter in
which evidence maybe given by affidavit, an affidavit specifying the matters
contained in paragraph
(2) shall constitute notice under paragraph (1) if served
within the period mentioned in that
paragraph.
Application
to trials of issues, references, etc.
(O.38, r.8)
8. The foregoing rules
of this Order shall apply to trials of issues or questions of fact or law,
references, inquiries and assessments
of damages as they apply to the trial of
actions.
Depositions:
when receivable in evidence at trial
(O.38, r.9)
9.-(1) No deposition
taken in any cause or matter shall be received in evidence at the trial of the
cause or matter unless-
(a) the deposition was taken in pursuance of an order under Order 39, rule 1, and
(b) either the party against whom the evidence is offered consents or it is proved to the satisfaction of the Court that the deponent is dead, or beyond the jurisdiction of the court or unable from sickness or other infirmity to attend the trial.
(2)
A party intending to use any deposition in evidence at the trial of a cause or
matter must, a reasonable time before the trial,
give notice of his intention to
do so to the other party.
(3) A
deposition purporting to be signed by the person before whom it was taken shall
be receivable in evidence without proof of the
signature being the signature of
that
person.
Court
documents admissible or receivable in
evidence (O.38, r.10)
10.-(1) Office copies of writs,
records, pleadings and documents filed in the High Court or Court of Appeal
shall be admissible in
evidence in any cause or matter and between all parties
to the same extent as the original would be
admissible.
(2) Without prejudice
to the provisions of any enactment, every document purporting to be sealed with
the seal of any office or department
of the High Court or Court of Appeal shall
be received in evidence without further proof, and any document purporting to be
so sealed
and to be a copy of a document filed in, or issued out of, that office
or department shall be deemed to be an office copy of that
document without
further proof unless the contrary is
shown.
Evidence
of consent of new trustee to act (O.38,
r.11)
11. A document purporting to
contain the written consent of a person to act as trustee and to bear his
signature verified by some
other person shall be evidence of such
consent.
Evidence
at trial may be used in subsequent
proceedings (O.38,
r.12)
12. Any evidence taken at the
trial of any cause or matter maybe used in any subsequent proceedings in that
cause or
matter.
Order to
produce document at proceeding other than
trial (O.38,
r.13)
13.-(1) At any stage in a
cause or matter the Court may order any person to attend any proceedings in the
cause or matter and produce
any document, to be specified or described in the
order, the production of which appears to the Court to be necessary for the
purpose
of that proceeding.
(2) No
person shall be compelled by an order under paragraph (1) to produce any
document at a proceeding in a cause or matter which
he could not be compelled to
produce at the trial of that cause or matter.
II. WRITS OF SUBPOENA
Form and
issue of writ of subpoena (O.38,
r.14)
14.-(1) A writ of subpoena
must be in Form No. 16 in Appendix
A.
(2) Issue of a writ of subpoena
takes place upon its being sealed by an officer of the
Court.
(3) Before a writ of
subpoena is issued a
praecipe
for the issue of the writ must be filed in the office out of which the writ is
to issue; and the
praecipe
must contain the name and address of the party issuing the writ, if he is acting
in person, or the name or firm and business address
of that party’s
barrister and solicitor and also (if the barrister and solicitor is the agent of
another) the name or firm
and business address of his principal, and the name
and address of the person to be
summoned.
(4) Unless the Court
otherwise directs every writ of subpoena which is issued or served less than
seven clear days before the date
of hearing shall bear the following
endorsement-
"NOTE- If this subpoena is served less than 7 clear days before the hearing you are not obliged to attend if, as a result of short notice, it is inconvenient for you to do so. In this event you should so inform the Court."
(5)
Unless a writ of subpoena is duly served on the person to whom it is directed
not less than 7 clear days, or such other period
as the Court may fix, before
the date of hearing together with appropriate conduct money that person shall
not be liable to any penalty
or process for failing to obey the
writ.
More than
one name may be included in one writ of
subpoena (O.38,
r.15)
15. The names of two or more
persons may be included in one writ of subpoena
ad
testificandum.
