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SUPREME COURT
(CHAPTER 5)
RULES OF THE SUPREME COURT
S 5/90
Amended by
S 23/90
S 14/91
S 30/91
S 35/92
S 41/92
S 28/96
S 7/99
S 8/99
S 37/99
S 31/00
S 77/00
S 92/00
REVISED EDITION 2001
(31st January 2001)
SUBSIDIARY LEGISLATION
RULES OF THE SUPREME COURT
ARRANGEMENTS OF ORDERS, RULES AND LIST OF FORMS
Rule
ORDER 1
CITATION, APPLICATION, INTERPRETATION AND FORMS
1. Citation.
2. Application.
3. Application of Chapter 4.
4. Definitions.
5. Construction of references to Orders, rules etc.
6. Forms.
7. Business by post, fax or electronic mail.
ORDER 2
EFFECT OF NON-COMPLIANCE
1. Non-compliance with rules.
2. Application to set aside for irregularity.
ORDER 3
TIME
1. “Month” means calendar month.
2. Reckoning periods of time.
3. Time expires on weekly holiday etc.
4. Extension etc. of time.
5. Notice of intention to proceed after year’s delay.
ORDER 4
CONSOLIDATION PROCEEDINGS
1. Consolidation etc. of causes or matters.
ORDER 5
MODE OF BEGINNING CIVIL PROCEEDING IN HIGH COURT
1. Mode of beginning civil proceedings.
2. Proceedings which must be begun by writ.
3. Proceedings which must be begun by originating summons.
4. Proceedings which may be begun by writ or originating summons.
5. Proceedings to be begun by motion or petition.
6. Right to sue in person.
ORDER 6
WRITS OF SUMMONS: GENERAL PROVISIONS
1. Form of writ.
2. Indorsement of claim.
3. Indorsement as to capacity.
4. Indorsement as to solicitor and address.
5. Concurrent writ.
6. Issue of writ.
7. Duration and renewal of writ.
ORDER 7
ORIGINATING SUMMONSES: GENERAL PROVISIONS
1. Application.
2. Form of summons etc.
3. Contents of summons.
4. Concurrent summons.
5. Issue of summons.
6. Duration and renewal of summons.
7. Ex parte originating summons.
ORDER 8
ORGINATING AND OTHER MOTIONS: GENERAL PROVISIONS
1. Application.
2. Notice of motion.
3. Form and issue of notice of motion.
4. Service of notice of motion with writ etc.
5. Adjournment of hearing.
ORDER 9
PETITIONS: GENERAL PROVISIONS
1. Application.
2. Contents of petition.
3. Fixing time for hearing petition.
4. Certain applications not to be made by petition.
ORDER 10
SERVICE OF ORIGINATING PROCESS: GENERAL PROVISIONS
1. General provisions.
2. Service of writ on agent of overseas principal.
3. Service of writ in pursuance of contract.
4. Service of writ in certain actions for possession of immovableproperty.
5. Service of originating summons, petition and notice of motion.
ORDER 11
SERVICE OF PROCESS ETC. OUT OF THE JURISDICTION
1. Principal cases in which service of notice of writ out ofjurisdiction is permissible.
2. Service out of the jurisdiction in certain actions of contract.
3. Leave for service of notice of writ.
4. Application for, and grant of, leave to serve notice of writ out ofjurisdiction.
5. Service of notice of writ abroad: General.
6. Service of notice of writ abroad through foreign governments,judicial authorities and Bruneian consuls.
7. Service of notice of writ in certain actions under certain writtenlaw.
8. Undertaking to pay expenses of service incurred by Minister.
9. Service of originating summons, petition, notice of motion etc.
ORDER 12
ENTRY OF APPEARANCE TO WRIT OR ORIGINATING SUMMONS
1. Mode of entering appearance.
2. Memorandum of appearance.
3. Procedure on receipt of requisite documents.
4. Time limited for appearing.
5. Late appearance.
6. Conditional appearance.
7. Application to set aside writ etc.
8. Appearance to originating summons.
ORDER 13
DEFAULT OF APPEARANCE TO WRIT
1. Claim for liquidated demand.
2. Claim for unliquidated damages.
3. Claim in detinue.
4. Claim for possession of immovable property.
5. Mixed claims.
6. Other claims.
7. Proof of service of writ.
8. Setting aside judgment.
ORDER 14
SUMMARY JUDGMENT
1. Application by plaintiff for summary judgment.
2. Manner in which application under rule 1 must be made.
3. Judgment for plaintiff.
4. Leave to defend.
5. Application for summary judgment on counter-claim.
6. Directions.
7. Costs.
8. Right to proceed with residue of action or counter-claim.
9. Judgment for delivery up of movable property.
10. Relief against forfeiture.
11. Setting aside judgment.
ORDER 14A
DETERMINATION OF LAW OR CONSTRUCTION
1. Question of law.
2. Application.
ORDER 15
CAUSES OF ACTION, COUNTER-CLAIMS AND PARTIES
1. Joinder of causes of action.
2. Counter-claim against plaintiff.
3. Counter-claim against additional parties.
4. Joinder of parties.
5. Court may order separate trials etc.
6. Misjoinder and non-joinder of parties.
6A. Proceedings against estates.
7. Change of parties by reason of death etc.
8. Provisions consequential on making of order under rule 6 or 7.
9. Failure to proceed after death of party.
10. Action for possession of immovable property.
11. Relator actions.
12. Representative proceedings.
13. Representation of interested persons who cannot be ascertainedetc.
14. Representation of beneficiaries by trustees etc.
15. Representation of deceased person interested in proceedings.
16. Declaratory judgment.
17. Conduct of proceedings.
ORDER 16
THIRD PARTY AND SIMILAR PROCEEDINGS
1. Third party notice.
2. Application for leave to issue third party notice.
3. Issue and service of, and entry of appearance to third partynotice.
4. Third party directions.
5. Default of third party etc.
6. Setting aside third party proceedings.
7. Judgment between defendant and third party.
8. Claims and issues between a defendant and some other party.
9. Claims by third and subsequent parties.
10. Offer of contribution.
11. Counter-claim by defendant.
ORDER 17
INTERPLEADER
1. Entitlement to relief by way of interpleader.
2. Claim to goods etc. taken in execution.
3. Mode of application.
4. Service of summons.
5. Powers of Court hearing summons.
6. Power to order sale of goods taken in execution.
7. Power to stay proceedings.
8. Other powers.
9. One order in several causes or matters.
10. Discovery.
11. Trial of interpleader issue.
ORDER 18
PLEADINGS
1. Service of statement of claim.
2. Service of defence.
3. Service of reply and defence to counter-claim.
4. Pleadings subsequent to reply.
5. Pleadings: Formal requirements.
6. Facts, not evidence, to be pleaded.
7. Matters which must be specifically pleaded.
7A. Conviction.
8. Matter may be pleaded whenever arising.
9. Departure.
10. Points of law may be pleaded.
11. Particulars of pleading.
12. Admissions and denials.
13. Denial by joinder of issue.
14. Statement of claim.
15. Defence of tender.
16. Defence of set-off.
17. Counter-claim and defence to counter-claim.
18. Striking out pleadings and indorsements.
19. Close of pleadings.
20. Filing of pleadings.
21. Trial without pleadings.
22. Saving for defence under Merchant Shipping Act.
ORDER 19
DEFAULT OF PLEADINGS
1. Default in service of statement of claim.
2. Default of defence: Claim for liquidated demand.
3. Default of defence: Claim for unliquidated damages.
4. Default of defence: Claim in detinue.
5. Default of defence: Claim for possession of immovable property.
6. Default of defence: Mixed claim.
7. Default of defence: Other claims.
8. Default of defence to counter-claim.
9. Setting aside judgment.
ORDER 20
AMENDMENT
1. Amendment of writ without leave.
2. Amendment of appearance.
3. Amendment of pleadings without leave.
4. Application for disallowance of amendment made without leave.
5. Amendment of writ or pleading with leave.
6. Amendment of other originating process.
7. Amendment of certain other documents.
8. Failure of amend after order.
9. Mode of amendment of writ etc.
10. Amendment of judgment and orders.
11. Amendment of agreement.
ORDER 21
WITHDRAWAL AND DISCONTINUANCE
1. Withdrawal of appearance.
2. Discontinuance of action etc. without leave.
3. Discontinuance of action etc. with leave.
4. Effect of discontinuance.
5. Stay of subsequent action until costs paid.
6. Withdrawal of summons.
ORDER 22
PAYMENT INTO AND OUT OF COURT
1. Payment into Court.
2. Payment in by defendant who has counterclaim.
3. Acceptance of money paid into Court.
4. Order for payment out of money accepted required in certaincases.
5. Money remaining in Court.
6. Counterclaim.
7. Non-disclosure of payment into Court.
8. Money paid into Court under Order.
9. Payment out of money paid into Court under Exchange ControlAct.
10. Person to whom payment to be made.
11. Payment out: Small Intestate Estates.
12. Payment of hospital expenses.
13. Written offers without prejudice save as to costs.
ORDER 22A
OFFER TO SETTLE
1. Offer to settle.
2. Timing.
3. Acceptance.
4. Without prejudice.
5. Non-disclosure.
6. Acceptance.
7. Disability.
8. Compliance.
9. Costs.
10. Joint and several liability.
11. Offer to contribute.
12. Discretion of Court.
13. Counter-claims and third party claims.
ORDER 23
SECURITY FOR COSTS
1. Security for costs of action etc.
2. Manner of giving security.
3. Saving for written law.
ORDER 24
DISCOVERY AND INSPECTION OF DOCUMENTS
1. Mutual discovery of documents.
2. Discovery by parties without Order.
3. Order for discovery.
4. Order for determination of issue etc. before discovery.
5. Form of list and affidavit.
6. Defendant entitled to copy of co-defendant’s list.
7. Order for discovery of particular documents.
7A. Disclosure by non-parties.
7B. Disclosure in cases of personal injury or death.
7C. Provisions supplementary to rules 7A and 7B.
7D. Application under rule 7A or 7B.
8. Discovery to be ordered only if necessary.
9. Inspection of documents referred to in list.
10. Inspection of documents referred to in pleadings andaffidavits.
11. Order for production for inspection.
11A. Copies of documents.
12. Order for production to Court.
13. Production to be ordered only if necessary etc.
14. Production of business books.
14A. Use of documents.
15. Document disclosure of which would be injurious to publicinterest: Saving.
16. Failure to comply with requirement for discovery etc.
17. Revocation and variation of Orders.
ORDER 25
SUMMONS FOR DIRECTIONS
1. Summons for directions.
2. Duty to consider all matters.
3. Particular matters for consideration.
4. Admissions and agreements to be made.
5. Limitation of right of appeal.
6. Duty to give all information at hearing.
7. Duty to make all interlocutory applications on summons fordirections.
8. Automatic direction in personal injury action.
ORDER 26
INTERROGATORIES
1. Discovery by interrogatories.
2. Discovery by interrogatories without leave of Court.
3. Interrogatories where party is a body of persons.
4. Statement as to party etc. required to answer.
5. Objection to answer on ground of privilege.
6. Insufficient answer.
7. Failure to comply with Order.
8. Use of answers to interrogatories at trial.
9. Revocation and variation of Orders.
ORDER 27
ADMISSIONS
1. Admission of case of other party.
2. Notice to admit facts.
3. Judgment on admission of facts.
4. Admission and production of documents specified in list ofdocuments.
5. Notices to admit or produce documents.
ORDER 28
ORGINATING SUMMONS PROCEDURE
1. Application.
1A. Affidavit evidence.
2. Fixing time for attendance of parties before Court.
3. Notice of first hearing etc.
4. Directions etc. by Court.
5. Adjournment of summons.
6. Applications affecting party in default of appearance.
7. Counter-claim by defendant.
8. Continuation of proceedings as if cause or matter begun bywrit.
9. Order for hearing or trial.
10. Failure to prosecute proceedings with despatch.
11. Abatement etc. of action.
ORDER 29
PART I
INTERLOCUTORY INJUNCTIONS, INTERIM PRESERVATION OF PROPERTY ETC.
1. Application for injunction.
1A. Cross examination as to assets.
2. Detention, preservation etc. of subject matter of cause ormatter.
3. Power to order samples to be taken etc.
4. Sale of perishable property etc.
5. Order for early trial.
6. Recovery of movable property subject to lien etc.
7. Directions.
7A. Property.
8. Allowance of income of properly pendente lite .
9. Injunctions.
PART II
INTERIM PAYMENTS
10. Interpretation of Part II.
11. Application for interim payment.
12. Order for interim payment in respect of damages.
13. Order for interim payment in respect of sums other thandamages.
14. Manner of interim payment.
15. Directions on application under rule 11.
16. Non-disclosure of interim payment.
17. Payment into Court in satisfaction.
18. Adjustment on final judgment or order or on discontinuance.
19. Counter-claim and other proceedings.
ORDER 30
RECEIVERS
1. Application for receiver and injunction.
2. Giving of security by receiver.
3. Remuneration of receiver.
3A. Service.
4. Receiver’s account.
5. Payment of balance etc. by receiver.
6. Default by receiver.
7. Directions.
ORDER 31
SALES ETC. OF IMMOVABLE PROPERTY BY ORDER OF COURT
1. Power to order sale of immovable property.
2. Manner of carrying out sale.
3. Certifying result of sale.
4. Charge, exchange or partition under order of the Court.
5. Reference of matters to a solicitor.
6. Objection to opinion of solicitor.
ORDER 32
APPLICATION AND PROCEEDINGS IN CHAMBERS
1. Mode of making application.
2. Issue of summons.
3. Service of summons.
4. Adjournment of hearing.
5. Proceeding in absence of party failing to attend.
6. Order make ex parte may be set aside.
7. Revoked .
8. Application for leave to institute certain proceedings.
9. Jurisdiction of Registrar.
10. Reference of matter to Judge.
11. Power to direct hearing in Court.
12. Obtaining assistance of experts.
13. Notice of filing etc. of affidavit.
14. Disposal of matters in Chambers.
15. Papers for use of Court etc.
16. Uncontested chamber applications.
17. Notes of proceedings in Chambers.
ORDER 33
MODE OF TRIAL
1. Mode of trial.
2. Time etc. at trial of questions or issues.
3. Determining the mode of trial.
4. Dismissal of action etc. after decision of preliminary issue.
4A. Split trial offer on liability.
ORDER 34
SETTING DOWN FOR TRIAL ACTION BEGUN BY WRIT
1. Application and interpretation.
2. Time for setting down action.
3. Lodging documents when setting down.
4. Directions relating to lists.
5. Notification of setting down.
6. Abatement etc. of action.
7. Notice of trial.
8. Notice of trial by defendant. Application to dismiss for want ofprosecution.
9. The Court bundle.
10. Parties to appear by special notice.
ORDER 34A
PRE-TRIAL CONFERENCES
1. Power to make orders.
2. Directions as to pre-trial conferences.
3. Notification.
4. Attendance.
5. Adjournments.
6. Failure to appear.
7. Non-disclosure.
ORDER 35
PROCEEDINGS AT TRIAL
1. Failure to appear by both parties or one of them.
2. Judgment etc. given in absence of party may be set aside.
3. Adjournment of trial.
4. Order of speeches.
5. Inspection by Judge.
6. Death of party before giving of judgment.
7. Entries to be made by Registrar or proper officer of the Court.
8. List of exhibits.
9. Custody of exhibit after trial.
10. Impounded documents.
11. Continuation of trial by another Judge.
ORDER 36
TRIALS BEFORE AND INQUIRIES BY REGISTRAR
1. Power to order trial before Registrar.
2. Trial before, and inquiry by Registrar.
ORDER 37
ASSESSMENT OF DAMAGES
1. Assessment of damages by Registrar.
2. Certificate of amount of damages.
3. Default judgment against some but not all defendants.
4. Power to order Assessment by Registrar or at trial.
5. Assessment of value.
6. Assessment of damages to time of assessment.
7. Application of rules 7 to 10.
8. Provisional damages.
9. Offer to submit.
10. Application for further damages.
ORDER 38
EVIDENCE
PART I
GENERAL EVIDENCE
1. General rule: Witness to be examined orally.
2. Evidence by affidavit.
2A. Exchange of witness statements.
3. Evidence of particular facts.
4. Limitation of expert evidence.
5. Limitation of plans etc. in evidence.
6. Expert evidence in action arising out of accident.
7. Revocation or variation of orders under rules 2 to 6.
8. Application to trials of issues, references etc.
9. Depositions: when receivable in evidence at trial.
10. Court documents admissible or receivable in evidence.
11. Evidence of consent of new trustee to act.
12. Evidence at trial may be used in subsequent proceedings.
13. Order to produce document at proceeding other than trial.
14. Form and issue of writ of subpoena.
15. More than one name may be included in one writ of subpoena adtestificandum .
16. Writ of subpoena duces tecum .
17. Amendment of writ of subpoena.
18. Service of writ of subpoena.
19. Duration of writ of subpoena.
20. Court records.
21. Attendance of prisoner as witness or party.
22. Tender of expenses.
23. Affidavit of service of writ of subpoena.
PART II
HEARSAY EVIDENCE
24. Interpretation.
25. Hearsay notices.
26. Cross examination on hearsay evidence.
27. Credibility.
28. Jurisdiction.
PART III
EXPERT EVIDENCE
29. Interpretation.
30. Restrictions on expert evidence.
31. Direction that report be disclosed.
32. Meeting of experts.
33. Disclosure of part of expert evidence.
34. Expert evidence contained in statement.
35. Expert report disclosed by another party.
36. Time for putting expert report in evidence.
37. Revocation and variation of directions.
ORDER 39
EVIDENCE BY DEPOSITION: EXAMINERS OF THE COURT
1. Power to order depositions to be taken.
2. Where person to be examined is out of the jurisdiction.
3. Order for issue of letter of request.
3A. Examination not on oath.