Amendment
of writ of subpoena (O.38,
r.16)
16. Where there is a mistake
in any person’s name or address in a writ of subpoena, then, if the writ
has not been served; the
party by whom the writ was issued may have the writ
re-sealed in correct form by filing a second
praecipe
under rule 14 (3) indorsed with the words "Amended and
re-sealed".
Service
of writ of subpoena (O.38,
r.17)
17. A writ of subpoena must
be served personally and, subject to rule 19, the service shall not be valid
unless effected within 12
weeks after the date of issue of the writ and not less
than four days or such other period as the Court may fix, before the day on
which attendance before the Court is
required.
Duration
of writ of subpoena (O.38,
r.18)
18. Subject to rule 19, a
writ of subpoena continues to have effect until the conclusion of the trial at
which the attendance of the
witness is
required.
Writ
of subpoena in aid of inferior court or
tribunal (O.38, r.19)
19.-(1) The office of the High
Court out of which a writ of subpoena
ad
testificandum
or a writ of subpoena
duces
tecum in aid of an inferior court or
tribunal maybe issued is the Registry, and no order of the Court for the issue
of such a writ is necessary.
(2) A
writ of subpoena in aid of an inferior court or tribunal continues to have
effect until the disposal of the proceedings before
that court or tribunal at
which the attendance of the witness is
required.
(3) A writ of subpoena
issued in aid of an inferior court or tribunal must be served
personally.
(4) Unless a writ of
subpoena issued in aid of an inferior court or tribunal is duly served on the
person to whom it is directed not
less than 7 days, or such other period as the
Court may fix, before the day on which the attendance of that person before the
court
or tribunal is required by the writ, that person shall not be liable to
any penalty or process for failing to obey the
writ.
(5) An application to set
aside a writ of subpoena issued in aid of an inferior court or tribunal shall be
heard by a judge.
O.39
ORDER 39
EVIDENCE BY DEPOSITION: EXAMINERS OF THE COURT
Power to
order deposition to be taken (O.39,
r.1)
1.- (1) The Court may, in any
cause or matter where it appears necessary for the purposes of justice, make an
order (in Form No. 17
in Appendix A) for the examination on oath before a judge,
an officer of the Court or some other person, at any place, of any
person.
(2) An order under
paragraph (1) maybe made on such terms (including, in particular, terms as to
the giving of discovery before the
examination takes place) as the Court thinks
fit.
Where
person to be examined is out of the
jurisdiction (O.39, r.2)
2.-(1) Where the person in
relation to whom an order under rule 1 is required is out of the jurisdiction,
an application may be made-
(a) for an order (in Form No. 18 in Appendix A) under that rule for the issue of a letter of request to the judicial authorities of the country in which that person is to take, or cause to be taken, the evidence of that person, or
(b) if the government of that country allows a person in that country to be examined before a person appointed by the Court, for an order (in Form No. 19 in Appendix A) under that rule appointing a special examiner to take the evidence of that person in that country.
(2)
An application may be made for the appointment as special examiner of a Fiji
consul in the country in which the evidence is to
be taken or his
deputy-
(a) if there subsists with respect to that country a Civil Procedure Convention providing for the taking of the evidence of any person in that country for the assistance of proceedings in the High Court, or
(b) with the consent of the Attorney-General.
Order
for issue of letter of request (O.39,
r.3)
3.-(1) Where an order is made
under rule 1 for the issue of a letter of request to the judicial authorities of
a country to take,
or cause to be taken, the evidence of any person in that
country the following provisions of this rule shall
apply.
(2) The party obtaining the
order must prepare the letter of request and lodge it in the Registry, and the
letter must be in Form
No. 20 in Appendix A, with such variations as the order
may require.
(3) If the evidence of
the person to be examined is to be obtained by means of written questions, there
must be lodged with the letter
of request a copy of the interrogatories and
cross-interrogatories to be put to him on
examination.
(4) Each document
lodged under paragraph (2) or (3) must be accompanied by a translation of the
document in the official language
of the country in which the examination is to
be taken or, if there is more than one official language of that country, in any
one
of those languages which is appropriate to the place in that country where
the examination is to be taken unless one of the official
languages of that
country is English.
(5) Every
translation lodged under paragraph (4) must be certified by the person making it
to be a correct translation; and the certificate
must contain a statement of
that person’s full name, of his address and of his qualifications for
making the translation.
(6) The
party obtaining the order must, when he lodges in the Registry the documents
mentioned in paragraphs (2) to (5), also file
in that office an undertaking
signed by him or his solicitor to be responsible personally for all expenses
incurred by the Attorney-General
in respect of the letter of request and, on
receiving due notification of the amount of those expenses, to pay that amount
to the
Attorney-General.
Enforcing
attendance of witness at examination
(O.39, r.4)
4. Where an order has
been made under rule 1-
(a) for the examination of any person before an officer of the Court or some other person (in this rule and rules 5 to 14 referred to as "the examiner"), or
(b) for the cross-examination before the examiner of any person who has made an affidavit which is to be used in any cause or matter, the attendance of that person before the examiner and the production by him of any document at the examination may be enforced by writ of subpoena in like manner as the attendance of a witness and the production by a witness of a document at a trial may be enforced.
Refusal
of witness to attend, be sworn, etc.
(O.39, r.5)
5.-(1) If any person,
having been duly summoned by writ of subpoena to attend before the examiner,
refuses or fails to attend or refuses
to be sworn for the purpose of the
examination or to answer any lawful question or produce any document therein, a
certificate of
his refusal or failure, signed by the examiner, must be filed in
the Registry, and upon the filing of the certificate the party by
whom the
attendance of that person was required may apply to the Court for an order
requiring that person to attend, or to be sworn
or to answer any question or
produce any document, as the case may
be.
(2) An application for an order
under this rule may be made
ex
parte.
(3) If the Court makes an
order under this rule, it may order the person against whom the order is made to
pay any costs occasioned
by his refusal or
failure.
(4) A person who wilfully
disobeys any order made against him under paragraph (1) is guilty of contempt of
court.
Taking of
depositions (O.39,
r.11)
11.-(1) The deposition of any
person examined before the examiner must be taken down by the examiner or a
shorthand writer or some
other person in the presence of the examiner but,
subject to paragraph (2) and rule 10(1), the deposition need not set out every
question and answer so long as it contains as nearly as may be the statement of
the person examined.
(2) The
examiner may direct the exact words of any particular question and the answer
thereto to be set out in the deposition if that
question and answer appear to
him to have special importance.
(3)
The deposition of any person shall be read to him, and he shall be asked to sign
it, in the presence of such of the parties as
may attend, but the parties may
agree in writing to dispense with the foregoing
provision.
If a person refuses to
sign a deposition when asked under this paragraph to do so, the examiner must
sign the deposition.
(4) The
original deposition of any person, authenticated by the signature of the
examiner before whom it was taken, must be sent by
the examiner to the Registry
and shall be filed
therein.
Time
taken by examination to be indorsed on
depositions (O.39,
r.12)
12. Before sending any
deposition to the Registry under rule 11(4), the examiner must indorse on the
deposition a statement signed
by him of the time occupied in taking the
examination and the fees received in respect
thereof.
Special
report by examiner (O.39,
r.13)
13. The examiner may make a
special report to the Court with regard to any examination taken before him and
with regard to the absence
or conduct of any person thereat, and the Court may
direct such proceedings to be taken, or make such order, on the report as it
thinks
fit.
Order for
payment of examiner’s fees (O.39,
r.14)
14.-(1) If the fees and
expenses due to an examiner are not paid he may report that fact to the Court,
and the Court may direct the
Registrar to apply for an order against the party
on whose application the order for examination was made to pay the examiner the
fees and expenses due to him in respect of the
examination.
(2) An order under
this rule shall not prejudice any determination on the taxation of costs or
otherwise as to the party by whom the
costs of the examination are ultimately to
be
borne.
Perpetuation
of testimony (O.39,
r.15)
15.-(1) Witnesses shall not
be examined to perpetuate testimony unless an action has been begun for the
purpose.
(2) Any person who would
under the circumstances alleged by him to exist become entitled, upon the
happening of any future event,
to any honour, title, dignity or office, or to
any estate or interest in any real or personal property, the right or claim to
which
cannot be brought to trial by him before the happening of such event, may
begin an action to perpetuate any testimony which may be
material for
establishing such right or
claim.