4. Enforcing attendance of witness at examination.
5. Refusal of witness to attend, be sworn etc.
6. Appointment of time and place for examination.
7. Examiner to have certain documents.
8. Conduct of examination.
9. Examination of additional witnesses.
10. Objection to questions.
11. Taking of depositions.
12. Time taken by examination to be indorsed on depositions.
13. Special report by examiner.
14. Order for payment of examiner’s fees.
15. Perpetuation of testimony.
ORDER 40
COURT EXPERT
1. Appointment of expert to report on certain question.
2. Report of court expert.
3. Experiments and tests.
4. Cross-examination of court expert.
5. Remuneration of court expert.
6. Calling of expert witnesses.
ORDER 41
AFFIDAVITS
1. Form of affidavit.
2. Affidavit by two or more deponents.
3. Affidavit by illiterate or blind person.
4. Use of defective affidavit.
5. Contents of affidavit.
6. Scandalous etc. matter in affidavits.
7. Alterations in affidavits.
8. Affidavit not to be sworn before solicitor of party etc.
9. Filing of affidavits.
10. Use of original affidavit or office copy.
11. Document to be used in conjunction with affidavit to be exhibitedto it.
12. Affidavit taken outside Brunei Darussalam admissible without proofof seal etc.
ORDER 42
JUDGMENTS AND ORDERS
1. Delivery of judgment.
2. Written judgment to be filed.
3. Judgment of absent Judge.
4. Entry of judgment in Cause Book.
5. Form of judgment etc.
6. Judgment etc. requiring act to be done: Time for doing it.
7. Date from which judgment or order takes effect.
8. Preparation of judgment or order.
9. Orders required to be drawn up.
10. Drawing up and entry of judgments and orders.
11. Duplicates of judgments and orders.
12. Interest on judgment debts.
13. Interest on debts and damages.
ORDER 43
ACCOUNTS AND INQUIRIES
1. Summary order for account.
2. Court may direct taking of accounts etc.
3. Directions as to manner of taking account.
4. Account to be made, verified etc.
5. Notice to be given of alleged commissions etc. in account.
6. Allowances.
7. Delay in prosecution of accounts etc.
8. Distribution of fund before all persons entitled areascertained.
ORDER 44
PROCEEDINGS UNDER JUDGMENTS AND ORDERS ON THE EQUITY SIDE
1. Application to proceedings under an order.
2. Documents to be filed at registry: Summons to proceed.
3. Service of notice of judgment on person not a party.
4. Directions by Court.
5. Court may require parties to be represented by same solicitor.
6. Court may require parties to be represented by differentsolicitors.
7. Leave to attend proceedings etc.
8. Judgment requiring deed to be settled by Court: Directions.
9. Application of rules 10 to 17.
10. Advertisements for creditors and other claimants.
11. Failure to claim within specified time.
12. Examination etc. of claims.
13. Adjudication on claims.
14. Adjournment of adjudications.
15. Service of notice of judgment on certain claimants.
16. Notice etc. of claims allowed.
17. Service of notices.
18. Interest on debts.
19. Interest on legacies.
20. Determination by judge of question arising before Registrar.
21. Registrar’s certificate.
22. Settling and filing of Registrar’s certificate.
23. Discharge or variation of Registrar’s certificate.
24. Further consideration of cause or matter in Chambers.
25. Further consideration of cause or matter in Court.
ORDER 45
ENFORCEMENT OF JUDGMENTS AND ORDERS
1. Enforcement of judgment etc. for payment of money.
2. Judgment etc. for payment of money to person resident outside the scheduled territories.
3. Enforcement of judgment for possession of immovable property.
4. Enforcement of judgment for delivery of movable property.
5. Enforcement of judgment to do or abstain from doing an act.
6. Judgment etc. requiring act to be done: Order fixing time for doingit.
7. Service of copy of judgment etc. prerequisite to enforcement underrule 5.
8. Court may order act to be done at expense of disobedient party.
9. Execution by or against person not being a party.
10. Conditional judgment: Waiver.
11. Matter occurring after judgment: Stay of execution etc.
12. Forms of writs.
13. Enforcement of judgments and orders for recovery of money etc.
ORDER 46
WRITS OF EXECUTION: GENERAL
1. Definition.
2. When leave to issue any writ of execution is necessary.
3. Application for leave to issue writ.
4. Issue of writ of execution.
5. Writ and praecipe where Exchange Control Act applies.
6. Duration and renewal of writ of execution.
7. Fees, expenses etc. to be levied.
8. Costs of writ.
9. Satisfaction by consent.
10. Where consent refused.
11. Deposit costs of execution with Sheriff.
12. Where Sheriff in possession more than 14 days.
13. Proper officer to give receipt.
Duties of Sheriff
14. Time of lodgment to be forthwith indorsed on writ.
15. Time of execution.
16. Notice of seizure and inventory.
17. Proper officer to keep records and to prepare statement ofaccounts.
18. Sheriff to give information if required.
19. Date of arrest to be indorsed.
20. Sheriff may be required to show cause for neglect of duty.
21. Payment out.
Sale by Sheriff
22. Sheriff to sell.
23. Sale by public auction.
24. Where property exceeds $2,000 sale by licensed auctioneer.
25. Negotiable instruments.
26. Sheriff may execute or indorse documents.
27. Interpretation of terms.
ORDER 47
WRITS OF SEIZURE AND SALE
1. Power to stay execution by writ of seizure and sale.
2. Separate writs to enforce payment of costs etc.
3. Where landlord claims arrears of rent of premises where propertyseized.
4. After seizure, dealings with property void.
5. Withdrawal and suspension of writ.
6. Immovable property.
7. Sale of immovable property.
ORDER 48
EXAMINATION OF JUDGMENT DEBTOR ETC.
1. Order for examination of judgment debtor.
2. Examination of party liable to satisfy the judgment.
3. Registrar to make record of debtor’s statement.
ORDER 49
GARNISHEE PROCEEDINGS
1. Attachment of debt due to judgment debtor.
2. Application for order.
3. Service and effect of order to show cause.
4. No appearance or dispute of liability by garnishee.
5. Dispute of liability by garnishee.
6. Claims of third persons.
7. Judgment creditor resident outside scheduled territories.
8. Discharge of garnishee.
9. Money in Court.
10. Costs.
ORDER 50
CHARGING ORDERS, STOP ORDERS ETC.
1. (There is no rule 1).
2. Order imposing charge on securities.
3. Application for order under rule 2.
4. Service of notice of order to show cause.
5. Effect of order to show cause.
6. Making and effect of charging order absolute.
7. Discharge etc. of charging order.
8. Money in Court: Charging Order.
9. Registrar etc. may grant injunction ancillary to chargingorder.
9A. Enforcement of charging order by sale.
10. Securities not in Court: Stop notice.
11. Effect of stop notice.
12. Amendment of stop notice.
13. Withdrawal etc. of stop notice.
14. Order prohibiting transfer etc. of securities.
ORDER 51
RECEIVERS: EQUITABLE EXECUTION
1. Appointment of receivers by way of equitable execution.
2. Registrar may appoint receiver etc.
3. Application of rules as to appointment of receiver etc.
ORDER 51A
RATEABLE DISTRIBUTION
1. Proceeds of execution sale to be distributed rateably amongjudgment creditors.
2. Method of subsequent attachment.
3. Property attached in execution of order or judgment of severalcourts.
4. Immovable property.
ORDER 52
COMMITAL
1. Committal for contempt of court.
2. Application to court.
3. Application for order after leave to apply granted.
4. Saving for power to commit without application for purpose.
5. Provisions as to hearing.
6. Power to suspend execution of committal order.
7. Discharge of person committed.
8. Saving for other powers.
9. Form of warrant for committal.
10. Reference to High Court.
ORDER 53
APPLICATION FOR ORDER OF MANDAMUS, PROHIBITION, CERTIORARI ETC.
1. No application for order of mandamus etc. without leave.
1A. Time for applying for leave.
2. Mode of applying for order of mandamus etc.
3. Statements and affidavits.
4. Right to be heard in opposition.
5. Application for order of certiorari to quashproceedings.
6. Saving for person acting in obedience to mandamus.
7. Order made by Judge in Chambers may be set aside etc.
ORDER 54
APPLICATION FOR WRIT OF HABEAS CORPUS
1. Application for writ of habeas corpus ad subjiciendum .
2. Power of court to whom ex parte application made.
3. Copies of affidavits to be supplied.
4. Power to order release of person restrained.
5. Directions as to return of writ.
6. Service of writ and notice.
7. Return to the writ.
8. Procedure at hearing of writ.
9. Form of writ.
ORDER 55
APPEALS FROM SUBORDINATE COURTS AND STATUTORY BODIES
1. Entry of Appeal.
2. Memorandum of Appeal.
3. Notice of Cross-Appeal.
4. Amendments.
5. Appellant not appearing.
6. Withdrawal of appeal.
7. Notice of appeal by respondent where notice of appeal withdrawn orappeal not entered.
8. High Court may direct service of notice on person not served.
9. Interest.
10. Pronouncement of judgment.
11. Decision on appeal to be sent to Court below.
12. Stay of execution.
13. Appeal from persons or body of persons.
ORDER 56
APPEALS FROM REGISTRAR AND JUDGE
1. Appeal from certain decisions of Registrar to Judge inChambers.
2. Appeal from Judge.
ORDER 57
APPEALS TO THE COURT OF APPEAL
1. Application of order to appeals.
2. Application of order to applications for new trial.
3. Notice of appeal.
4. Time for appealing.
5. Record of proceedings.
6. Petition of appeal.
7. Respondent’s notice.
8. Amendment of petition of appeal and respondent’s notice.
9. Record of appeal.
10. Directions of the Court as to service.
11. Withdrawal of notice.
12. Respondent’s notice where appeal not proceeded with.
13. General powers of the Court.
14. Powers of the Court as to new trial.
15. Stay of execution etc.
16. Application to Court of Appeal.
17. Extension of time.
18. Appellant or respondent not appearing.
19. Powers of single Judge and Registrar.
ORDER 58
(There is no Order 58)
ORDER 59
COSTS
Preliminary
1. Interpretation.
2. Application.
Entitlement to Costs
3. When costs to follow the event.
4. Stage of proceedings at which costs to be dealt with.
5. Special matters to be taken into account in exercisingdiscretion.
6. Restriction of discretion to order costs.
7. Costs arising from misconduct or neglect.
7A. Costs of taxations.
8. Personal liability of solicitor for costs.
9. Fractional or gross sum in place of taxed costs.
10. When a party may sign judgment for costs without an order.
11. When order for taxation of costs not required.
12. Powers of Registrar to tax costs.
13. Supplementary powers of Registrar.
14. Extension etc. of time.
15. Interim certificates.
16. Power to Registrar where party liable to be paid and to paycosts.
17. Taxation of bill of costs comprised in account.
18. Registrar to fix certain fees payable to conveyancing counseletc.
18A. Litigants in person.
19. Fees for more than one counsel.
Procedure on Taxation
20. Mode of beginning proceedings for taxation.
21. Notification of time appointed for taxation.
22. Delivery of bills etc.
23. Short and urgent taxation.
24. Form of bill of costs.
25. Provisions as to taxation proceedings.
26. Powers of Registrar taxing costs payable out of fund.
Assessment of Costs
27. Costs payable to one party by another or out of a fund.
28. Costs payable to a solicitor by his own client.
29. Costs payable to solicitor where money recovered by or on behalfof infant etc.
30. Costs payable to a trustee out of the trust fund etc.
31. Scale of costs.
Certificate
32. Certificate.
33. Certificate of Registrar to be conclusive unless set aside.
Review
34. Application to Registrar for review.
35. Review by Registrar.
36. Review of Registrar’s certificate by a Judge.
APPENDIX 1
SCALE OF COSTS
PART I — INSTITUTION ETC. OF PROCEEDINGS.
PART II — PROCEEDINGS IN CHAMBERS AND INTERLOCUTORY MATTERS IN OPENCOURT.
PART III — DISCOVERY AND INSPECTION.
PART IV — PREPARATION FOR TRIAL OR HEARING WHETHER IN OPENCOURT OR OTHERWISE.
PART V — TRIAL OR HEARING.
PART VI — TAXATION.
PART VII — EXECUTION.
PART VIII — GENERAL AND MISCELLANEOUS.
PART IX — ADDITIONAL PROCEEDINGS ARISING ONLY INCONNECTION WITH ADMIRALTY CAUSES AND MATTERS.
PART X — GENERAL
1. Discretionary costs.
2. Fees to counsel.
3. Item to be authorised, certified etc.
4. Attendances in chambers.
5. Attendances before the Registrar.
6. Copies of documents.
APPENDIX 2
FIXED COSTS
PART I — COSTS ON JUDGMENT WITHOUT TRIAL FOR A LIQUIDATED SUM.
PART II — BASIC COSTS.
PART III — COSTS ON JUDGMENT WITHOUT TRIAL FORPROSSESSION OF LAND.
PART IV — MISCELLANEOUS. BASIC COSTS. ADDITIONAL COSTS.
ORDER 60
THE REGISTRY
1. Distribution of business.
2. Books to be kept in the Registry.
3. Date of filing to be marked etc.
4. Right to inspect etc. certain documents filed in Registry.
5. Deposit of document.
6. (There is no rule 6).
7. (There is no rule 7).
8. (There is no rule 8).
9. Restriction on removal of documents.
ORDER 61
OFFICE HOURS
1. High Court Registry: Days on which open and office hour.
ORDER 62
SERVICE OF DOCUMENTS
1. When personal service required.
2. Service by process server or other person.
3. Personal Service: How effected.
4. Service on corporations.
5. Substituted service.
6. Ordinary service: How effected.
7. Service on Minister etc. in proceedings which are not by or againstthe Government.
8. Effect of service after certain hour.
9. Affidavit of service.
10. No service required in certain cases.
11. Service of notices from High Court.
12. Service where no appearance or address for service.
13. Service upon solicitor or party formerly appearing in person.
ORDER 63
PAPER, PRINTING, NOTICES AND COPIES
1. Quality and size of paper.
2. Regulations as to printing etc.
3. Copies of documents for other party.
4. Requirements as to copies.
ORDER 63A
ELECTRONIC FILING AND SERVICE
1. Definitions.
2. Electronic filing service.
3. Network.
4. Application.
5. Registered user.
6. Authentication code.
7. Security.
8. Electronic filing.
9. Signing.
10. Date of filing.
11. Time for service.
12. Service of documents.
13. Notification by Registrar.
14. Fees.
15. Presumptions.
16. Discrepancy.
17. Application of Order.
ORDER 64
CHANGE OF SOLICITOR
1. Notice of change of solicitor.
2. Notice of appointment of solicitor.
3. Notice of intention to act in person.
4. Removal of solicitor from record at instance of another party.
5. Withdrawal of solicitor who has ceased to act for party.
6. Address for service of party whose solicitor is removed etc.
ORDER 65
SERVICE OF FOREIGN PROCESS
1. Definition.
2. Service of foreign legal process.
3. Service of foreign legal process under Civil ProcedureConvention.
4. Costs of service etc. to be certified by Registrar.
ORDER 66
OBTAINING EVIDENCE FOR FOREIGN COURTS ETC.
1. Jurisdiction of Registrar to make order.
2. Application for order.
3. Application by Attorney General in certain cases.
4. Person to take and manner of taking examination.
5. Dealing with deposition.
ORDER 67
RECIPROCAL ENFORCEMENT OF JUDGMENTS
1. Powers under relevant acts exercisable by Judge or Registrar.
2. Application for registration.
3. Evidence in support of application.
4. Security for costs.
5. Order for registration.
6. Register of judgments.
7. Notice of registration.
8. Indorsement of service.
9. Application to set aside registration.
10. Issue of execution.
11. Determination of certain questions.
12. Rules to have effect subject to orders of the Government.
13. Certified copy of High Court Judgment.
ORDER 68
(There is no Order 68)
ORDER 69
ARBITRATION PROCEEDINGS
1. Interpretation.
2. Matters for a Judge in Court.
3. Matters for Judge in Chambers of Registrar.
4. Special provisions as to applications to remit or set aside anaward.
4A. Appeals.
5. Service out of the jurisdiction of summons, notice etc.
6. Registration in High Court of foreign awards.
7. Enforcement.
ORDER 70
ADMIRALTY PROCEEDINGS
1. Application and interpretation.
2. Issue of writ and entry of appearance.
3. Service out of jurisdiction of notice of writ.
4. Warrant of arrest.
5. Caveat against arrest.
6. Remedy where property protected by caveat is arrested (without goodand sufficient reason).
7. Service of writ in action in rem .
8. Committal of solicitor failing to comply with undertaking.
9. Execution etc. of warrant of arrest.
10. Service on ships etc.: How effected.
11. Applications with respect to property under arrest.
12. Release of property under arrest.
13. Caveat against release and payment.
14. Duration of caveats.
15. Bail.
16. Interveners.
17. Preliminary acts.
18. Failure to lodge preliminary act: Proceedings against party indefault.
19. Special provisions as to pleadings in collision etc. actions.
20. Judgment by default.
21. Order for sale of ship: Determination of priority of claims.
22. Appraisement and sale of property.
22A. Undertaking as to expenses.
23. Payment into and out of Court.
24. Summons for directions.
25. Fixing date for trial etc.
26. Stay of proceedings in collision etc. actions until securitygiven.
27. Inspection of ship etc.
28. Shorthand note of oral evidence etc.
29. Examination of witnesses and other persons.
30. Issue of writ of subpoena.
31. Proceedings for apportionment of salvage.
32. Filing and service of notice of motion.
33. Agreement between solicitors may be made order of Court.
34. Originating summons: Procedure.
35. Limitation action: Parties.
36. Limitation action: Summons for decree or directions.
36A. Limitation action: Payment into Court.