(3) No action to perpetuate
the testimony of witnesses shall be set down for
trial.
Fees and
expenses of examiners (O.39,
r.16)
16.-(1) The party prosecuting
the order must pay all reasonable expenses as certified by the Registrar in
addition to the prescribed
fees for an
examination.
(2) The Registrar may
require an amount estimated by him to cover the expenses of the examination to
be deposited before the order
for the examination is sealed.
O.40
ORDER 40
COURT EXPERT
Appointment
of expert to report on certain questions
(O.40, r.1)
1.-(1) In any cause or
matter in which any question for an expert witness arises the Court may at any
time, on the application of
any party, appoint an independent expert or, if more
than one such question arises, two or more such experts, to inquire and report
upon any question of fact or opinion not involving questions of law or of
construction.
An expert appointed
under this paragraph is referred to in this Order as a "court
expert".
(2) Any court expert in a
cause or matter shall, if possible, be a person agreed between the parties and,
failing agreement, shall
be nominated by the
Court.
(3) The question to be
submitted to the court expert and the instructions (if any) given to him shall,
failing agreement between the
parties, be settled by the
Court.
(4) In this rule "expert",
in relation to any question arising in a cause or matter, means any person who
has such knowledge or experience
of or in connection with that question that his
opinion on it would be admissible in
evidence.
Report
of court expert (O.40,
r.2)
2.-(1) The court expert must
send his report to the Court, together with such number of copies thereof as the
Court may direct, and
the Registrar must send copies of the report to the
parties or their barristers and
solicitors.
(2) The Court may
direct the court expert to make a further or supplemental
report.
(3) Any part of a court
expert’s report which is not accepted by all the parties to the cause or
matter in which it is made
shall be treated as information furnished to the
Court and be given such weight as the Court thinks
fit.
Experiments
and tests (O.40,
r.3)
3. If the Court expert is of
opinion that an experiment or test of any kind (other than one of a trifling
character) is necessary
to enable him to make a satisfactory report he shall
inform the parties or their solicitors and shall, if possible, make an
arrangement
with them as to the expenses involved, the persons to attend and
other relevant matters; and if the parties are unable to agree on
any of those
matters it shall be settled by the
Court.
Cross-examination
of court expert (O.40,
r.4)
4. Any party may, within 14
days after receiving a copy of the court expert’s report, apply to the
Court for leave to cross-examine
the expert on his report, and on that
application the Court shall make an order for the cross-examination of the
expert by all the
parties either-
(a) at the trial, or
(b) before an examiner at such time and place as may be specified in the order.
Remuneration
of court expert (O.40,
r.5)
5.-(1) The remuneration of the
court expert shall be fixed by the Court and shall include a fee for his report
and a proper sum for
each day during which he is required to be present either
in court or before an examiner.
(2)
Without prejudice to any order providing for payment of the court expert’s
remuneration as part of the costs of the cause
or matter, the parties shall be
jointly and severally liable to pay the amount fixed by the Court for his
remuneration, but where
the appointment of a court expert is opposed the Court
may, as a condition of making the appointment, require the party applying
for
the appointment to give such security for the remuneration of the expert as the
Court thinks
fit.
Calling of
expert witnesses (O.40,
r.6)
6. Where a court expert is
appointed in a cause or matter, any party may, on giving to the other parties a
reasonable time before
the trial notice of his intention to do so, call one
expert witness to give evidence on the question reported on by the court expert
but no party may call more than one such witness without the leave of the Court,
and the Court shall not grant leave unless it considers
the circumstances of the
case to be exceptional.
O.41
ORDER 41
AFFIDAVITS
Form of
affidavit (O.41,
r.1)
1.-(1) Subject to paragraphs
(2) and (3), every affidavit sworn in a cause or matter must be entitled in that
cause or matter.
(2) Where a cause
or matter is entitled in more than one matter, it shall be sufficient to state
the first matter followed by the
words "and other matters", and where a cause or
matter is entitled in a matter or matters and between parties, that part of the
title
which consists of the matter or matters may be
omitted.
(3) Where there are more
plaintiffs than one, it shall be sufficient to state the full name of the first
followed by the words "and
others", and similarly with respect to
defendants.
(4) Every affidavit
must be expressed in the first person and, unless the Court otherwise directs,
must state the place of residence
of the deponent and his occupation or, if he
has none, his description, and if he is, or is employed by, a party to the cause
or
matter in which the affidavit is sworn, the affidavit must state that
fact.
In the case of a deponent who
is giving evidence in a professional, business or other occupational capacity
the affidavit may, instead
of stating the deponent’s place of residence,
state the address at which he works, the position he holds and the name of his
firm or employer, if any.
(5) Every
affidavit must be in book form, following continuously from page to
page.
(6) Every affidavit must be
divided into paragraphs numbered consecutively, each paragraph being as far as
possible confined to a
distinct portion of the
subject.
(7) Dates, sums and other
numbers must be expressed in an affidavit in figures and not in
words.
(8) Every affidavit must be
signed by the deponent and the jurat must be completed and signed by the person
before whom it is
sworn.
Affidavit
by two or more deponents (O.41,
r.2)
2. Where an affidavit is made
by two or more deponents, the names of the persons making the affidavit must be
inserted in the jurat
except that, if the affidavit is sworn by both or all the
deponents at one time before the same person, it shall be sufficient to
state
that it was sworn by both (or all) of the "abovenamed"
deponents.
Affidavit
by illiterate or blind person or person who does not understand
English (O.41,
r.3)
3.-(1) Where it appears to the
person administering the oath that the deponent is illiterate or blind, he must
certify in the jurat
that-
(a) the affidavit was read in his presence to the deponent,
(b) the deponent seemed perfectly to understand it, and
(c) the deponent made his signature or mark in his presence;
and
the affidavit shall not be used in evidence without such a certificate unless
the Court is otherwise satisfied that it was read
to and appeared to be
perfectly understood by the
deponent.
(2) Where it appears to
the person administering the oath that the deponent does not understand the
English language he must certify
in the jurat that-
(a) the affidavit was read, explained and interpreted, either by himself or through the medium of a sworn and named interpreter in his presence, to the deponent in a specified language with which the deponent was familiar,
(b) the deponent seemed perfectly to understand it, and
(c) the deponent made his signature or mark in his presence; and the affidavit shall not be used in evidence without such a certificate.
Use
of defective affidavit (O.41,
r.4)
4. An affidavit may, with the
leave of the Court, be filed or used in evidence notwithstanding any
irregularity in the form
thereof.
Contents
of affidavit (O.41,
r.5)
5.-(1) Subject to Order 14,
rules 2(2) and 4(2), to Order 86, rule 2(1), to paragraph (2) of this rule and
to any order made under
Order 38, rule 3, an affidavit may contain only such
facts as the deponent is able of his own knowledge to
prove.
(2) An affidavit sworn for
the purpose of being used in interlocutory proceedings may contain statements of
information or belief
with the sources and grounds
thereof.
Scandalous,
etc., matter in affidavit (O.41,
r.6)
6. The Court may order to be
struck out of any affidavit any matter which is scandalous, irrelevant or
otherwise
oppressive.
Alterations
in affidavits (O.41,
r.7)
7.-(1) An affidavit which has
in the jurat or body thereof any interlineation, erasure or other alteration
shall not be filed or used
in any proceeding without the leave of the Court
unless the person before whom the affidavit was sworn has initialled the
alteration
and, in the case of an erasure, has re-written in the margin of the
affidavit any words or figures written on the erasure and has
signed or
initialled them.
(2) Where an
affidavit is sworn at any office of the High Court, the official stamp of that
office may be substituted for the signature
or initials required by this
rule.
Affidavit
not to be sworn before barrister and solicitor of party,
etc. (O.41,
r.8)
8. No affidavit shall be
sufficient if sworn before the barrister and solicitor of the party on whose
behalf the affidavit is to be
used or before any agent, partner or clerk of that
barrister and
solicitor.
Filing
of affidavits (O.41,
r.9)
9.-(1) Except as otherwise
provided by these Rules, every affidavit must be filed in the
Registry.