37. Limitation action: Proceedings under decree.
38. Limitation action: Proceedings to set aside decree.
39. References to Registrar.
40. Hearing of reference.
41. Objection to decision on reference.
42. Drawing up and entry of judgments and orders.
43. Inspection of documents filed in Registry.
ORDER 71
(There is no Order 71)
ORDER 72
CONTENTIOUS PROBATE PROCEEDINGS
1. Application and interpretation.
2. Requirements in connection with issue of writ.
3. Service of writ out of the jurisdiction.
4. Intervener in probate action.
5. Citation to appear in proceedings.
6. Entry of appearance.
7. Citation to bring in grant.
8. Citations.
9. Affidavit of testamentary scripts.
10. Default of appearance.
11. Service of statement of claim.
12. Counterclaim.
13. Contents of pleadings.
14. Default of pleadings.
15. Discontinuance.
16. Compromise of action.
17. Case for motion.
18. Application to Court by summons.
19. Form of judgments and orders.
20. Administration Pendente Lite .
ORDER 73
DISABILITY
1. Interpretation.
2. Person under disability must sue, etc., by next friend or guardian ad litem .
3. Appointment of next friend or guardian ad litem .
4. Probate action: Appointment of next friend or guardian ad litem .
5. Probate action: Further provisions.
6. Appointment of guardian where person under disability does notappear.
7. Application to discharge or vary certain orders.
8. Admission not to be implied from pleading of person underdisability.
9. Discovery and interrogatories.
10. Compromise etc. by person under disability.
11. Approval of settlement.
12. Control of money recovered by person under disability.
13. Apportionment by Court.
14. Service of certain documents on person under disability.
ORDER 74
PARTNERS
1. Actions by and against firms within jurisdiction.
2. Disclosure of partners’ names.
3. Service of writ.
4. Entry of appearance in an action against firm.
5. Enforcing judgment or order against firm.
6. Enforcing judgment in action between partners etc.
7. Attachment of debts owed by firm.
8. Actions begun by originating summons.
9. Application to person carrying on business in another name.
10. Applications for orders charging partner’s interest inpartnership property etc.
ORDER 75
DEFAMATION ACTIONS
1. Application.
2. Indorsement of claim in libel action.
3. Obligation to give particulars.
4. Provision as to payment into Court.
5. Statement in open Court.
6. Interrogatories not allowed in certain cases.
7. Evidence in mitigation of damages.
ORDER 76
ADMINISTRATION AND SIMILAR ACTIONS
1. Interpretation.
2. Determination of questions etc. without administration.
3. Parties.
4. Grant of relief in action begun by originating summons.
5. Judgments and orders in administrations.
6. Conduct of sale of trust property.
ORDER 77
ACTIONS FOR SPECIFIC PERFORMANCE ETC. SUMMARY JUDGMENT
1. Application by plaintiff for summary judgment.
2. Manner in which application under rule 1 must be made.
3. Judgment for plaintiff.
4. Leave to defend.
5. Directions.
6. Costs.
7. Setting aside judgment.
ORDER 78
DEBENTURE HOLDERS’ ACTION: RECEIVER’S REGISTER
1. Receiver’s register.
2. Registration of transfers etc.
3. Application for rectification of receiver’s register.
4. Receiver’s register evidence of transfers etc.
5. Proof of title of holder of bearer debenture etc.
6. Requirements in connection with payments.
ORDER 79
CHARGE ACTIONS
1. Application and interpretation.
2. Claims for possession: Non-appearance by a defendant.
3. Action for possession or payment.
4. Action by writ: Judgment in default.
5. Foreclosure in redemption action.
ORDER 80
PROCEEDINGS RELATING TO INFANTS
1. Applications under Guardianship of Infants Act.
2. Defendants to summons.
3. Applications as to guardianship, maintenance etc.
ORDER 81
BILLS OF SALE ACT
1. Rectification of register.
2. Entry of satisfaction.
3. Restraining removal on sale of goods seized.
4. Search of register.
ORDER 82
(There is no Order 82)
ORDER 83
COMPANIES ACT
1. Interpretation.
2. Applications to be made by originating summons.
3. Applications to be made by originating summons or motion.
4. Applications to be made by originating motion.
5. Applications to be made by petition.
6. Entitlement of proceedings.
7. Summons for directions.
8. Inquiry as to debts: Company to make list of creditors.
9. Inspection of list of creditors.
10. Notice to creditors.
11. Advertisement of petition and list of creditors.
12. Affidavit as to claims made by creditors.
13. Adjudication of disputed claims.
14. Certifying list of creditors entitled to object to reduction.
15. Evidence of consent of creditor.
16. Time etc. of hearing of petition for confirmation ofreduction.
17. Restriction on taking effect of order.
ORDER 84
LODGMENT IN COURT AND PAYMENT TO SHERIFF
1. Interpretation.
Lodgment in Court
2. Payment into court.
3. Notice of lodgment.
4. Funds how lodged.
5. Crediting lodgment and dividends.
6. Interest on money lodged in court.
7. Computation of interest.
8. Applications with respect to funds in Court.
9. Payment out of funds in Court.
10. Name of payee to be stated in order.
11. Payment out on death of payee.
12. Transfer or investment of funds in Court.
13. Proof to Treasury before payment.
14. Copy of order or certificate to be sent to Treasury.
15. The Treasury to give certificate of funds in Court.
16. Publication of list of funds in Court.
17. Unclaimed funds in Court with Treasury.
Payment to Sheriff
18. Sheriff to keep an account book.
19. How money paid to Sheriff.
20. Payment in under judgment or order.
21. Money not required for making payments on day of receipt.
22. The Treasury to grant an imprest.
23. Cash book for imprest.
24. How payments from imprest to be made.
25. Proof before payment out.
26. Where money due to Government under any law.
27. When payment to be made by cheque.
ORDER 85
COURT FEES
1. Court fees.
2. Manner of payment of fees.
ORDER 86
MISCELLANEOUS
1. Language of documents.
2. Seal of the Court.
3. Rejection of irregular documents.
4. Inherent powers of the Court.
ORDER 87
REPEAL
1. (Repealed).
ORDER 88
SUMMARY PROCEEDINGS FOR POSSESSION OF LAND
1. Proceedings to be brought by originating summons.
2. Jurisdiction of Registrars.
3. Form of originating summons.
4. Affidavit in support.
5. Service of originating summons.
6. Application by occupier to be made a party.
7. Order for possession.
8. Writ of possession.
9. Setting aside order.
APPENDIX A
FORMS
No. 1 — ORDER FOR CONSOLIDATION.
No. 2 — WRIT OF SUMMONS.
No. 3 — WRIT OF SUMMONS NOTICE OF WHICH IS TO BE SERVED OUT OFJURISDICTION.
No. 4 — NOTICE OF PAYMENT INTO COURT: EXCHANGE CONTROLACT.
No. 5 — NOTICE OF RENEWAL OF WRIT.
No. 6 — ORIGINATING SUMMONS (WHERE APPEARANCEREQUIRED).
No. 7 — ORIGINATING SUMMONS (WHERE APPEARANCE NOT REQUIRED).
No. 8 — EX PARTE ORIGINATING SUMMONS.
No. 9 — NOTICE OFORIGINATING MOTION.
No. 10 — NOTICE OF MOTION.
No. 11 — NOTICE OF WRIT OF SUMMONS TO BE SERVED OUT OFJURISDICTION.
No. 12 — AFFIDAVIT FOR LEAVE TO SERVE WRIT OUT OFJURISDICTION.
No. 13 — ORDER FOR SERVICE OUT OF JURISDICTION.
No. 14 — REQUEST FOR SERVICE OF DOCUMENT ABROAD.
No. 15 — MEMORANDUM OF APPEARANCE.
No. 16 — MEMORANDUM OF CONDITIONAL APPEARANCE.
No. 17 — CERTIFICATE OF NON-APPEARANCE.
No. 18 — AFFIDAVIT ON APPLICATION UNDER ORDER 14 RULE 2, BY OR ONBEHALF OF PLAINTIFF.
No. 19 — NOTICE TO BE INDORSED ON COPY OF COUNTER- CLAIM.
No. 20 — MEMORANDUM OF APPEARANCE TO COUNTER-CLAIM.
No. 21 — MEMORANDUM OF APPEARANCE OF PERSON ADDED AS DEFENDANT.
No. 22 — THIRD PARTY NOTICE CLAIMING CONTRIBUTION OR INDEMNITY OROTHER RELIEF OR REMEDY.
No. 23 — THIRD PARTY NOTICE WHERE QUESTION OR ISSUE TO BEDETERMINED.
No. 24 — SUMMONS FOR THIRD PARTY.
No. 25 — MEMORANDUM OF APPEARANCE OF THIRD PARTY.
No. 26 — SUMMONS FOR LEAVE TO ISSUE A THIRD PARTYNOTICE.
No. 27 — ORDER FOR THIRD PARTY DIRECTIONS.
No. 28 — NOTICE BY CLAIMANT OF PROPERTY TAKEN INEXECUTION.
No. 29 — NOTICE BY SHERIFF OF PROPERTY TAKEN INEXECUTION.
No. 30 — NOTICE OF EXECUTION CREDITOR OF PROPERTY TAKEN INEXECUTION.
No. 31 — APPLICATION FOR AN INTERPLEADER SUMMONS: BY SHERIFF.
No. 32 — APPLICATION TO INTERPLEAD BY A PERSON UNDERLIABILITY.
No. 33 — INTERPLEADER SUMMONS.
No. 34 — JUDGMENT (OR ORDER) ON INTERPLEADER SUMMONS.
No. 35 — PARTICULARS SERVED PURSUANT TO REQUEST OR ORDER.
No. 36 — NOTICE OF DISCONTINUANCE.
No. 37 — NOTICE OF PAYMENT INTO COURT.
No. 38 — NOTICE OF ACCEPTANCE OF MONEY PAID INTO COURT.
No. 39 — NOTICE REQUIRING AFFIDAVIT VERIFYING LIST OF DOCUMENTS.
No. 40 — LIST OF DOCUMENTS.
No. 41 — AFFIDAVIT VERIFYING LIST OF DOCUMENTS.
No. 42 — NOTICE TO INSPECT DOCUMENTS.
No. 43 — NOTICE TO PRODUCE DOCUMENTS REFERRED TO IN PLEADINGS ORAFFIDAVITS.
No. 44 — NOTICE WHERE DOCUMENTS MAY BE INSPECTED.
No. 45 — ORDER FOR PRODUCTION OF DOCUMENTS ANDINSPECTION.
No. 46 — SUMMONS FOR DIRECTIONS PURSUANT TO ORDER 25.
No. 47 — NOTICE UNDER SUMMONS FOR DIRECTIONS.
No. 48 — SUMMONS FOR INTERROGATORIES.
No. 49 — INTERROGATORIES.
No. 50 — ORDER FOR INTERROGATORIES.
No. 51 — ANSWER TO INTERROGATORIES.
No. 52 — NOTICE TO ADMIT FACTS.
No. 53 — ADMISSION OF FACTS, PURSUANT TO NOTICE.
No. 54 — NOTICE TO ADMIT DOCUMENTS.
No. 55 — NOTICE TO NON-ADMISSION OF DOCUMENTS.
No. 56 — NOTICE TO PRODUCE.
No. 57 — NOTICE OF APPOINTMENT TO HEAR ORIGINATINGSUMMONS.
No. 58 — ORDER FOR INTERIM INJUNCTION.
No. 59 — RECEIVER’S SECURITY BY UNDERTAKING.
No. 60 — AFFIDAVIT VERIFYING RECEIVER’S ACCOUNT.
No. 61 — CERTIFICATE OF RESULTS OF SALE.
No. 62 — SUMMONS IN CHAMBERS.
No. 63 — REQUEST FOR SETTING DOWN ACTION FOR TRIAL.
No. 64 — NOTIFICATION OF SETTING DOWN ACTION.
No. 65 — CERTIFICATE OF OFFICER AFTER TRIAL.
No. 66 — LIST OF EXHIBITS.
No. 67 — WRIT OF SUBPOENA AD TESTIFICANDUM.
No. 68 — WRIT OF SUBPOENA DUCES TECUM.
No. 69 — WRIT OF SUBPOENA AD TESTICANDUM AND DUCES TECUM.
No. 70 — PRAECIPE FOR SUBPOENA.
No. 71 — AFFIDAVIT FOR AN ORDER FOR THE PRODUCTION OF A PERSON INPRISON.
No. 72 — ORDER TO PRODUCE PERSON IN PRISON.
No. 73 — ORDER FOR EXAMINATION BEFORE TRIAL.
No. 74 — ORDER FOR ISSUE OF LETTER OF REQUEST TO JUDICIAL AUTHORITY OUTOF JURISDICTION.
No. 75 — ORDER FOR APPOINTMENT OF EXAMINER TO TAKE EVIDENCE OFWITNESS OUT OF JURISDICTION.
No. 76 — LETTER OF REQUEST FOR EXAMINATION OF WITNESS OUT OFJURISDICTION.
No. 77 — SOLICITOR’S UNDERTAKING AS TO EXPENSES.
No. 78 — FORMS OF JURAT.
No. 79 — JUDGMENTS.
No. 80 — ORDER FOR ACCOUNTS AND INQUIRIES.
No. 81 — NOTICE OF JUDGMENT OR ORDER.
No. 82 — FORM OF ADVERTISEMENT FOR CREDITORS.
No. 83 — FORM OF ADVERTISEMENT FOR CLAIMANTS OTHER THANCREDITORS.
No. 84 — AFFIDAVIT VERIFYING LIST OF CREDITOR’S CLAIMS.
No. 85 — AFFIDAVIT VERIFYING LIST OF CLAIMS OTHER THAN CREDITOR’SCLAIMS.
No. 86 — CERTIFICATE OF REGISTRAR.
No. 87 — NOTICE OF CERTAIN JUDGMENTS.
No. 88 — WRIT OF SEIZURE AND SALE.
No. 89 — WRIT OF DELIVERY.
No. 90 — WRIT OF POSSESSION.
No. 91 — SUMMONS FOR LEAVE TO ISSUE EXECUTION.
No. 92 — PRAECIPE FOR WRIT OF EXECUTION.
No. 93 — CONSENT TO ENTRY OF SATISFACTION.
No. 94 — NOTICE OF SEIZURE AND INVENTORY.
No. 95 — NOTICE OF SALE.
No. 96 — AFFIDAVIT IN SUPPORT OF APPLICATION FOR ORDER FOREXAMINATION OF JUDGMENT DEBTOR.
No. 97 — ORDER FOR EXAMINATION OF JUDGMENT DEBTOR.
No. 98 — GARNISHEE ORDER TO SHOW CAUSE.
No. 99 — AFFIDAVIT IN SUPPORT OF GARNISHEE ORDER.
No. 100 — GARNISHEE ORDERS.
No. 101 — ORDER FOR ISSUE BETWEEN JUDGMENT CREDITOR ANDGARNISHEE.
No. 102 — (THERE IS NO NO. 102).
No. 103 — (THERE IS NO NO. 103).
No. 104 — ORDER ABSOLUTE IMPOSING CHARGE ON SECURITIES.
No. 105 — ORDER IMPOSING CHARGE ON SECURITIES: ORDER TOSHOW CAUSE.
No. 106 — AFFIDAVIT AND NOTICE UNDER 0.50, r.10.
No. 107 — ORDER ON ORIGINATING MOTION RESTRAINING TRANSFER OF STOCK ETC.
No. 108 — SUMMONS FOR APPOINTMENT OF RECEIVER.
No. 109 — ORDERS FOR APPOINTMENT OF RECEIVER ETC.
No. 110 — ORDER OF COMMITTAL.
No. 111 — WARRANT FOR COMMITAL.
No. 112 — NOTICE TO BE SERVED WITH WRIT OF HABEAS CORPUS AD SUBJICIENDUM.
No. 113 — WRIT OF HABEAS CORPUS AD SUBJICIENDUM. No. 113A — MEMORANDUM OF APPEAL.
No. 113B — NOTICE OF CROSS APPEAL.
No. 114 — NOTICE OF APPEAL TO JUDGE IN CHAMBERS.
No. 115 — NOTICE OF APPEAL TO COURT OF APPEAL.
No. 116 — CERTIFICATE FOR SECURITY FOR COSTS.
No. 117 — PETITION OF APPEAL.
No. 118 — RESPONDENT’S NOTICE.
No. 119 — CAUSE BOOK.
No. 120 — ORIGINATING SUMMONS BOOK.
No. 121 — ORIGINATING MOTION BOOK.
No. 122 — INTERPLEADER SUMMONS BOOK.
No. 123 — SUMMONS IN CHAMBERS BOOK.
No. 124 — JUDGMENT BOOK.
No. 125 — WRITS OF EXECUTION BOOK.
No. 126 — DISTRESS BOOK.
No. 127 — PROBATE BOOK.
No. 128 — CAVEAT BOOK.
No. 129 — SERVICE BOOK.
No. 130 — ADOPTION BOOK.
No. 131 — DIRECTIONS TO TREASURY.
No. 132 — INDEX OF WILLS.
No. 133 — REGISTER OF APPEALS TO THE COURT OF APPEAL.
No. 134 — REGISTER OF APPEALS FROM SUBORDINATE COURT.
No. 135 — ORDER FOR SUBSTITUED SERVICE.
No. 136 — AFFIDAVIT ON APPLICATION FOR SUBSTITUTED SERVICE.
No. 137 — AFFIDAVITS OF SERVICE.
No. 138 — NOTICE OF CHANGE OF SOLICITOR.
No. 139 — NOTICE OF INTENTION OF PARTY TO ACT IN PERSON, IN PLACE OFSOLICITOR.
No. 140 — SUMMONS TO REMOVE SOLICITOR FROM RECORD.
No. 141 — ORDER REMOVING SOLICITOR FROM THE RECORD.
No. 142 — SUMMONS FOR WITHDRAWAL OF SOLICITOR.
No. 143 — ORDER FOR WITHDRAWAL OF SOLICITOR.
No. 144 — CERTIFICATE OF SERVICE OF FOREIGN PROCESS.
No. 145 — ORDER FOR REGISTRATION OF FOREIGN JUDGMENT.
No. 146 — CERTIFICATE UNDER THE RECIPROCAL ENFORCEMENT OF JUDGMENTACT.
No. 147 — CERTIFICATE UNDER THE RECIPROCAL ENFORCEMENT OF JUDGMENTACT.
No. 148 — (THERE IS NO NO. 148).
No. 149 — (THERE IS NO NO. 149).
No. 150 — (THERE IS NO NO. 150).
No. 151 — (THERE IS NO NO. 151).
No. 152 — (THERE IS NO NO. 152).
No. 153 — (THERE IS NO NO. 153).
No. 154 — (THERE IS NO NO. 154).
No. 155 — WRIT OF SUMMONS IN ACTION IN REM.
No. 156 — WARRANT OF ARREST.
No. 157 — PRAECIPE FOR WARRANT OF ARREST.
No. 158 — PRAECIPE FOR CAVEAT AGAINST ARREST.
No. 159 — PRAECIPE FOR SERVICE OF WRIT IN REM BY SHERIFF.
No. 160 — RELEASE.
No. 161 — PRAECIPE FOR ISSUE OF RELEASE.
No. 162 — PRAECIPE FOR CAVEAT AGAINST RELEASE AND PAYMENT.
No. 163 — PRAECIPE FOR WITHDRAWAL OF CAVEAT.
No. 164 — BAIL BOND.
No. 165 — PRAECIPE FOR COMMISSION FOR APPRAISEMENT AND SALE.
No. 166 — COMMISSION FOR APPRAISEMENT AND SALE.
No. 167 — (THERE IS NO NO. 167).