(2) Every affidavit must
be indorsed with a note showing on whose behalf it is filed and the dates of
swearing and filing, and an
affidavit which is not so indorsed may not be filed
or used without the leave of the
Court.
Use of
original affidavit or office copy (O.41,
r.10)
10.-(1) Subject to paragraph
(2) an original affidavit maybe used in proceedings notwithstanding that it has
not been filed in accordance
with rule
9.
(2) An original affidavit may
not be used in any proceedings unless it has previously been stamped with the
stamp duty.
(3) Where an original
affidavit is used then, unless the party whose affidavit it is undertakes to
file it, he must immediately after
it is used leave it with the proper officer
in court or in chambers, as the case may be, and that officer shall send it to
be filed.
(4) Where an affidavit
has been filed, an office copy thereof may be used in any
proceedings.
Document
to be used in conjunction with affidavit to be exhibited to
it (O.41,
r.11)
11.-(1) Any document to be
used in conjunction with an affidavit must be exhibited to the
affidavit.
(2) Any exhibit to an
affidavit must be identified by a certificate of the person before whom the
affidavit is
sworn.
Affidavit
taken in Commonwealth country admissible without proof of seal,
etc. (O.41,
r.12)
12. A document purporting to
have affixed or impressed thereon or subscribed thereto the seal or signature of
a court, judge, notary
public or person having authority to administer oaths in
a part of the Commonwealth outside Fiji in testimony of an affidavit being
taken
before it or him in that part shall be admitted in evidence without proof of the
seal or signature being the seal or signature
of that court, judge, notary
public or person.
O.42
ORDER 42
JUDGMENTS AND ORDERS
Form of
judgment, etc. (O.42,
r.1)
1.-(1) If, in the case of any
judgment, a form thereof is prescribed by Appendix A the judgment must be in
that form.
(2) The party entering
any judgment shall be entitled to have recited therein a statement of the manner
in which, and the place at
which, the writ or other originating process by which
the cause or matter in question was begun was
served.
(3) Every order must be
marked with the name of the judge or other person by whom it was made and must
be
sealed.
Judgment
in favour of reversioner for detention of
goods (O.42,
r.2)
2. Where a claim relating to
the detention of goods is made by a partial owner whose right of action is not
founded on a possessory
title, any judgment or order given or made in respect of
the claim shall be for the payment of damages
only.
In this paragraph "partial
owner" means one of two or more persons having interests in the goods, unless he
has the written authority
of every other such person to sue on the
latter’s
behalf.
Judgment,
etc., requiring act to be done: time for doing
it (O.42,
r.3)
3.-(1) Subject to paragraph
(2), a judgment or order which requires a person to do an act must specify the
time after service of the
judgment or order, or some other time, within which
the act is to be done.
(2) Where
the act which any person is required by any judgment or order to do is to pay
money to some other person, give possession
of any land or deliver any goods, a
time within which the act is to be done need not be specified in the judgment or
order by virtue
of paragraph (1), but the foregoing provision shall not affect
the power of the Court to specify such a time and to adjudge or order
accordingly.
Date
from which judgment or order takes effect
(O.42, r.4)
4.-(1) A judgment or
order of the Court takes effect from the day of its
date.
(2) Such a judgment or order
shall be dated as of the day on which it is pronounced, given or made, unless
the Court orders it to
be dated as of some other earlier or later day, in which
case it shall be dated as of that other
day.
Orders
required to be drawn up (O.42,
r.5)
5.-(1) Subject to paragraph
(2), every order of the Court shall be drawn up unless the Court otherwise
directs.
(2) An
order-
(a) which-
(i) extends the period within which a person is required or authorised by these Rules, or by any judgment, order or direction, to do any act, or
(ii) grants leave for the doing of any of the acts mentioned in paragraph (3), and
(b) which neither imposes any special terms nor includes any special directions other than a direction as to costs, need not be drawn up unless the Court otherwise directs.
(3) The
acts referred to in paragraph (2) (a) (ii) are-
(a) the issue of any writ, other than a writ of summons for service out of the jurisdiction;
(b) the amendment of a writ of summons or other originating process or a pleading;
(c) the filing of any document;
(d) any act to be done by an officer of the Court other than a barrister and solicitor.
Drawing
up and entry of judgments and orders
(O.42, r.6)
6.-(1) Every judgment
given in a cause or matter and every order required to be drawn up shall be
settled by or under the direction
of the Registrar before being entered or drawn
up.
(2) The party seeking to enter
a judgment or to have an order drawn up may and shall if so required by the
Registrar prepare a draft
of the judgment or order and present the draft to the
Registrar.
(3) If the party in
whose favour a judgment is given or an order is made does not prepare it, have
it settled and enter it within
21 days after it is given or made any other party
affected by the judgment or order may prepare it, have it settled and
entered.
(4) Every judgment when
entered shall be endorsed with the date of
entry.
Default
in connection with drawing up judgments
etc. (O.42,
r.7)
7. If a party fails to attend
an appointment made by a judge or the Registrar for settling any judgment or
order or fails to produce
any documents required by the judge or the Registrar
in order to enable him to draw up the judgment or order, the judge or the
Registrar
may draw up and pass the judgment or order in the absence of that
party.
O.43
ORDER 43
ACCOUNTS AND INQUIRIES
Summary
order for account (O.43,
r.1)
1.-(1) Where a writ is
indorsed with a claim for an account or a claim which necessarily involves
taking an account, the plaintiff
may, at any time after the defendant has
acknowledged service of the writ or after the time limited for acknowledging
service, apply
for an order under this
rule.
(2) A defendant to an action
begun by writ who has served a counterclaim, which includes a claim for an
account or a claim which necessarily
involves taking an account,
on-
(a) the plaintiff, or
(b) any other party, or
(c) any person who becomes a party by virtue of such service may apply for an order under this rule.
(3)
An application under this rule must be made by summons and, if the Court so
directs, must be supported by affidavit or other
evidence.
(4) On the hearing of the
application, the Court may, unless satisfied by the defendant that there is some
preliminary question to
be tried, order that an account be taken and may also
order that any amount certified on taking the account to be due to either party
be paid to him within a time specified in the
order.
Court may
direct taking of accounts, etc. (O.43,
r.2)
2.-(1) The Court may, on an
application made by summons at any stage of the proceedings in a cause or
matter, direct any necessary
accounts or inquiries to be taken or
made.
(2) Every direction for the
taking of an account or the making of an inquiry shall be numbered in the
judgment or order so that, as
far as may be each distinct account and inquiry
may be designated by a
number.
Directions
as to manner of taking account or making
inquiry (O.43,
r.3)
3.-(1) Where the Court orders
an account to betaken or inquiry to be made it may by the same or a subsequent
order give directions
with regard to the manner in which the account is to be
taken or vouched or the inquiry is to be
made.
(2) Without prejudice to the
generality of paragraph (1), the Court may direct that in taking an account the
relevant books of account
shall be evidence of the matters contained therein
with liberty to the parties interested to take such objections thereto as they
think
fit.
Account to
be made, verified etc. (O.43,
r.4)
4.-(1) Where an account has
been ordered to be taken, the accounting party must make out his account and,
unless the Court otherwise
directs, verify it by an affidavit to which the
account must be exhibited.
(2) The
items on each side of the account must be numbered
consecutively.
(3) Unless the order
for the taking of the account otherwise directs, the accounting party must lodge
the account with the Court and
must at the same time notify the other parties
that he has done so and of the filing of any affidavit verifying the account and
of
any supporting
affidavit.
Notice
to be given of alleged omissions, etc in
account (O.43, r.5)
5. Any party who seeks to charge
an accounting party with an amount beyond that which he has by his account
admitted to have received
or who alleges that any item in his account is
erroneous in respect of amount or in any other respect must give him notice
thereof
stating, so far as he is able, the amount sought to be charged, with
brief particulars thereof or, as the case may be, the grounds
for alleging that
the item is
erroneous.
Allowances
(O.43,
r.6)
6. In taking any account
directed by any judgment or order all just allowances shall be made without any
direction to that
effect.
Delay in
prosecution of accounts, etc. (O.43,
r.7)
7.-(1) If it appears to the
Court that there is 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 then make such order for staying the proceedings or for
expediting them or for the conduct thereof and for costs
as the circumstances
require.