No. 168 — (THERE IS NO NO. 168).
No. 169 — (THERE IS NO NO. 169).
No. 170 — (THERE IS NO NO. 170).
No. 171 — (THERE IS NO NO. 171).
No. 172 — (THERE IS NO NO. 172).
No. 173 — (THERE IS NO NO. 173).
No. 174 — (THERE IS NO NO. 174).
No. 175 — (THERE IS NO NO. 175).
No. 176 — (THERE IS NO NO. 176).
No. 177 — (THERE IS NO NO. 177).
No. 178 — (THERE IS NO NO. 178).
No. 179 — (THERE IS NO NO. 179).
No. 180 — (THERE IS NO NO. 180).
No. 181 — (THERE IS NO NO. 181).
No. 182 — (THERE IS NO NO. 182).
No. 183 — (THERE IS NO NO. 183).
No. 184 — (THERE IS NO NO. 184).
No. 185 — (THERE IS NO NO. 185).
No. 186 — (THERE IS NO NO. 186).
No. 187 — (THERE IS NO NO. 187).
No. 188 — (THERE IS NO NO. 188).
No. 189 — CONSENT OF NEXT FRIEND OR GUARDIAN AD LITEM OF PERSON UNDER DISABILITY.
No. 190 — CERTIFICATE BY SOLICITOR FOR PERSON UNDER DISABILITY.
No. 191 — ORDER FOR PARTICULARS (PARTNERSHIP).
No. 192 — NOTICE OF SERVICE ON MANAGER OF PARTNERSHIP.
No. 193 — AUTHORITY TO COMPANY TO REGISTER TRANSFER.
No. 194 — STATUTORY DECLARATIONS.
No. 195 — ACCOUNT BOOK.
APPENDIX B — COURT FEES COMMENCEMENT OF A CAUSE OR MATTER.
APPEARANCE.
INTERLOCUTORY APPLICATIONS.
ENTERING OR SETTING DOWN FOR TRIAL OR HEARING IN COURT.
WRITS.
JUDGMENT AND ORDERS.
MISCELLANEOUS.
PROBATE.
ADMIRALTY.
APPEAL FROM HIGH COURT.
APPEAL FROM SUBORDINATE COURTS AND STATUTORY BODIES.
FILING.
COPIES OF DOCUMENTS.
TRANSLATIONS. TREASURY.
TAXATION OF COSTS.
COMPANIES.
COMMISSIONS.
SHERIFF’S OFFICE.
__________________________
RULES OF THE SUPREME COURT
Commencement: 1st July 1990
[S 5/90]
ORDER 1
CITATION, APPLICATION, INTERPRETATION AND FORMS
Citation. (0.1, r.1).
1. These Rules may be cited as the Rules of the Supreme Court.
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Application. (0.1, r.2).
2. (1) Subject to the following provisions of this rule, these Rulesshall have effect in relation to all proceedings in the High Court, includingany pending proceedings therein.
(2) These Rules shall not have effect in relation to proceedings in respectof which rules have been or may be made under any written law for the specificpurpose of such proceedings or in relation to any criminal proceedings.
(3) In the case of the proceedings for which rules have been made, nothingin paragraph (2) shall be taken as affecting any provision of any rules (whethermade under the Act or any other written law) by virtue of which these Rules orany provisions thereof are applied in relation to any of those proceedings.
Application of Chapter 4. (0.1, r.3).
3. The Interpretation and General Clauses Act (Chapter 4) shall apply for the interpretation of these Rules as it applies for theinterpretation of an enactment.
Definitions. (0.1, r.4).
4. (1) In these Rules, unless the context otherwise requires, thefollowing expressions have the meanings hereby respectively assigned to them,namely —
“Act” means the Supreme Court Act;
“bailiff” includes the Registrar and any clerk or other officercharged with the duties of a bailiff and appointed as such by the Registrar;
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“cause book” means the book kept in the Registry in which thenumber of, and other details relating to, a cause or matter are entered;
“counsel” include an advocate and solicitor admitted as suchunder the Legal Profession Act (Chapter 132);
“folio” means 100 words, each figure being counted as oneword;
“Form” means a form set out in Appendix A to these Rules, and aform referred to by a number means the form so numbered in the Appendix;
“officer” means an officer of the High Court;
“originating summons” means every summons other than a summons in a pending cause or matter;
“Permanent Secretary” means the Permanent Secretary, Office of the Prime Minister;
“pleading” does not include a petition, summons or preliminaryact;
“probate action” has the meaning assigned to it by Order 72;
“receiver” includes a manager or consignee;
“Registrar” means the Chief Registrar, the Deputy Chief Registrar, Senior Registrar and a Registrar of the High Court;
“Registry”means the Registry of the High Court;
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“scheduled territories” has the meaning assigned to it by theExchange Control Act (Chapter 141);
“sheriff” includes a bailiff and any clerk or other officercharged with the duties of a Sheriff and appointed as such by the Registrar;
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“sign” in relation to the signing of documents by the Register,includes the affixing of a facsimile signature;
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“solicitor” includes an advocate and solicitor admitted as suchunder the Legal Profession Act (Chapter 132);
“writ” means a writ of summons.
(2) In these Rules, unless the context otherwise requires,“Court” means the High Court or any one or more Judges thereof,whether sitting in Court or in Chambers, or the Registrar; but the foregoingprovision shall not be taken as affecting any provision of these Rules and, inparticular, Order 32, rule 9, by virtue of which the authority and jurisdictionof the Registrar is defined and regulated.
(3) The Registrar may appoint any person to be, and carry out the duties of,a Sheriff or a bailiff.
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(4) In these Rules, unless there is provision to the contarary, a Judgeshall have and may exercise any authority or jurisdiction vested by there Rulesin the Registrar.
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Construction of references to Orders, Rules etc. (0.1, r.5).
5. (1) Unless the context otherwise requires, any reference in theseRules to a specified Order, rule or appendix is a reference to that Order orrule 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, thatparagraph of the rule, or that sub-paragraph of the paragraph, in which thereference occurs.
(2) Any reference in these Rules to anything done under a rule of theseRules includes a reference to the same thing done before the commencement ofthat rule under any corresponding rule of the court ceasing to have effect onthe commencement of that rule.
(3) Except where the context otherwise requires, any reference in theseRules to any written law shall be construed as a reference to that written lawas amended, extended or applied by or under any other written law.
Forms. (0.1, r.6).
6. The Forms in Appendix A shall be used where applicable with suchvariations as the circumstances of the particular case require.
Business by post, fax or electronic mail. (0.1, r.7).
7. Nothing in these Rules shall prejudice any power to regulate thepractice of the Court by giving directions enabling any business or class ofbusiness to be conducted by post, fax or electronic mail.
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ORDER 2
EFFECT OF NON-COMPLIANCE
Non-compliance with rules. (0.2, r.1).
1. (1) Where, in beginning or purporting to begin any proceedings orat any stage in the course of or in connection with any proceedings, there has,by reason of any thing done or left undone, been a failure to comply with therequirements of these Rules, whether in respect of time, place, manner, form orcontent 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 hasbeen such a failure as is mentioned in paragraph (1), and on such terms as tocosts or otherwise as it thinks just, set aside either wholly or in part theproceedings in which the failure occurred, any step taken in those proceedingsor any document, judgment or order therein or exercise its powers under theseRules to allow such amendments (if any) to be made and to make such order (ifany) 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 thatthe proceedings were required by any of these Rules to be begun by anoriginating process other than the one employed.
Application to set aside for irregularity. (0.2, 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 thereinshall not be allowed unless it is made within a reasonable time and before theparty applying has taken any fresh step after becoming aware of theirregularity.
(2) An application under this rule may be made by summons or motion and thegrounds of objection must be stated in the summons or notice of motion.
ORDER 3
TIME
“Month” means calendar month. (0.3, r.1).
1. Without prejudice to the Interpretation and General Clauses Act(Chapter 4), in its application to these Rules, the word “month”,where it occurs in any judgment order, direction or other document forming partof any proceeding in the High Court, means a calendar month unless the contextotherwise requires.
Reckoning periods of time. (0.3, 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 thefollowing provisions of this rule.
(2) Where the act is required to be done within a specified period after orfrom 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 specifiedperiod before a specified date, the period ends immediately before thatdate.
(4) Where the act is required to be done a specified number of clear daysbefore or after a specified date, at least that number of days must intervenebetween the day on which the act is done and that date.
(5) Where, apart from this paragraph, the period in question, being a periodof 7 days or less, would include the day before the weekly holiday, the weeklyholiday or public holiday, that day shall be excluded.
Time expires on weekly holiday etc. (0.3, r.3).
3. Where the time prescribed by these Rules, or by any judgment, orderor direction, for doing any act at the Registry expires on a weekly holiday orother day on which the Registry is closed, and by reason thereof that act cannotbe done on that day, the act shall be in time if done on the next day on whichthe Registry is open.
Extension etc. of time. (0.3, r.4).
4. (1) The Court may, on such terms as it thinks just, by orderextend or abridge the period within which a person is required or authorised bythese Rules or by any judgment, order or direction, to do any act in anyproceedings.
(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 ofthat period.
(3) The period within which a person is required by these Rules, or by anyorder or direction, to serve, file or amend any pleading or other document maybe extended by consent (given in writing) without an order of the Court beingmade for that purpose.
(4) In this rule references to the Court shall be construed as includingreferences to the Court of Appeal.
Notice of intention to proceed after year’s delay. (0.3,r.5).
5. Where a year or more has elapsed since the last proceeding in acause or matter, the party who desires to proceed must give to every other partynot less then one month’s notice of his intention to proceed.
A summons on which no order was made is not a proceeding for the purpose ofthis rule.
ORDER 4
CONSOLIDATION OF PROCEEDINGS
Consolidation etc. of causes or matters. (0.4, r.1).
1. (1) Where two or more causes or matters are pending, then, if itappears to the Court —
(a) that some common question of law or fact arises in both or allof them; or
(b) that the rights to relief claimed therein are in respect of orarise out of the same transaction or series of transactions; or
(c) that for some other reason it is desirable to make an order underthis rule, the Court may order those causes or matters to be consolidated onsuch terms as it thinks just or may order them to be tried at the same time orone immediately after another or may order any of them to be stayed until afterthe determination of any other of them.
(2) An order for consolidation must be in Form 1 and shall direct that thecause or matter in which the application is made shall thence forward be carriedon in such other cause or matter and that the title of such other cause ormatter be amended by adding thereto the title of the cause or matter in whichthe application is made.
(3) Upon such order being made, the file of the cause or matter in which theapplication is made shall be transferred to and added to the file of such othercause or matter, and the copy of the order shall be left in place of the file sotransferred, and a memorandum of the transfer shall be entered in the cause bookagainst the cause or matter so consolidated.
ORDER 5
MODE OF BEGINNING CIVIL PROCEEDINGS IN HIGH COURT
Mode of beginning civil proceedings. (0.5, r.1).
1. Subject to the provisions of any written law and of these Rulescivil proceedings in the High Court may be begun by writ, originating summons,originating motion or petition.
Proceedings which must be begun by writ. (0.5, r.2).
2. Subject to any provision of any written law or of these Rules, byvirtue of which any proceedings are expressly required to be begun otherwise than by writ, the following proceedings must, notwithstandinganything 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 orremedy for any tort, other than trespass to land;
(b) in which a claim made by the plaintiff is based on allegationof fraud;
(c) in which a claim is made by the plaintiff for damages for beach ofduty (whether the duty exists by virtue of a contract or of a provision made by orunder any written law or independently of any contract of any such provision),where the damages claimed consist of or include damages in respect of death ofany person or in respect of damage to any property;
(d) in which a claim is made by the plaintiff for damages for beachof promise of marriage;
(e) in which a claim is made by the plaintiff in respect of theinfringement of a patent.
In this rule “personal injuries” includes any disease and anyimpairment of a person’s physical or mental condition.
Proceedings which must be begun by originating summons. (0.5,r.3).
3. Proceedings by which an application is to be made to the High Courtor a Judge thereof under any written law must be begun by originating summonsexcept where by these Rules or by or under any written law the application inquestion 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. (0.5,r.4).
4. (1) Except in the case of proceedings which by these Rules or byor under any written law are required to begun by writ or originating summons orare required or authorised to be begun by originating motion or petition,proceedings may be begun either by writ or by originating summons as theplaintiff considers appropriate.
(2) Proceedings —
(a) in which the sole or principal question at issue is or islikely to be, one of the construction of any written law or of any instrumentmade under any written law, or of any deed, will, contract or other document, orsome other question of law; or
(b) in which there is unlikely to be any substantial dispute offact,
are appropriate to be begun by originating summons unless the plaintiffintends in those proceedings to apply for judgment under Order 14 or Order 81 orfor any other reason considers the proceedings more appropriate to be begun bywrit.
Proceedings to be begun by motion or petition. (0.5, r. 5).
5. Proceedings may be begun by originating motion or petition if, butonly if, by these Rules or by or under any written law the proceedings inquestion are required or authorised to be so begun.
Right to sue in person. (0.5, r.6).
6. (1) Subject to paragraph (2) and to Order 76, rule 2, any person(whether or not he sues as a trustee or personal representative or in any otherrepresentative capacity) may begin and carry on proceedings in the High Court bya solicitor or in person.
(2) Except as expressly provided by or under any written law or as the Courtmay permit in any proceedings, a body corporate may not begin or carry on anysuch proceedings otherwise than by a solicitor.
ORDER 6
WRIT OF SUMMONS: GENERAL PROVISIONS
Form of writ. (0.6, r.1).
1. Every writ must be in Form 2 or Form 3, whichever isappropriate.
Indorsement of claim. (0.6, 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 notindorsed on the writ, with a concise statement of the nature of the claim madeor the relief or remedy required in the action begun thereby;
(b) where the claim made by the plaintiff is for a debt orliquidated demand only, with a statement of the amount claimed in respect of thedebt or demand and for costs and also with a statement that further proceedingswill be stayed if, within the time limited for appearing, the defendant—
(i) except in either of the cases mentioned in paragraph (2), pays theamount so claimed to the plaintiff or his solicitor; or
(ii) in either of the said cases, pays that amount into Court.
(2) The cases referred to in paragraph (1) (b) are —
(a) a case where the plaintiff (or, if there are more plaintiffsthan one, any of them) is resident outside the scheduled territories or isacting by order or on behalf of a person so resident;
(b) a case where the defendant is making the payment by order or onbehalf of a person so resident.
(3) A defendant who pays money into Court under this rule must give noticein Form 4 to the plaintiff or his solicitor.
Indorsement as to capacity. (0.6, r.3).
3. (1) Before a writ is issued it must be indorsed —
(a) where the plaintiff sues in a representative capacity, with astatement of the capacity in which he sues;
(b) where a defendant is sued in a representative capacity, with astatement of the capacity in which he is sued.
(2) Before a writ is issued in an action brought by a plaintiff who inbringing it is acting by order or on behalf of a person resident outside thescheduled territories it must be indorsed with a statement of that fact and withthe address of the person so resident.
Indorsement as to solicitor and address. (0.6, r.4).
4. (1) Before a writ is issued it must be indorsed —
(a) where the plaintiff sues by a solicitor, with theplaintiff’s address and the solicitor’s name or firm and a businessaddress of his within the jurisdiction;
(b) where the plaintiff sues in person, with —
(i) the address of his place of residence and, if his place of residenceis not within the jurisdiction or if he has no place of residence, the addressof a place within the jurisdiction at or to which documents for him may bedelivered or sent; and
(ii) his occupation.
(2) The address for service of a plaintiff shall be —
(a) where he sues by a solicitor, the business address of thesolicitor indorsed on the writ,
(b) where he sues in person, the address within the jurisdictionindorsed on the writ.
(3) Where a solicitor’s name is indorsed on a writ, he must, if anydefendant who has been served with or who has entered an appearance to the writrequests him in writing so to do, declare in writing whether the writ was issuedby him or with his authority or privity.
(4) If a solicitor whose name is indorsed on a writ declares in writing thatthe writ was not issued by him or with his authority or privity, the Court mayon the application of any defendant who has been served with or who has enteredan appearance to the writ, stay all proceedings in the action begun by thewrit.
Concurrent writ. (0.6, r.5).
5. (1) One or more concurrent writs may, at the request of theplaintiff, be issued at the time when the original writ is issued or at any timethereafter before the original writ ceases to be valid.
(2) Without prejudice to the generality of paragraph (1), a writ for servicewithin the jurisdiction may be issued as a concurrent writ with one, notice ofwhich is to be served out of the jurisdiction and a writ notice of which is tobe served out of the jurisdiction may be issued as a concurrent writ with onefor service within the jurisdiction.
(3) A concurrent writ is a true copy of the original writ with suchdifferences only (if any) as are necessary having regard to the purpose forwhich the writ is issued.
(4) A concurrent writ must be marked by the Registrar with the word“Concurrent”
and he shall sign and date the day of issue of the concurrent writ.
Issue of writ. (0.6, r.6).
6. (1) No writ notice of which is to be served out of thejurisdiction shall be issued without the leave of the Court.
(2) A plaintiff or his solicitor must, on presenting a writ for sealing,leave with the Registrar the original and a copy together with as many copies thereof as there are defendants to be served.
(3) The Registrar shall assign a serial number to the writ and shall sign,seal and date the writ whereupon the writ shall be deemed to be issued.
(4) The original writ must be filed in the Registry and an entry thereofmade in the cause book.
Duration and renewal of writ. (0.6, r.7).
7. (1) For the purpose of service, a writ (other than a concurrentwrit) is valid in the first instance for 12 months, beginning with the date ofits issue and a concurrent writ is valid in the first instance for the period ofvalidity of the original writ which is unexpired at the date of issue of theconcurrent writ.
(2) Where a writ has not been served on a defendant, the Court may by orderextend the validity of the writ from time to time for such period, not exceeding12 months at any one time, beginning with the day next following that on whichit would otherwise expire, as may be specified in the order, if an applicationfor extension is made to the Court before that day or such later day (if any) asthe 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 in Form 5 showing the periodfor 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 orconcurrent) issued in the same action which has not been served so as to extendthe validity of that other writ until the expiration of the period specified inthe order.
(5) A note of the renewal must be entered in the cause book.
ORDER 7
ORIGINATING SUMMONSES: GENERAL PROVISIONS
Application. (0.7, r.1).
1. The provisions of this Order apply to all originating summonsessubject, in the case of originating summonses of any particular class, to anyspecial provisions relating to originating summonses of that class made by theseRules or by or under any written law.
Form of summons etc. (0.7, r.2).
2. (1) Every originating summons must be in Form 6, Form 7 or Form 8which ever is appropriate.
(2) The party taking out an originating summons (other than an exparte summons)
shall be described as a plaintiff, and the other parties shall be describedas defendants.
Contents of summons. (0.7, r.3).
3. (1) Every originating summons must include a statement of thequestions on which the plaintiff seeks the determination or direction of theHigh Court or, as the case may be, a concise statement of the relief or remedy claimed in the proceedings begun by the originating summons withsufficient particulars to identify the cause or causes of action in respect ofwhich the plaintiff claims that relief or remedy.
(2) Order 6, rules 3 and 4, shall apply in relation to an originatingsummons as they apply in relation to a writ.
Concurrent summons. (0.7, r.4).
4. Order 6, rules 5, shall apply in relation to an originating summonsas it applies in relation to a writ.
Issue of summons. (0.7, r.5).
5. Order 6, rule 6, shall apply in relation to an originating summonsas it applies in relation to a writ.
Duration and renewal of summons. (0.7, r.6).
6. Order 6, rule 7, shall apply in relation to an originating summonsas it applies in relation to a writ.
Ex parte originating summons. (0.7, r.7).
7. (1) Rules 2(1), 3(1) and 5 shall, so far as applicable, apply to ex parte originating summonses; but save as aforesaid, the foregoingrules of this Order shall not apply to ex parte originatingsummonses.
(2) Order 6, rule 6(3) shall, with the necessary modifications, apply inrelation to an ex parte originating summons as it applies in relation to a writ.
ORDER 8
ORIGINATING AND OTHER MOTIONS: GENERAL PROVISIONS
Application. (0.8, r.1).
1. The provisions of this Order apply to all motions subject, in thecase of originating motions of any particular class, to any special provisionsrelating to motions of that class made by these Rules or by or under any writtenlaw.
Notice of motion. (0.8, 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 partiesaffected thereby, but the Court if satisfied that the delay caused by proceedingin the ordinary way would or might entail irreparable or serious mischief maymake an order ex parte on such terms as to costs or otherwise, andsubject to such undertaking, if any, as it thinks just; and any party affectedby 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 2clear days between the service of notice of a motion and the day named in thenotice for hearing the motion.
Form and issue of notice of motion. (0.8, r.3).
3. (1) The notice of an originating motion must be in Form 9 and thenotice of any other motion in Form 10.
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 ofthe claim made or the relief or remedy required.
(3) Order 6, rule 4, shall, with the necessary modifications, apply inrelation to a notice of an originating motion as it applies in relation to awrit.
(4) Issue of the notice takes place upon its being sealed by an officer ofthe Registry.
Service of notice of motion with writ etc. (0.8, r.4).
4. Notice of a motion to be made in an action may be served by theplaintiff on the defendant with the writ of summons or originating summons or atany time after service of such writ or summons, whether or not the defendant hasentered an appearance in the action.
Adjournment of hearing. (0.8, r.5).
5. The.hearing of any motion may be adjourned from time to time onsuch terms, if any, as the Court thinks fit.
ORDER 9
PETITION: GENERAL PROVISIONS
Application. (0.9, r.1).
1. Rules 2 and 3 apply to petitions by which civil proceedings in theHigh 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 theseRules or by or under any written law.
Contents of petition. (0.9, r.2).
2. (1) Every petition must include a concise statement of the natureof the claim made or the relief or remedy required in the proceedings begunthereby.
(2) Every petition must include at the end thereof a statement of the namesof the persons, if any, required to be served therewith or, if no person isrequired to be served, a statement to that effect.
(3) Order 6, rule 4, shall, with the necessary modifications, apply inrelation to a petition as it applies in relation to a writ.
Fixing time for hearing petition. (0.9, r.3).
3. (1) A day and time for the hearing of a petition which is requiredto be heard shall be fixed by the Registrar.
(2) Unless the Court otherwise directs, a petition which is required to beserved on any person must be served on him not less than 7 days before the dayfixed for the hearing of the petition.
Certain applications not to be made by petition. (0.9, r.4).
4. No application in any cause or matter may be made by petition.
ORDER 10
SERVICE OF ORIGINATING PROCESS: GENERAL PROVISIONS
General provisions. (0.10, r.1).
1. (1) Subject to the provisions of any written law and these Rules,a writ must be served personally on each defendant.
(2) Where a defendant’s solicitor indorses on the writ a statementthat he accepts service of the writ on behalf of that defendant, the writ shallbe deemed to have been duly served on that defendant and to have been served onthe date on which the indorsement was made.
(3) Where a writ is not duly served on a defendant but he enters anunconditional appearance in the action begun by the writ, the writ shall bedeemed to have been duly served on him and to have been so served on the date onwhich he entered the appearance.
(4) Where a writ is duly served on a defendant otherwise than by virtue ofparagraph (2) or (3), then, subject to Order 11, rule 5, unless after service theperson serving it indorses on it the following particulars, that is to say, theday of the week and date on which it was served, where it was served, the personon whom it was served, and, where he is not the defendant, the capacity in whichhe was served, the plaintiff in the action begun by the writ shall not beentitled to enter final or interlocutory judgment against that defendant indefault of appearance or in default of defence, unless the Court otherwiseorders.
Service of writ on agent of overseas principal. (0.10, r.2).
2. (1) Where the Court is satisfied on an ex parte applicationthat —
(a) a contract has been entered into within the jurisdiction withor through an agent who is either an individual residing or carrying onbusiness within the jurisdiction or a body corporate having a registeredoffice or a place of business within the jurisdiction; and
(b) the principal for whom the agent was acting was at the time thecontract was entered into and is at the time of the application neither such anindividual nor such a body corporate; and
(c) at the time of the application either the agent’s authorityhas not been determined or he is still in business relations with hisprincipal,
the Court may authorise service of a writ beginning an action relating to thecontract to be effected on the agent instead of the principal.
(2) An order under this rule authorising service of a writ on adefendant’s agent must limit a time within which the defendant must enteran appearance.
(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 mustbe sent by post to the defendant at his address out of the jurisdiction.
Service of writ in pursuance of contract. (0.10, r.3).
3. (1) Where —
(a) a contract contains a term to the effect that the High Courtshall have jurisdiction to hear and determine any action in respect of acontract or, apart from any such term, the High Court has jurisdiction to hearand determine any such action; and
(b) the contract provides that, in the event of any action inrespect of the contract being begun, the process by which it is begun may beserved on the defendant, or on such other person on his behalf as may bespecified in the contract, in such manner or at such place (whether within orout of the jurisdiction), as may be so specified,
then if an action in respect of the contract is begun in the High Court andthe writ by which it is begun is served in accordance with the contract the writshall, subject to paragraph (2), be deemed to have been duly served on thedefendant.
(2) A notice of a writ which is served out of the jurisdiction in accordancewith a contract shall not be deemed to have been duly served on the defendant byvirtue of paragraph (1) unless leave to serve such notice out of thejurisdiction has been granted under Order 11, rule 1 or 2.
Service of writ in certain actions for possession of immovable property. (0.10, r.4).
4. Where a writ is indorsed with a claim for the possession ofimmovable property the Court may —
(a) if satisfied on an ex parte application that noperson appears to be in possession of the immovable property and that servicecannot be otherwise effected on any defendant, authorise service on thatdefendant to be effected by affixing a copy of the writ to some conspicuous partof the immovable property;
(b) if satisfied on such an application that no person appears tobe in possession of the immovable property and that service could not otherwisehave been effected on any defendant, order that service already effected byaffixing a copy of the writ to some conspicuous part of the immovable property shall be treated as good service on that defendant.
Service of originating summons, petition and notice of motion. (0.10,r.5).
5. The foregoing rules of this Order (except rule 1(4)) shall apply inrelation to an originating summons to which an appearance is required to beentered as they apply in relation to a writ, and rule 1(1) and (2) shall, withany necessary modifications, apply in relation to an originating summons to which no appearance need be entered, anotice of an originating motion and a petition as they apply in relation to awrit.
ORDER 11
SERVICE OF PROCESS ETC. OUT OF THE JURISDICTION
Principal cases in which service of notice of writ out of jurisdiction ispermissible. (0.11, r.1).
1. Where the writ does not contain any claim for damage, loss of lifeor personal injury arising out of —
(i) a collision between ships; or
(ii) the carrying out of or omission to carry out a manoeuvre in the caseof one or more of two or more ships; or
(iii) non-compliance on the part of one or more of two or more ships, withany collision regulations in force,
service of a notice of a writ out of the jurisdiction is permissible with theleave of the Court in the following cases, that is to say —
(a) if the whole subject-matter of the action begun by the writ isimmovable property situate within the jurisdiction (with or without rents orprofits) or the perpetuation of testimony relating to immovable property sosituate;
(b) if an act, deed, will, contract, obligation or liabilityaffecting immovable property situate within the jurisdiction is sought to beconstrued, rectified, set aside or enforced in the action begun by the writ;
(c) if in the action begun by the writ relief is sought against aperson domiciled or ordinarily resident or carrying on business within thejurisdiction;
(d) if the action begun by the writ is for the administration ofthe estate of a person who died domiciled within the jurisdiction or if theaction begun by the writ is for any relief or remedy which might be obtained inany such action as aforesaid;
(e) if the action begun by the writ is for the execution, as toproperty situate within the jurisdiction, of the trusts of a written instrument,being trusts that ought to be executed according to law and of which the personto be served with the writ is a trustee or if the action begun by the writ isfor any relief or remedy which might be obtained in any such action asaforesaid;
(f) if the action begun by the writ is brought against a defendant toenforce, rescind, dissolve, annul or otherwise affect a contract, or to recoverdamages or obtain other relief in respect of the breach of a contract, being (ineither case) a contract which —
(i) was made within the jurisdiction; or
(ii) was made by or through an agent trading or residing within thejurisdiction on behalf of a principal trading or residing out of thejurisdiction; or
(iii) is by its terms, or by implication, governed by the law of Brunei Darussalam;
(g) if the action begun by the writ is brought against a defendantin respect of a breach committed within the jurisdiction of a contract madewithin or out of the jurisdiction, and irrespective of the fact, if such be thecase, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible the performance of so muchof the contract as ought to have been performed within the jurisdiction;
(h) if the action begun by the writ is founded on a tort committedwithin the jurisdiction;
(i) if in the action begun by the writ an injunction is soughtordering the defendant to do or refrain from doing anything within thejurisdiction (whether or not damages are also claimed in respect of a failure todo or the doing of that thing);
(j) if the action begun by the writ being properly brought against aperson duly served within or out of the jurisdiction, a person out of the jurisdiction is a necessary or proper party thereto;
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(k) if the action begun by the writ is either by a charge of propertysituate within the jurisdiction (other than immovable property) and seeks thesale of the property, the foreclosure of the charge or delivery by the chargorof possession of the property but not an order for payment of any moneys dueunder the charge or by a charge or of property so situate (other than immovable property) and seeks redemption of the charge, reconveyance of theproperty or delivery by the chargee of possession of the property but not apersonal judgment;
(1) if the action begun by the writ is brought under the provisionsof any written law relating to carriage by air.
In this paragraph ‘mortgage’ includes a charge or lien,‘mortgagee’ means a person entitled to, or interested in, a mortgageand ‘mortgagor’ means a person entitled to, ar interested inproperty subject to a mortgage.
Service out of the jurisdiction in certain actions of contract. (0.11,r.2).
2. Where it appears to the Court that a contract contains a term tothe effect that the High Court shall have jurisdiction to hear and determine any action in respect of the contract, the Court may grant leavefor service out of the jurisdiction of the notice of the writ by which an actionin respect of the contract is begun.
Leave for service of notice of writ. (0.11, r.3).
3. Notice of a writ for service out of the jurisdiction must be inForm 11.
Application for, and grant of, leave to serve notice of writ out ofjurisdiction. (0.11, r.4).
4. (1) An application for the grant of leave under rule 1 or 2 mustbe supported by an affidavit in Form 12 stating the grounds on which theapplication is made and that in the deponent’s belief, the plaintiff has agood cause of action, and showing in what place or country the defendant is, orprobably may be found.
(2) No such leave shall be granted unless it shall be made sufficiently toappear to the Court that the case is a proper one for service out of thejurisdiction under this Order.
(3) An order in Form 13 granting under rule 1 or 2 leave to serve a noticeof a writ out of the jurisdiction must limit a time within which the defendantto be served must enter an appearance.
Service of notice of writ abroad: General. (0.11, r.5).
5. (1) Subject to the following provisions of this rule, Order 10,rule 1, and Order 62, rule 5, shall apply in relation to the service of a noticeof a writ notwithstanding that the notice is to be served out of thejurisdiction.
(2) Nothing in this rule or in any order or direction of the Court made byvirtue of it shall authorise or require the doing of anything in a country inwhich service is to be effected which is contrary to the law of thatcountry.
(3) A notice of a writ which is to be served out of jurisdiction need not beserved personally on the person required to be served so long as it is served onhim in accordance with the law of the country in which service is effected.
(4) Where a certificate under the following provisions of this rule isproduced in relation to the service of notice of a writ in accordance with rule6 or rule 7, Order 10, rule 1(4), shall not apply in relation to that service.
(5) An official certificate stating that a notice of a writ as regards whichrule 6 has been complied with has been served on a person personally, or inaccordance with the law of the country in which service was effected, on aspecified date, being a certificate —
(a) by a consular authority in that country; or
(b) by the Government or judicial authorities of that country;or
(c) by any other authority designed in respect of that country, underthe Hague Convention,
shall be evidence of the facts so stated.
(6) An official certificate by the Minister of Foreign Affairs stating thatnotice of a writ has been duly served on a specified date in accordance with arequest made under rule 7 shall be evidence of that fact.
(7) A document purporting to be such a certificate as is mentioned inparagraph (5)
or (6) shall, until the contrary is proved, be deemed to be such acertificate.
(8) Where the defendant is in Singapore or Malaysia, the notice of a writmay be sent by post or otherwise by the Registrar to the Magistrate, Registrar,or other appropriate officer of any Court exercising civil jurisdiction in thearea in which the person to be served is said to be or to be carrying onbusiness for service on the defendant and if it is returned with an indorsementof service and with an affidavit of such service, it shall be deemed to havebeen duly served.
Service of notice of writ abroad through foreign governments judicialauthorities and
Bruneian consuls. (0.11, r.6).
6. (1) Where in accordance with these Rules notice of a writ is to beserved on a defendant in any country with respect to which there subsists aCivil Procedure Convention providing for service in that country of process ofthe High Court, the notice may be served —
(a) through the judicial authorities of that country; or
(b) through a Brunei Darussalam consular authority in that country(subject to any provision of the Convention as to the nationality of persons whomay be so served).
(2) Where in accordance with these Rules notice of a writ is to be served ona defendant in any country with respect to which there does not subsist a CivilProcedure Convention providing for service in that country of process of theHigh Court, the notice may be served —
(a) through the Government of that country, where that Governmentis willing to effect service; or
(b) through a Brunei Darussalam consular authority in that country,except where service through such an authority is contrary to the law of thatcountry.
(3) Where a person wishes to serve notice of a writ in any country—
(a) through the judical authorities of that country under paragraph(1); or
(b) through a Brunei Darussalam consular authority under paragraph(1) or (2);
or
(c) through the Government of that country under paragraph (2),
that person must lodge in the Registry a request in Form 14 for service ofnotice of the writ by that method, together with a copy of the notice and anadditional copy thereof for each person to be served.
(4) Every copy of a notice lodged under paragraph (3) must beaccompanied by a translation of the notice in the official language of thecountry in which service is to be effected or, if there is more than oneofficial language of that country, in any one of those languages which isappropriate 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 noticewhich is to be served in a country the official language of which is, or theofficial languages of which include, English, or is to be served in any countryby a Brunei Darussalam consular authority on a Brunei Darussalam citizen, unlessthe service is to be effected under paragraph (1) and the Civil ProcedureCovention with respect to that country expressly requires the copy to be accompanied by a translation.
(5) Every translation lodged under paragraph (4) must be certified by theperson making it to be a correct translation; and the certificate must contain astatement of that person’s full name, of his address and of hisqualifications for making the translation.
(6) Documents duly lodged under paragraph (3) shall be sent by the Registrarto the Permanent Secretary to the Ministry of Foreign Affairs with a requestthat he arranges for the writ to be served by the method indicated in therequest lodged under paragraph (3) or, where alternative methods are so indicated, by such one of those methods as in most convenient.
Service of notice of writ in certain actions under written law. (0.11,r.7).
7. (1) Where a person to whom leave has been granted under rule 1 toserve notice of a writ on a High Contracting Party to the Warsaw Conventionbeing a writ beginning an action to enforce a claim in respect of carriageundertaken by that Party, wishes to have the notice served on that Party, hemust lodge in the Registry —
(a) a request for service to be arranged by the Minister of ForeignAffairs; and
(b) a copy of the notice; and
(c) except where the official language of the High Contracting Partyis, or the official languages of that Party include, English, a translation ofthe notice in the official language or one of the official languages of the HighContracting Party.
(2) Rule 6(5) shall apply in relation to a translation lodged underparagraph (1) of this rule as it applies in relation to a translation lodgedunder paragraph (4) of that rule.
(3) Documents duly lodged under this rule shall be sent by the Registrar tothe Permanent Secretary to the Ministry of Foreign Affairs with a request thathe arranges for the notice to be served on the High Contracting Party or theGovernment in question, as the case may be.
Undertaking to pay expenses of service incurred by Minister. (0.11,r.8).
8. Every request lodged under rule 6(3) or rule 7 must contain anundertaking by the person making the request to be responsible personally forall expenses incurred by the Minister of Foreign Affairs in respect of the service requested and, on receiving due notification of the amount of those expenses, to pay that amount to theoffice of the said Minister and to produce a receipt for the payment to the proper officer inthe Registry.
Service of originating summons, petition, notice of motion etc. (0.11,r.9).
9. (1) Subject to paragraph (2), service out of the jurisdiction of an originating summons is permissible with the leave of theCourt.
(2) Where the proceedings begun by an originating summons might have been begun by writ, service out of the jurisdiction of the originatingsummons is permissible as aforesaid if, but only if, service of the notice ofthe writ out of the jurisdiction would be permissible had the proceedings beenbegun by writ.