(2) The Court may direct
any party or appoint a suitable person to take over the conduct of the
proceedings in question and to carry
out any directions made by an order under
this rule and may make such order as it thinks fit as to the payment of any
costs
incurred.
Distribution
of fund before all persons entitled are
ascertained (O.43,
r.8)
8. Where some of the persons
entitled to share in a fund are ascertained, and difficulty or delay has
occurred or is likely to occur
in ascertaining the other persons so entitled,
the Court may order or allow immediate payment of their shares to the persons
ascertained
without reserving any part of those shares to meet the subsequent
costs of ascertaining those other
persons.
Guardian’s
accounts (O.43,
r.9)
9. The accounts of a person
appointed guardian of a minor’s estate must be verified and passed in such
manner as the Court may
direct.
O.44
ORDER 44
PROCEEDINGS UNDER JUDGMENTS AND ORDERS
Application
to Orders (O.44,
r.1)
1. In this Order references to
a judgment include references to an
order.
Service
of notice of judgment on person not a
party (O.44,
r.2)
2.-(1) Where in an action
for-
(a) the administration of the estate of a deceased person, or
(b) the execution of a trust, or
(c) the sale of any property,
the
Court gives a judgment or makes a direction which affects persons not parties to
the action, the Court may when giving the judgment
or at any stage of the
proceedings under the judgment direct notice of the judgment to be served on any
such person and any person
so served shall, subject to paragraph (4), be bound
by the judgment as if he had originally been a party to the
action.
(2) Every notice of a
judgment for service under this rule must be indorsed with a memorandum in Form
No. 21 in Appendix A and accompanied
by a form of acknowledgment of service in
Form No. 2 in Appendix A with such modifications as may be
appropriate.
(3) A person served
with notice of a judgment may, within one month after service of the notice on
him, and without acknowledging
service apply to the court to discharge, vary or
add to the judgment.
(4) A person
served with notice of a judgment may, after acknowledging service of the notice,
attend the proceedings under the
judgment.
(5) Order 12, rules 1 to
3, shall apply in relation to the acknowledgment of service of a notice of
judgment as if the judgment were
a writ, and the person by whom the notice is
served were the plaintiff and the person on whom it is served a
defendant.
Directions
by the Court (O.44,
r.3)
3.-(1) Where a judgment given
in a cause or matter contains directions which make it necessary to proceed in
chambers under the judgment
the Court may, when giving the judgment or at any
time during proceedings under the judgment, give further directions for the
conduct
of those proceedings, including, in particular, directions with respect
to-
(a) the manner in which any account or inquiry is to be prosecuted,
(b) the evidence to be adduced in support thereof,
(c) the preparation and service on the parties to be bound thereby of the draft of any deed or other instrument which is directed by the judgment to be settled by the Court and the service of any objections to the draft,
(d) the parties required to attend all or any part of the proceedings,
(e) the representation by the same barristers and solicitors of parties who constitute a class and by different barristers and solicitors of parties who ought to be separately represented, and
(f) the time within which each proceeding is to be taken, and may fix a day or days for the further attendance of the parties.
(2)
The Court may revoke or vary any directions given under this
rule.
Application
of rr. 5 to 8 (O.44,
r.4)
4.-Rules 5 to 8
apply-
(a) where in proceedings for the administration under the direction of the Court of the estate of a deceased person the judgment directs any account of debts or other liabilities of the deceased’s estate to be taken or any inquiry for next of kin or other ascertained claimants to be made, and
(b) where in proceedings for the execution under the direction of the court of a trust the judgment directs any such inquiry to be made, and those rules shall, with the necessary modifications, apply where in any other proceedings the judgment directs an account of debts or other liabilities to be taken or any inquiry to be made.
Advertisements
for creditors and other claimants (O.44,
r.5)
5. The court may, when giving
a judgment or at any stage of proceedings under a judgment, give directions for
the issue of advertisements
for creditors or other claimants and may fix the
time within which creditors and claimants may
respond.
Examination
of claims (O.44,
r.6)
6.-(1) Where an account of
debts or other liabilities of the estate of a deceased person has been directed,
such party as the Court
may direct must-