(3) Where any proceedings are authorised by these Rules or (apart from theseRules) by or under any written law to be begun by originating motion orpetition, service out of the jurisdiction of the notice of motion or of thepetition is permissible with the leave of the Court.
(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.
(5) Rule 4(1) and (2) shall, so far as applicable, apply in relation to anapplication for the grant of leave under this rule as they apply in relation toan application for the grant of leave under rule 1 or 2.
(6) An order granting under this rule leave to serve out of the jurisdiction an originating summons to which an appearance is required to beentered must limit a time within which the defendant to be served with thesummons must enter an appearance.
(7) Rules 5, 6 and 8 shall apply in relation to any document for the serviceof which out of the jurisdiction leave has been granted under this rule as theyapply in relation to a writ.
ORDER 12
ENTRY OF APPEARANCE TO WRIT OR ORIGINATING SUMMONS
Mode of entering appearance. (0.12, r.1).
1. (1) Subject to paragraph (2) and to Order 76, rule 2, a defendantto an action begun by writ may (whether or not he is sued as a trustee orpersonal representative or in any other representative capacity) enter anappearance in the action and defend it by a solicitor or in person.
(2) Except as expressly provided by these Rules or by any written law, adefendant to such an action who is a body corporate may not enter an appearancein the action or defend it otherwise than by a solicitor.
(3) An appearance is entered by properly completing the requisite documents,that is to say, a memorandum of appearance, as defined by rule 2, and a copythereof, and handing them in at, or sending them by post to, the Registry.
(4) If two or more defendants to an action enter an appearance by the samesolicitor and at the same time, only one set of the requisite documents need becompleted and delivered for those defendants.
Memorandum of appearance. (0.12, r.2).
2. (1) A memorandum of appearance is a request to the Registry toenter an appearance for the defendant or defendants specified in thememorandum.
(2) A memorandum of appearance must be in Form 15 and both the memorandum ofappearance and the copy thereof required for entering an appearance must besigned by the solicitor by whom the defendant appears or, if the defendantappears in person, by the defendant.
(3) A memorandum of appearance must specify —
(a) in the case of a defendant appearing in person, the address ofhis place of residence and, if his place of residence is not within thejurisdiction or if he has no place of residence, the address of a place withinthe jurisdiction at or to which documents for him may be delivered or sent;and
(b) in the case of a defendant appearing by a solicitor a businessaddress of his solicitor’s within the jurisdiction,
and where the defendant enters an appearance in person, the address withinthe jurisdiction specified under sub-paragraph (a) shall be his address for service but otherwise his solicitor’s business addressshall be his address for service.
(4) If the Court is satisfied on application by the plaintiff that anyaddress specified in the memorandum of appearance is not genuine, the Court mayset aside the appearance.
Procedure on receipt of requisite documents. (0.12, r.3).
3. (1) On receiving the requisite documents an officer of theRegistry must in all cases affix to the copy of the memorandum of appearance anofficial stamp showing the date on which he received those documents and enterthe appearance in the cause book, and —
(a) if the requisite documents were handed in at the Registry, handback that copy of the memorandum; and
(b) if they were sent by post, send that copy by post to theplaintiff or, as the case may be, his solicitor at the plaintiff’s addressfor service and also send by post to the defendant or, as the case may be, hissolicitor at the defendant’s address for service a notice of appearance(stamped with an official stamp showing that date) stating that the defendantspecified therein entered an appearance on that date.
(2) Where the defendant enters an appearance by handing in the requisitedocuments at the Registry, he must on the date on which he enters the appearancesend by post to the plaintiff, if the plaintiff sues in person, but otherwise tothe plaintiff’s solicitor, at the plaintiff’s address for service,the copy of the memorandum of appearance handed back to him under paragraph(1).
Time limited for appearing. (0.12, r.4).
4. References in these Rules to the time limited for appearing arereferences —
(a) in the case of a writ served within the jurisdiction of theHigh Court to 8 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 thattime as so extended; and
(b) in the case of a notice of a writ served out of thejurisdiction, to the time limited under Order 10, rule 2(2), or Order 11, rule4(3), or, where that time has been extended as aforesaid, to that time as soextended.
Late appearance. (0.12, r.5).
5. (1) A defendant may not enter an appearance in an action afterjudgment has been entered therein except with the leave of the Court.
(2) Except as provided by paragraph (1), nothing in these Rules or any writor order thereunder shall be construed as precluding a defendant from enteringan appearance in an action after the time limited for appearing, but if adefendant enters an appearance after that time, he shall not, unless the Courtotherwise orders, be entitled to serve a defence or do any other thing laterthan if he had appeared within that time.
Conditional appearance. (0.12, r.6).
6. (1) A defendant to an action may with the leave of the Court entera conditional appearance in Form 16 in the action.
(2) A conditional appearance, except by a person sued as a partner of a firmin the name of that firm and served as a partner, is to be treated for allpurposes as an unconditional appearance unless the Court otherwise orders or thedefendant applies to the Court, within the time limited for the purpose, for anorder under rule 7 and the Court makes an order thereunder.
Application to set aside writ etc. (0.12, r.7).
7. (1) A defendant to an action may at any time before entering anappearance therein, or, if he has entered a conditional appearance, within 14days after entering the appearance, apply to the Court for an order settingaside the writ or service of the writ, or notice of the writ, on him, ordeclaring that the writ or notice has not been duly served on him or dischargingany order giving leave to serve the notice on him out of the jurisdiction.
(2) An application under this rule must be made by summons.
Appearance to originating summons. (0.12, r.8).
8. (1) Subject to paragraph (2) an appearance must be entered toevery originating summons (other than an ex parte originating summons)by each defendant named in and served with the summons.
(2) No appearance need be entered to an originating summons in any case orclass of case in relation to which special provision to that effect is made bythese Rules or by or under any written law.
(3) Subject to the foregoing provisions of this rule, the foregoing rules ofthis Order shall apply in relation to an originating summons to which anappearance is required to be entered as they apply in relation to a writ exceptthat for the reference in rule 4 (b) to Order 11, rule 4(3), there shall be substituted a reference to Order 11, rule9(6).
ORDER 13
DEFAULT OF APPEARANCE TO WRIT
Claim for liquidated demand. (0.13, r.1).
1. (1) Where a writ is indorsed with a claim against a defendant fora liquidated demand only, then, if that defendant fails to enter an appearance,the plaintiff may, after the time limited for appearing, enter final judgment against that defendant for a sum not exceeding that claimed bythe writ in respect of the demand and for costs, and proceed with the actionagainst the other defendants, if any.
(2) A claim shall not be prevented from being treated for the purposes ofthis rule as a claim for a liquidated demand by reason only that part of theclaim is for interest accruing after the date of the writ at an unspecifiedrate, but any such interest shall be computed from the date of the writ to thedate of entering judgment at the rate of 6 per cent or such other rate as theChief Justice may from time to time direct.
Claim for unliquidated damages. (0.13, r.2).
2. Where a writ is indorsed with a claim against a defendant forunliquidated damages only, then, if that defendant fails to enter an appearance,the plaintiff may, after the time limited for appearing, enter interlocutoryjudgment against that defendant for damages to be assessed and costs, andproceed with the action against the other defendants, if any.
Claim in detinue. (0.13, r.3).
3. Where a writ is indorsed with a claim against a defendant relatingto the detention of movable property only, then, if that defendant fails toenter an appearance, the plaintiff may, after the time limited for appearing, athis option enter either —
(a) interlocutory judgment against the defendant for the deliveryof the property or its value to be assessed and costs; or
(b) interlocutory judgment for the value of the property to beassessed and costs,
and proceed with the action against the other defendants, if any.
Claim for possession of immovable property. (0.13, r.4).
4. (1) Where a writ is indorsed with a claim against a defendant forpossession of immovable property only, then, if that defendant fails to enter anappearance the plaintiff may, after the time limited for appearing, and onproducing a certificate by his solicitor, or
(if he sues in person) an affidavit, stating that he is not claiming anyrelief in the action of the nature specified in Order 79, rule 1, enter judgment for possession of the immovable property as against that defendantand costs, and proceed with the action against the other defendants, if any.
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(2) Where there is more than one defendant, judgment entered under this ruleshall not be enforced against any defendant unless and until judgment forpossession of the immovable property has been entered against all thedefendants.
Mixed claims. (0.13, r.5).
5. Where a writ issued against any defendant is indorsed with two ormore of the claims mentioned in the foregoing rules, and no other claim, then,if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter against the defendant such judgmentin respect of any such claim as he would be entitled to enter under these Rulesif that were the only claim indorsed on the writ, and proceed with the actionagainst the other defendants, if any.
Other claims. (0.13, r.6).
6. (1) Where a writ is indorsed with a claim of a description notmentioned in rules 1 to 4, then, if any defendant fails to enter an appearance, the plaintiff may,after the time limited for appearing and upon filing an affidavit proving dueservice of the writ on that defendant and, where the statement of claim was notindorsed on or served with the writ, upon serving a statement of claim on him,proceed with the action as if that defendant had entered an appearance.
(2) Where a writ issued against a defendant is indorsed as aforesaid, but byreason of the defendant’s satisfying the claim or complying with thedemands thereof or any other like reason it has become unnecessary for theplaintiff to proceed with the action, then if the defendant fails to enter anappearance, the plaintiff may, after the time limited for appearing, enterjudgment with the leave of the Court against that defendant for costs.
(3) An application for leave to enter judgment under paragraph (2) shall beby summons which must, unless the Court otherwise orders, and notwithstandinganything in Order 62, rule 10, be served on the defendant against whom it issought to enter judgment.
Proof of service of writ. (0.13, r.7).
7. (1) Judgment shall not be entered against a defendant under thisOrder unless —
(a) the plaintiff produces a certificate of non-appearance in Form17; and
(b) either an affidavit is filed by or on behalf of the plaintiffproving due service of the writ or notice of the writ on the defendant, or theplaintiff produces the writ indorsed by the defendant’s solicitor with astatement that he accepts service of the writ on the defendant’sbehalf.
(2) Where, in an action begun by writ, an application is made to the Courtfor an order affecting a party who has failed to enter an appearance, the Court hearing the application may require to be satisfied in such manneras it thinks fit that the party is in default of appearance.
Setting aside Judgment. (0.13, r.8).
8. The Court may, on such terms as it thinks just, set-aside or varyany judgment entered in pursuance of this Order.
ORDER 14
SUMMARY JUDGMENT
Application by plaintiff for summary judgment. (0.14, r.1).
1. (1) Where in an action to which this rule applies a statement ofclaim has been served on a defendant and that defendant has entered anappearance in the action, the plaintiff may, on the ground that that defendanthas no defence to a claim included in the writ, or to a particular part of sucha claim, or has no defence to such a claim or part except as to the amount ofany damages claimed, apply to the Court for judgment against that defendant.
(2) Subject to paragraph (3), this rule applies to every action begun bywrit 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.
(3) This Order shall not apply to an action to which Order 77 applies.
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Manner in which application under rule 1 must be made. (0.14,r.2).
2. (1) An application under rule 1 must be made by summons supportedby an affidavit in Form 18 verifying the facts on which the claim, or the partof a claim, to which the application relates is based and stating that in thedeponent’s belief there is no defence to that claim or part, as the casemay be, or no defence except as to the amount of any damages claimed.
(2) Unless the Court otherwise directs, an affidavit for the purposes ofthis rule may contain statements of information or belief with the sources andgrounds thereof.
(3) The summons, a copy of the affidavit in support and of any exhibitsreferred to therein must be served on the defendant not less than 4 clear daysbefore the return day.
Judgment for plaintiff. (0.14, r.3).
3. (1) Unless on the hearing of an application under rule 1 eitherthe Court dismisses the application or the defendant satisfies the Court withrespect to the claim, or the part of a claim, to which the application relatesthat there is an issue or question in dispute which ought to be tried or thatthere ought for some other reason to be a trial of that claim or part, the Courtmay give such judgment for the plaintiff against that defendant on that claim orpart as may be just having regard to the nature of the remedy or reliefclaimed.
(2) The Court may by order, and subject to such conditions, if any, as maybe just, stay execution of any judgment given against a defendant under thisrule until after the trial of any counterclaim made or raised by the defendantin the action.
Leave to defend. (0.14, r.4).
4. (1) A defendant may show cause against an application under rule 1by affidavit or otherwise to the satisfaction of the court.
rule.
(2) Rule 2(2) applies for the purposes of this rule as it applies for thepurposes of that
(3) The Court may give a defendant against whom such an application is madeleave to defend the action with respect to the claim, or the part of a claim, towhich the application relates either unconditionally or on such terms as togiving 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 defendantshowing cause or, where that defendant is a body corporate, any director,manager, secretary or other similar officer thereof, or any person purporting toact in any such capacity —
(a) to produce any document;
(b) if it appears to the Court that there are special circumstanceswhich make it desirable that he should do so, to attend and be examined onoath.
Application for summary judgment on counter-claim. (0.14, r.5).
5. (1) Where a defendant to an action begun by writ has served acounter-claim on the plaintiff, then, subject, to paragraph (3), the defendantmay, on the ground that the plaintiff has no defence to a claim made in thecounter-claim, or to a particular part of such a claim, apply to the Court forjudgment against the plaintiff on that claim or part.
(2) Rules 2, 3 and 4 shall apply in relation to an application under thisrule as they apply in relation to an application under rule 1 but with thefollowing modifications, that is to say —
(a) references to the plaintiff and defendant shall be construed asreferences to the defendant and plaintiff respectively;
(b) the words in rule 3(2) “any counter-claim made or raisedby the defendant in” shall be omitted; and
(c) the references in rule 4(3) to the action shall be construed as areference to the counter-claim to which the application under this rulerelates.
(3) This rule shall not apply to a counter-claim which includes any suchclaim as is referred to in rule 1(2).
Directions. (0.14, r.6).
6. (1) Where the Court —
(a) orders that a defendant or a plaintiff has leave (whetherconditional or unconditional) to defend an action or counter-claim, 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 orpart of a claim but also orders that execution of the judgment be stayed pendingthe trial of a counter-claim or of the action, as the case may be,
the Court may give directions as to the further conduct of the action andOrder 25, rules 2 to 7 shall, with the omission of so much of rule 7(1) as requires parties toserve a notice specifying the orders and directions which they require and with any other necessary modifications, apply as if the applicationunder rule l of this Order or rule 5 thereof, as the case may be, on which theorder was made were a summons for directions.
(2) In particular, and if the parties consent, the Court may direct that theclaim in question and any other claim in the action be tried by the Registrarunder the provisions of these Rules relating to the trial of causes or mattersor questions or issues by the Registrar.
Costs. (0.14, r.7).
7. (1) If the plaintiff makes an application under rule l where thecase is not within this Order or if it appears to the Court that the plaintiffknew that the defendant relied on a contention which would entitle him tounconditional leave to defend, then, without prejudice to Order 59, and, in particular, to rule 4(1) thereof, the Court may dismissthe application with costs and may require the costs to be paid by himforthwith.
(2) The Court shall have the same power to dismiss an application under rule5 as it has under paragraph (1) to dismiss an application under rule 1, and thatparagraph shall apply accordingly with the necessary modifications.
Right to proceed with residue of action or counter-claim. (0.14,r.8).
8. (1) Where on an application under rule 1 the plaintiff obtainsjudgment on a claim or a part of a claim against any defendant, he may proceedwith the action as respects any other claim or as respects the remainder of theclaim or against any other defendant.
(2) Where on an application under rule 5 a defendant obtains judgment on aclaim or part of a claim made in a counter-claim against the plaintiff, he mayproceed with the counter-claim as respects any other claim or as respects theremainder of the claim or against any other defendant to the counter-claim.
Judgment for delivery up of movable. (0.14, r.9).
9. Where the claim to which an application under rule 1 or rule 5relates is for the delivery up of specific movable property and the Court givesjudgment under this Order for the applicant, it shall have the same power toorder the party against whom judgment is given to deliver up the propertywithout giving him an option to retain it on paying the assessed value thereofas if the judgment had been given after trial.
Relief against forfeiture. (0.14, r.10).
10. A tenant shall have the same right to apply for relief afterjudgment for possession of immovable property on the ground of forfeiture fornon-payment of rent has been given under this Order as if the judgment had beengiven after trial.
Setting aside judgment. (0.14, r.11).
11. Any judgment given against a party who does not appear at thehearing of an application under rule 1 or rule 5 may be set aside or varied bythe Court on such terms as it thinks just.
ORDER 14A
DETERMINATION OF LAW OR CONSTRUCTION
Question of law. (0.14A, r.1). [S 7/99]
1. (1) The Court may upon the application of a party or of its ownmotion determine any question of law or construction of any document arising inany cause or matter at any stage of the proceedings where it appears to theCourt that —
(a) such question is suitable for determination without afull-trial of the action;
and
(b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issuetherein.
(2) Upon such determination the Court may dismiss the cause or matter ormake such order or judgment as it thinks just.
(3) The Court shall not determine any question under this Order unless theparties have had an opportunity of being heard on the question.
(4) Nothing in this Order shall limit the powers of the Court under Order18, rule 18, or any other provision of these Rules.
Application. (0.14A, r.2). [S 7/99]
2. An application under rule 1 may be made by summons or motion or(notwithstanding Order 32, rule 1) may be made orally in the course of anyinterlocutory application to the Court.
ORDER 15
CAUSES OF ACTION, COUNTER-CLAIMS AND PARTIES
Joinder of causes of action. (0.15, r.1).
1. (1) Subject to rule 5(1), a plaintiff may in one action claimrelief against the same defendant in respect of more than one cause of action—
(a) if the plaintiff claims, and the defendant is alleged to beliable, in the same capacity in respect of all the causes of action; or
(b) if the plaintiff claims or the defendant is alleged to beliable in the capacity of executor or administrator of an estate in respect ofone or more of the causes of action and in his personal capacity but withreference 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 summons supported by affidavit before the issue of the writ or originatingsummons, as the case may be, and the affidavit must state the grounds of theapplication.
Counter-claim against plaintiff. (0.15, r.2).
2. (1) Subject to rule 5(2), a defendant in any action who allegesthat he has any claim or is entitled to any relief or remedy against a plaintiffin the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action,make a counter-
claim in respect of that matter; and where he does so he must add thecounter-claim to his defence.
(2) Rule 1 shall apply in relation to a counter-claim as if thecounter-claim were a separate action and as if the person making thecounter-claim were the plaintiff and the person against whom it is made adefendant.
(3) A counter-claim may be proceeded with notwithstanding that judgment isgiven for the plaintiff in the action or that the action is stayed,discountinued or dismissed.
(4) Where a defendant establishes a counter-claim against the claim of theplaintiff and there is a balance in favour of one of the parties, the Court maygive judgment for the balance, so, however, that this provision shall not betaken as affecting the Court’s discretion with respect to costs.
Counter-claim against additional parties. (0.15, r.3).
3. (1) Where a defendant to an action who makes a counter-claimagainst the plaintiff alleges that any other person (whether or not a party tothe action) is liable to him along with the plaintiff in respect of thesubject-matter of the counter-claim, or claims against such other person anyrelief 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 whomthe counter- claim is made.
(2) Where a defendant joins a person as a party against whom he makes acounter- claim, he must add that person’s name to the title of the actionand serve on him a copy of the counter-claim; and a person on whom a copy of acounter-claim is served under this paragraph shall, if he is not already a partyto the action, become a party to it as from the time of service with the samerights in respect of his defence to the counter-claim and otherwise as if he hadbeen duly sued in the ordinary way by the party making the counter- claim.
(3) A defendant who is required by paragraph (2) to serve a copy of thecounter- claim made by him on any person who before service is already a partyto 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 counter-claim isadded.
(4) Where by virtue of paragraph (2) a copy of a counter-claim is requiredto be served on a person who is not already a party to the action, the followingprovisions of these Rules, namely, Order 10 (except rule 1(4)), Orders 11 to 13and Order 70, rule 3, shall, subject to the last foregoing paragraph, apply in relation to the counter-claim and the proceedings arising fromit as if —
(a) the counter-claim were a writ and the proceedings arising fromit an action;
and
(b) the party making the counter-claim were a plaintiff and theparty against whom it is made a defendant in that action.
(5) A copy of a counter-claim required to be served on a person who is notalready a party to the action must be indorsed with a notice, in Form 19,addressed to that person —
(a) stating the effect of Order 12, rule 1, as applied by paragraph(4); and
(b) stating that he may enter an appearance in Form 20 and explaining how he may do so.
Joinder of parties. (0.15, r.4).
4. (1) Subject to rule 5(1), two or more persons may be joinedtogether in one action as plaintiffs or as defendants with the leave of theCourt or where —
(a) if separate actions were brought by or against each of them, asthe case may be, some common question of law or fact would arise in all theactions; and
(b) all rights to relief claimed in the action (whether they arejoint, 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 otherperson is entitled jointly with him, all persons so entitled must, subject tothe provisions of any written law and unless the Court gives leave to thecontrary, be parties to the action and any of them who does not consent to beingjoined as plaintiff must, subject to any order made by the Court on anapplication for leave under this paragraph, be made a defendant.
This paragraph shall not apply to a probate action.
(3) Where relief is claimed in an action against a defendant who is jointlyliable with some other person and also severally liable, that other person neednot be made a defendant to the action; but where persons are jointly, but notseverally, liable under a contract and relief is claimed against some but notall of those persons in an action in respect of that contract, the Court may, onthe application of any defendant to the action, by order stay proceedings in theaction until the other persons so liable are added as defendants.
Court may order separate trials etc. (0.15, r.5).
5. (1) If claims in respect of two or more causes of action areincluded by a plaintiff in the same action or by a defendant in a counter-claim,or if two or more plaintiffs or defendants are parties to the same action, andit appears to the Court that the joinder of causes of action or of parties, asthe cause 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 beexpedient.
(2) If it appears on the application of any party against whom acounter-claim is made that the subject-matter of the counter-claim ought for anyreason to be disposed of by a separate action, the Court may order thecounter-claim to be struck out or may order it to be tried separately or makesuch other order as may be expedient.
Misjoinder and non-joinder of parties. (0.15, r.6).
6. (1) No cause or matter shall be defeated by reason of themisjoinder or non-joinder of any party; and the Court may in any cause or matterdetermine the issues or questions in dispute so far as they affect the rightsand interests of the persons who are parties to the cause or matter.
(2) At any stage of the proceedings in any cause or matter the Court may onsuch terms as it thinks just and either of its own motion or on application—
(a) order any person who has been improperly or unnecessarily madea party or who has for any reason ceased to be a proper or necessary party, tocease 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 presencebefore the Court is necessary to ensure that all matters in dispute in the causeor matter may be effectually and completely determined and adjudicated upon;or
(ii) any person between whom and any party to the cause or matter theremay exist a question or issue arising out of or relating to orconnected with any relief or remedy claimed in the cause or matter which in theopinion of the Court it would be just and convenient to determine as between himand that party as well as between the parties to the cause or matter,
but no person shall be added as a plaintiff without his consent signified inwriting or in such other manner as may be authorised.
(3) An application by any person for an order under paragraph (2) adding himas a party must, except with the leave of the Court, be supported by anaffidavit showing his interest in the matters in dispute in the cause or matteror, as the case may be, the question or issue to be determined as between himand any party to the cause or matter.
Proceedings against estates. (0.15, r.6A).
6A. (1) Where any person against whom an action would have lain hasdied but the cause of action survives, the action may, if no grant of probate oradministration has been made, be brought against the estate of the deceased.
(2) Without prejudice to the generality of paragraph (1), an action broughtagainst “the personal representatives of A.B. deceased” shall betreated, for the purposes of that paragraph, as having been brought against hisestate.
(3) An action purporting to have been commenced against a person shall betreated, if he was dead at its commencement, as having been commenced againsthis estate in accordance with paragraph (l), whether or not a grant of probateor 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 serviceof the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased’s estate for the purposeof the proceedings or, if a grant of probate or administration has been made, for an order that the personal representative of the deceased bemade a party to the proceedings, and in either case for an order that theproceedings be carried on against the person appointed or, as the case may be,against the personal representative, as if he had been substituted for theestate;
(b) the Court may, at any stage of the proceedings and on suchterms as it thinks just and either of its own motion or on application, make anysuch 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 inorder to ensure that all matters in dispute in the proceedings may beeffectually and completely determined and adjudicated upon.
(5) Before making an order under paragraph (4) the Court may require noticeto be given to any insurer of the deceased who has an interest in theproceedings and to such (if any) of the persons having an interest in the estateas it thinks fit.
(5A) Where an order is made under paragraph (4) appointing the ProbateOfficer to represent the deceased’s estate, the appointment shall belimited to his accepting service of the writ or originating summons by which theaction was begun unless, either on making such an order or on a subsequentapplication, the court, with the consent of the Probate Officer, directs thatthe appointment shall extend to taking further steps in the proceedings.
(6) Where an order is made under paragraph (4), rules 7(4) and 8(3) and (4)shall apply as if the order had been made under rule 7 on the application of theplaintiff.
(7) Where no grant of probate or administration has been made, any judgmentor order given or made in the proceedings shall bind the estate to the sameextent as it would have been bound if a grant had been made and a personalrepresentative of the deceased had been a party to the proceedings.
Change of parties by reason of deaths etc. (0.15, r.7).
7. (1) Where a party to an action dies or becomes bankrupt but thecause of action survives, the action shall not abate by reason of the death orbankruptcy.
(2) Where at any stage of the proceedings in any cause or matter theinterest or liability of any party is assigned or transmitted to or devolvesupon some other person, the Court may, if it thinks it necessary in order toensure that all matters in dispute in the cause or matter may be effectually andcompletely determined and adjudicated upon, order that other person to be made aparty to the cause or matter and the proceedings to be carried on as if he hadbeen substituted for the first-mentioned party.
An application for an order under this paragraph may be made exparte.
(3) An order may be made under this rule for a person to be made a party toa cause or matter notwithstanding that he is already a party to it on the otherside 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 betreated as containing a direction that he shall cease to be a party on thatother side; and
(b) if he is already a party on the same side but in anothercapacity, the order may contain a direction that he shall cease to be a party inthat other capacity.
(4) The person on whose application an order is made under this rule mustprocure the order to be noted in the cause book, and after the order has been sonoted that person must, unless the Court otherwise directs, serve the order onevery other person who is a party to the cause or matter or who becomes orceases to be a party by virtue of the order and serve with the order on anyperson who becomes a defendant a copy of the writ or originating summons bywhich the cause or matter was begun.
(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 mustbe made within 14 days after the service of the order on that person.
Provisions consequential on making of order under rule 6 or 7. (0.15,r.8).
8. (1) Where an order is made under rule 6 the writ by which theaction in question was begun must be amended accordingly and must be indorsedwith —
(a) a reference to the order in pursuance of which the amendment ismade; and
(b) the date on which the amendment is made,
and the amendment must be made within such period as may be specified in theorder or, if no period is so specified, within 14 days after the making of theorder.
(2) Where by an order under rule 6 a person is to be made a defendant, therules as to service of a writ of summons shall apply accordingly to service ofthe amended writ on him, but before serving the writ on him the person on whoseapplication the order was made must procure the order to be noted in the causebook.
(3) Where by an order under rule 6 or 7 a person is to be made a defendant,the rules as to entry of appearance shall apply accordingly to entry ofappearance by him, subject, in the case of a person to be made a defendant by anorder under rule 7, to the modification that the time limited for appearingshall begin with the date on which the order is served on him under rule 7(4)or, if the order is not required to be served on him, with the date on which theorder is noted in the cause book. The entry of appearance must be in Form21.
(4) Where by an order under rule 6 or 7 a person is to be added as a partyor is to be made a party in substitution for some other party, that person shallnot become a party until —
(a) where the order is made under rule 6, the writ has been amendedin relation to him under this rule and (if he is a defendant) has been served onhim; or
(b) where the order is made under rule 7, the order has been servedon him under rule 7(4) or, if the order is not required to be served on him, theorder has been noted in the cause book,
and where by virtue of the foregoing provision a person becomes a party insubstitution for some other party, all things done in the course of theproceedings before the making of the order shall have effect in relation to thenew party as they had in relation to the old, except that entry of appearance bythe old party shall not dispense with entry of appearance by the new in Form21.
(5) The foregoing provisions of this rule shall apply in relation to anaction begun by originating summons as they apply in relation to an action begunby writ.
Failure to proceed after death of party. (0.15, r.9).
9. (1) If after the death of a plaintiff or defendant in any actionthe cause or action survives, but no order under rule 7 is made substituting asplaintiff 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 thecase may be, those representatives may apply to the Court for an order thatunless the action is proceeded with within such time as may be specified in theorder the action shall be struck out as against the plaintiff or defendant, asthe case may be, who has died; but where it is the plaintiff who has died, theCourt shall not make an order under this rule unless satisfied that due noticeof the application has been given to the personal representatives (if any) ofthe deceased plaintiff and to any other interested persons who, in the opinionof the Court, shall be notified.
(2) Where in any action a counter-claim is made by a defendant, this ruleshall apply in relation to the counter-claim as if the counter-claim were aseparate action and as if the defendant making the counter-claim were theplaintiff and the person against whom it is made a defendant.
Action for possession of immovable property. (0.15, r.10).
10. (1) Without prejudice to rule 6, the Court may at any stage ofthe proceedings in an action for possession of immovable property order anyperson not a party to the action who is in possession of the immovable property(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 bysummons ex parte , supported by an affidavit showing that he is in possession of the immovable property in question and if by a tenant,naming him.
(3) A person added as a defendant by an order under this rule must serve acopy of the order on the plaintiff and must enter an appearance in the actionwithin such period, if any, as may be specified in the order or, if no period isso specified, within 7 days after the making of the order, and the rules as toentry of appearance shall apply accordingly to entry of appearance by him.
Relator actions. (0.15, r.11).
11. 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 hissolicitor and the authorisation must be filed in the Registry.
Representative proceedings. (0.15, r.12).
12. (1) Where numerous persons have the same interest in anyproceedings, not being such proceedings as are mentioned in rule 13, theproceedings may be begun, and, unless the Court otherwise orders, continued, byor against any one or more of them as representing all or as representing allexcept one or more of them.
(2) At any stage of proceedings under this rule the Court may, on theapplication 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 whomthe defendants are sued to represent all, or all except one or more, of thosepersons in the proceedings; and where, in exercise of the power conferred bythis paragraph, the Court appoints a person not named as a defendant, it shallmake an order under rule 6 adding that person as a defendant.
(3) A judgment or order given in proceedings under this rule shall bebinding on all the persons as representing whom the plaintiffs sue or, as thecase may be, the defendants are sued, but shall not be enforced against anyperson 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 madeby summons which must be served personally on the person against whom it issought to enforce the judgment or order.
(5) Notwithstanding that a judgment or order to which any such applicationrelates is binding on the person against whom the application is made, thatperson may dispute liability to have the judgment or order enforced against himon the ground that by reason of facts and matters particular to his case he isentitled 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 againstthe person against whom the application is made to be tried and determined inany manner in which any issue or question in an action may be tried anddetermined.
Representation of interested person who cannot be ascertained etc. (0.15,r.13).
13. (1) In any proceeding concerning —
(a) the administration of 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 moreof the conditions specified in paragraph (2) are satisfied, may appoint one ormore persons to represent any person (including an unborn person) or class whois or may be interested (whether presently or for any future, contingent orunascertained 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, cannotbe ascertained or cannot readily be ascertained;
(b) that the person, class or some member of the class, thoughascertained, 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 andthe degree of difficulty of the point to be determined) to exercise the powerfor the purpose of saving expense.
(3) Where in any proceedings to which paragraph (1) applies, the Courtexercises the power conferred by that paragraph, a judgment or order of theCourt given or made when the person or persons appointed in exercise of thatpower are before the Court shall be binding on the person or class representedby the person or persons so appointed.
(4) Where, in any such proceedings, a compromise is proposed and some of thepersons who are interested in, or who may be affected by, the compromise are notparties to the proceedings (including unborn or unascertained persons) but—
(a) there is some other person in the same interest before theCourt who assents to the compromise or on whose behalf the Court sanctions thecompromise; or
(b) the absent persons are represented by a person appointed underparagraph (1) who so assent,
the Court, if satisfied that the compromise will be for the benefit of theabsent persons and that it is expedient to exercise this power, may approve thecompromise and order that it shall be binding on the absent persons, and theyshall be bound accordingly except where the order has been obtained by fraud ornon-disclosure of material facts.
Representation of beneficiaries by trustees etc. (0.15, r.14).
14. (1) Any proceedings, including proceedings to enforce a securityby foreclosure or otherwise, may be brought by or against trustees, executors or administrators in their capacity as such without joining any ofthe persons having a beneficial interest in the trust or estate, as the case maybe; 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 oradministrators, as the case may be, could not or did not in fact represent theinterest of those persons in the first-mentioned proceedings.
(2) Paragraph (1) is without prejudice to the power of the Court to orderany person having such an interest as aforesaid to be made a party to theproceedings or to make an order under rule 13.
Representation of deceased person interested in proceedings. (0.15,r.15).
15. (1) Where in any proceedings it appears to the Court that adeceased 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 theproceedings, proceed in the absence of a person representing the estate of thedeceased person or may by order appoint a person to represent that estate forthe purposes of the proceedings; and any such order, and any judgment or ordersubsequently given, or made in the proceedings, shall bind the estate of thedeceased person to the same extent as it would have been bound had a personalrepresentative of that person been a party to the proceedings.
(2) Before making an order under this rule, the Court may require notice ofthe application for the order to be given to such (if any) of the persons havingan interest in the estate as it thinks fit.
Declaratory judgment. (0.15, r.16).
16. No action or other proceeding shall be open to objection on theground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether or notconsequential relief is or could be claimed.
Conduct of proceedings. (0.15, r.17).
17. The Court may give the conduct of any action, inquiry or otherproceeding to such person as it thinks fit.
ORDER 16
THIRD PARTY AND SIMILAR PROCEEDINGS
Third party notice. (0.16, r.1).
1. (1) Where in any action a defendant who has entered an appearance—
(a) claims against a person not already a party to the action anycontribution or indemnity; or
(b) claims against such a person any relief or remedy relating toor connected with the original subject-matter of the action and substantiallythe same as some relief or remedy claimed by the plaintiff; or
(c) requires that any question or issue relating to or connected withthe original subject-matter of the action should be determined not only asbetween the plaintiff and the defendant but also as between either or both ofthem and a person not already a party to the action,
then, subject to paragraph (2), the defendant may issue a notice in Form 22or Form 23, whichever is appropriate (in this Order referred to as a third partynotice), 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 orof the question or issue required to be determined.
(2) A defendant to an action may not issue a third party notice without theleave of the Court unless the action was begun by writ and he issues the noticebefore serving his defence on the plaintiff.
(3) Where a third party notice is served on the person against whom it isissued, he shall as from the time of service be a party to the action (in thisOrder referred to as a third party) with the same rights in respect of hisdefence against any claim made against him in the notice and otherwise as if hehad been duly sued in the ordinary way by the defendant by whom the notice isissued.
Application for leave to issue third party notice. (0.16, r.2).
2. (1) Application for leave to issue a third party notice may bemade by ex parte
summons in Form 24 but the Court may direct the summons to be served.
(2) An application for leave to issue a third party notice must be supportedby an affidavit stating —
(a) the nature of the claim made by the plaintiff in theaction;
(b) the stage which proceedings in the action have reached;
(c) the nature of the claim made by the applicant or particulars ofthe question or issue required to be determined, as the case may be, and thefacts on which the proposed third party notice is based; and
(d) the name and address of the person against whom the third partynotice is to be issued.
Issue and service of, and entry of appearance to third party notice. (0.16, r.3).
3. (1) The order granting leave to issue a third party notice maycontain 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 thepleadings (if any) served in the action.
(3) Subject to the foregoing provisions of this rule, the followingprovisions of these Rules, namely, Order 6, rule 6(3), Order 10 (except rule 1(4)), Order 11,Order 12 and Order 70, rule 3, shall apply in relation to a third party notice and to theproceedings begun thereby as if —
(a) the third party notice were a writ and the proceedings begunthereby an action; and
(b) the defendant issuing the third party notice were a plaintiffand the person against whom it is issued a defendant in that action.
Third party directions. (0.16, r.4).
4. (1) If the third party enters an appearance in Form 25, thedefendant who issued third party notice must, by summons in Form 26 to be servedon 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), thethird party may, not earlier than 7 days after entering an appearance, bysummons in Form 26 to be served on all the other parties to the action, apply tothe Court for directions or for an order to set aside the third partynotice.
(3) On an application for directions under this rule the Court may—
(a) if the liability of the third party to the defendant who issuedthe third party notice is established on the hearing, order such judgment as thenature of the case may require to be entered against the third party in favourof the defendant; or
(b) order any claim, question or issue stated in the third partynotice to be tried in such manner as the Court may direct; or
(c) dismiss the application and terminate the proceedings on the thirdparty notice,
and may do so either before or after any judgment in the action has beensigned by the plaintiff against the defendant.
(4) On an application for directions under this rule the Court may give thethird party leave to defend the action, either alone or jointly with anydefendant, upon such terms as may be just, or to appear at the trial and to takesuch part therein as may be just, and generally may make such orders and givesuch directions as appear to the Court proper for having the rights andliabilities of the parties most conveniently determined and enforced and as tothe extent to which the third party is to be bound by any judgment or decisionin the action.
(5) Any order made or direction given under this rule must be in Form 27 andmay be varied or rescinded by the Court at any time.
Default of third party etc. (0.16, r.5).
5. (1) If a third party does not enter an appearance or, having beenordered to serve a defence, fails to do so —
(a) he shall be deemed to admit any claim stated in the third partynotice and shall be bound by any judgment (including judgment by consent) ordecision in the action in so far as it is relevant to any claim, question orissue stated in that notice; and
(b) the defendant by whom the third party notice was issued may, ifjudgment in default is given against him in the action, at any time aftersatisfaction of that judgment and, with the leave of the Court, before satisfaction thereof, enter judgment against the third party in respect of anycontribution or 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 claimedtherein.
(2) If a third party or the defendant by whom a third party notice wasissued makes default in serving any pleading which he is ordered to serve, the Court may, on the application by summons of that defendant orthe third party, as the case may be, order such judgment to be entered for theapplicant as he is entitled to on the pleadings or may make such other order asmay appear to the Court necessary to do justice between the parties.
(3) The Court may at any time set aside or vary a judgment entered underparagraph (1) (b) or paragraph (2) on such terms (if any) as it thinks just.
Setting aside third party proceedings. (0.16, r.6).
6. Proceedings on a third party notice may, at any stage of theproceedings, be set aside by the Court.
Judgment between defendant and third party. (0.16, r.7).
7. (1) Where in any action a defendant has served a third partynotice, the Court may at or after the trial of the action, or, if the action isdecided otherwise than by trial, on an application by summons or motion, ordersuch judgment as the nature of the case may require to be entered for thedefendant against the third party or for the third party against thedefendant.
(2) Where in an action judgment is given against a defendant and judgment isgiven for the defendant against a third party, execution shall not be issuedagainst the third party without the leave of the Court until the judgmentagainst the defendant has been satisfied.
Claims and issues between a defendant and some other party. (0.16,r.8).
8. (1) Where in any action a defendant who has entered an appearance—
(a) claims against a person who is already a party to the actionany contribution or indemnity; or
(b) claims against such a person any relief or remedy relating toor connected with the original subject-matter of the action and substantiallythe same as some relief or remedy claimed by the plaintiff; or
(c) requires that any question or issue relating to or connected withthe original subject-matter of the action should be determined not only asbetween the plaintiff and himself but also as between either or both of them andsome other person who is already a party to the action,
then, subject to paragraph (2), the defendant may, without leave, issue andserve on that person a notice containing a statement of the nature and groundsof his claim or, as the case may be, of the question or issue required to bedetermined.
(2) Where a defendant makes such a claim as is mentioned in paragraph (1)and that claim could be made by him by counter-claim in the action, paragraph(1) shall not apply in relation to the claim.
(3) No appearance to such a notice shall be necessary if the person on whomit is served has entered an appearance in the action or is a plaintiff therein,and the same procedure shall be adopted for the determination between thedefendant 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 Orderif the person served with the notice were a third party and (where he hasentered an appearance in the action or is a plaintiff) had entered an appearanceto the notice.
(4) Rule 4(2) shall have effect in relation to proceedings on a noticeissued under this rule as if for the words “7 days after entering anappearance” there were substituted the words “14 days after serviceof the notice on him”.
Claims by third and subsequent parties. (0.16, r.9).
9. (1) Where a defendant has served a third party notice and thethird party makes such a claim or requirement as is mentioned in rule 1 or rule8, this Order shall, with the modification mentioned in paragraph (2) and anyother necessary modifications, apply as if the third party were a defendant; andsimilarly where any further person to whom by virtue of this rule this Orderapplies 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 thirdparty in substitution for rule 1(2).
(3) A third party may not issue a notice under rule 1 without the leave ofthe Court unless the action in question was begun by writ and he issues thenotice before the expiration of 14 days after the time limited for appearing tothe notice issued against him.
Offer of contribution. (0.16, r.10).
10. If, before the trial of an action, a party to the action who,either as a third party or as one of two or more tortfeasors liable in respectof the same damage, stands to be held liable in the action to another party tocontribute towards any debt or damages which may be recovered against that otherparty in the action, makes (without prejudice to his defence) a written offer tothat 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 theattention of the Judge at the trial, the offer shall not be brought to theattention of the Judge until after all questions of liability and amount of debtor damages have been decided.
Counterclaim by defendant. (0.16, r.11).
11. Where in any action a counterclaim is made by a defendant, theforegoing provisions of this Order shall apply in relation to the counter-claimas if the subject-matter of the counter-claim were the original subject-matterof the action, and as if the person making the counter-claim were the plaintiffand the person against whom it is made a defendant.
ORDER 17
INTERPLEADER
Entitlement to relief by way of interpleader. (0.17, r.1).
1. (1) Where —
(a) a person is under a liability in respect of a debt or inrespect of any money, goods or chattels and he is, or expects to be, sued for orin respect of that debt or money or those goods or chattels by two or morepersons making adverse claims thereto; or
(b) claim is made to any money, goods or chattels taken or intendedto be taken by a sheriff in execution under any process, or to the proceeds orvalue of any such goods or chattels, by a person other than the person againstwhom 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 ofinterpleader.
(2) References in this Order to a sheriff shall be construed as includingreferences to any other officer charged with the execution of process by orunder the authority of the High Court.
Claim to goods etc. taken in execution. (0.17, r.2).
2. (1) Any person making a claim to or in respect of any money, goods or other movable property taken or intended to be taken inexecution under process of the Court, or to the proceeds or value of any suchgoods or property, must give notice of his claim in Form 28 to the sheriff charged with the execution of the process and must includein his notice a statement of his address, and that address shall be his addressfor service.
(2) On receipt of a claim made under this rule the sheriff must forthwithgive notice thereof in Form 29 to the execution creditor and the executioncreditor must within 4 days after receiving the notice, give notice in Form 30to the sheriff informing him whether he admits or disputes the claim.
An execution creditor who gives notice in.accordance with this paragraphadmitting a claim shall only be liable to the sheriff for any fees and expensesincurred by the sheriff before receipt of that notice.
(3) Where —
(a) the sheriff receives a notice from an execution creditor underparagraph (2) disputing a claim, or the execution creditor fails, within theperiod mentioned in that paragraph, to give the required notice; and
(b) the claim under this rule is not withdrawn, the sheriff mayapply to the Court for relief under this Order.
(4) A sheriff who receives a notice from an execution creditor underparagraph (2) admitting a claim under this rule shall withdraw from possessionof the money, goods or other movable property claimed.
Mode of application. (0.17, r.3).
3. (1) An application for relief under this Order must be made byoriginating summons unless made in a pending action, in which case it must bemade by summons in the action in Form 31 or Form 32 whichever isappropriate.
(2) No appearance need be entered to an originating summons under thisrule.
(3) Subject to paragraph (4), a summons under this rule must be supported byevidence that the applicant —
(a) claims no interest in the subject matter in dispute other thanfor charges or costs;
(b) does not collude with any of the claimants to thatsubject-matter; and
(c) is willing to pay or transfer that subject-matter into Court or todispose of it as the Court may direct.
(4) Where the applicant is a sheriff, he shall not provide such evidence asis referred to in paragraph (3) unless directed by the Court so to do.
Service of summons. (0.17, r.4).
4. (1) Unless the Court otherwise orders, the originating summons oran interpleader summons ordered under rule 3 must be served personally at least7 days before the return day.
(2) An interpleader summons must be in one of the forms in Form 33.
Powers of Court hearing summons. (0.17, r.5).
5. (1) Where on the hearing of a summons under this Order all thepersons by whom adverse claims to the subject-matter in dispute (hereafter inthis Order referred to as “the claimants”) appear, the Court mayorder —
(a) that any claimant be made a defendant in any action pendingwith respect to the subject-matter in dispute in substitution for or in additionto the applicant for relief under his Order; or
(b) that an issue between the claimants be stated and tried and maydirect 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 lawand the facts are not in dispute,
the Court may summarily determine the question at issue between the claimantsand make an order accordingly on such terms as may be just.
(3) Where a claimant, having been duly served with a summons for reliefunder this Order, does not appear on the hearing of the summons or, havingappeared, fails or refuses to comply with an order made in the proceedings, theCourt may make an order declaring the claimant, and all persons claiming underhim, for ever barred from prosecuting his claim against the applicant for suchrelief and all persons claiming under him, but such an order shall not affectthe rights of the claimants as between themselves.
Power to order sale of goods taken in execution. (0.17, r.6).
6. Where an application for relief under this Order is made by asheriff who has taken possession of any goods or other movable property inexecution under any process, and a claimant alleges that he is entitled, under abill of sale or otherwise, to the goods or property by war of security for debt,the Court may order those goods or property or any part thereof to be sold andmay direct that the proceeds of sale be applied in such manner and on such termsas may be just and as may be specified in the order.
Power to stay proceedings. (0.17, r.7).
7. Where a defendant to an action applies for relief under this Orderin the action, theCourt may by order stay all further proceedings in the action.
Other powers. (0.17, r.8).
8. Subject to the foregoing rules of this Order, the Court may in orfor the purposes of any interpleader proceedings make such order as to costs orany other matter as it thinks just.
One order in several causes or matters. (0.17, r.9).
9. Where the Court considers it necessary or expedient to make an order in any interpleader proceedings in several causes or matterspending before different Judges, the Court may make such an order; and the ordershall be entitled in all those causes or matters and shall be binding on all theparties to them.
Discovery. (0.17, r.10).
10. Orders 24 and 26 shall, with the necessary modifications, apply inrelation to an interpleader issue as they apply in relation to any other causeor matter.
Trial of interpleader issue. (0.17, r.11).
11. (1) Order 35 shall, with the necessary modifications, apply to the trial of an interpleader issue as it applies to the trial ofan action.
(2) The Court by whom an interpleader issue is tried may give such judgmentor make such order as finally to dispose of ail questions arising in theinterpleader proceedings.
(3) The judgment must be in one of the forms in Form 34.
ORDER 18
PLEADINGS
Service of statement of claim. (0.18, r.1).
1. Unless the Court gives leave to the contrary or a statement ofclaim is indorsed on the writ, the plaintiff must serve a statement of claim onthe defendant or, if there are two or more defendants, on each defendant, andmust do so either when the writ, or notice of the writ, is served on thatdefendant or at any time after service of the writ or notice but before theexpiration of 14 days after that defendant enters an appearance.
Service of defence. (0.18, r.2).
2. (1) Subject to paragraph (2), a defendant who enters an appearancein, and intends to defend, an action must, unless the Court gives leave to thecontrary, serve a defence on the plaintiff before the expiration of 14 daysafter the time limited for appearing or after the statement of claim is servedon him, whichever is the later.
(2) If a summons under Order 14, rule 1, is served on a defendant before heserves his defence, paragraph (1) shall not have effect in relation to himunless by the order made on the summons he is given leave to defend the actionand, in that case, shall have effect as if it required him to serve his defencewithin 14 days after the making of the order or within such other period as maybe specified therein.
Service of reply and defence to counter-claim. (0.18, r.3).
3. (1) A plaintiff on whom a defendant serves a defence must serve areply on that defendant if it is needed for compliance with rule 8; and if noreply is served, rule 14(1) will apply.
(2) A plaintiff on whom a defendant serves a counter-claim must, if heintends to defend it, serve on that defendant a defence to counter-claim.
(3) Where a plaintiff serves both a reply and a defence to counter-claim onany defendant, he must include them in the same document.
(4) A reply to any defence must be served by the plaintiff before theexpiration of 14 days after the service on him of that defence, and a defence tocounterclaim must be served by the plaintiff before the expiration of 14 daysafter the service on him of the counter-claim to which it relates.
Pleadings subsequent to reply. (0.18, r.4).
4. No pleading subsequent to a reply or a defence to counterclaimshall be served except with the leave of the Court.
Pleadings: Formal requirements. (0.18, 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 thenumber of the action;
(b) the title of the action; and
(c) the description of the pleading.
(2) Every pleading must, if necessary, be divided into paragraphs numbered consecutively, each allegation being in so far as convenient contained in a separate paragraph.
(3) Dates, sums and other numbers must be expressed in a pleading in figuresand not in words.
(4) Every pleading of a party must be indorsed —
(a) where the party sues or defends in person, with his name andaddress;
(b) in any other case, with the name or firm and business addressof the solicitor by whom it was served.
(5) Every pleading of a party must be signed by the party’s solicitoror by the party, if he sues or defends in person.
Facts, not evidence, to be pleaded. (0.18, r.6).
6. (1) Subject to the provisions of this rule and rules 10, 11 and12, every pleading must contain, and contain only, a statement in a summary formof the material facts on which the party pleading relies for his claim ordefence, as the case may be, but not the evidence by which those facts are to beproved, 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 thepurport of any conversation referred to in the pleading must, if material, bebriefly stated, and the precise words of the document or conversation shall notbe 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 orthe burden of disproving it lies on the other party, unless the other party hasspecifically 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 beimplied in his pleading.
Matters which must be specificially pleaded. (0.18, 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 showingillegality —
(a) which he alleges makes any claim or defence of the oppositeparty not maintainable; or
(b) which, if not specifically pleaded, might take the oppositeparty by surprise;
or
(c) which raises issues of fact not arising out of the precedingpleading.
(2) Without prejudice to paragraph (1), a defendant to an action for therecovery of immovable property must plead specifically every ground of defenceon which he relies, and a plea that he is in possession of the immovableproperty by himself or his tenant is not sufficient.
Conviction. (0.18, r.7A). [S 7/99]
7A. (1) If in any action which is to be tried with pleadings anyparty intends to adduce evidence that a person was convicted of an offence by or before a Court in Brunei Darussalam or by a Court-Martialthere or elsewhere, he must include in his pleading a statement of his intentionwith 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 isrelevent.
(2) If in any action which is to be tried with pleadings any party intendsto adduce evidence that a person was found guilty of adultery in matrimonialproceedings or has been found to be the father of a child in relevant proceedings before any Court in Brunei Darussalam or has been adjudged tobe the father of a child in affiliation proceedings before a Court in BruneiDarussalam, he must include in his pleading a statement of his intention withparticulars of —
(a) the finding or adjudication and the date thereof;
(b) the Court which made the finding or adjudication and theproceedings in which it was made; and
(c) the issue in the proceedings to which the finding or adjudicationis relevant.
(3) Where a party’s pleading includes such a statement as is mentionedin paragraph(1) or (2) then if the opposite party —
(a) denies the conviction, finding of adultery or adjudication ofpaternity to which the statement relates; or
(b) alleges that the conviction, finding or adjudication waserroneous; or
(c) denies that the conviction, finding or adjudication is relevant toany issue in the proceedings,
he must make the denial or allegation in his pleading.
Matter may be pleaded whenever arising. (0.18, r.8).
8. Subject to rules 7(1), 10 and 15(2), a party may in any pleadingplead any matter which has arisen at any time, whether before or since the issueof the writ.
Departure. (0.18, 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 ofhis.
(2) Paragraph (1) shall not be taken as prejudicing the right of a party toamend, or apply for leave to amend his previous pleading so as to plead theallegations or claims in the alternative.
Points of law may be pleaded. (0.18, r.10).
10. A party may by his pleading raise any point of law.
Particulars of pleading. (0.18, r.11).
11. (1) Subject to paragraph (2), every pleading must contain thenecessary 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 anyperson, whether any disorder or disability of mind or any malice, fraudulentintention or other condition of mind except knowledge, particulars of the factson which the party relies.
(1A) Subject to paragraph (1B), a plaintiff in action for personal injuriesshall serve with his statement of claim — [S 77/00]
(a) a medicial report; and
(b) a statement of the special damages claimed.
(1B) Where the documents to which paragraph (1A) applies are not served withthe statement of claim, the Court may — [S 77/00]
(a) specify the period of time within which they are to beprovided; or
(b) make such other order as it thinks fit (including an orderdispensing with the requirements of paragraph (1A) or staying theproceedings).
(1C) For the purposes of this rule — [S 77/00]
“medical report” means a report substantiating all the personalinjuries alleged in the statement of claim which the plaintiff proposes toadduce in evidence as part of his case at the trial;
“a statement of the special damages claimed” means a statementgiving full particulars of the special damages claimed for expenses and losses already incurred and an estimate of any future expenses and losses(including loss of earings and of pension rights).
(2) Where it is necessary to give particulars of debt, expenses or damagesand those particulars exceed 3 folios, they must be set out in a separatedocument referred to in the pleading and the pleading must state whether thedocument has already been served and, if so, when, or is to be served with thepleading.
(3) The Court may order a party to serve on any other party particulars ofany claim, defence or other matter stated in his pleading, or in any affidavitof his ordered to stand as a pleading, or a statement of the nature of the caseon which he relies, and the order may be made on such terms as the Court thinksjust.
(4) Where a party alleges as a fact that a person had knowledge or notice ofsome fact, matter or thing, then, without prejudice to the generality ofparagraph (3), the Court may, on such terms as it thinks just, order that partyto serve on any other party —
(a) where he alleges knowledge, particulars of the facts on whichhe 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 defenceunless, in the opinion of the Court, the order is necessary or desirable toenable the defendant to plead or for some other special reason.
(6) Where the applicant for an order under this rule did not apply by letterfor the particulars he requires, the Court may refuse to make the order unlessof opinion that there were sufficient reasons for an application by letter nothaving been made.
(7) The particulars requested or ordered and supplied must be served inaccordance with Form 35.
Admissions and denials. (0.18, r.12).
12. (1) Subject to paragraph (4), any allegation of fact made by aparty in his pleading is deemed to be admitted by the opposite party unless itis traversed by that party in his pleading or a joinder of issue under rule 14operates as a denial of it.
(2) A traverse may be made either by a denial or by a statement ofnon-admission and either expressly or by necessary implication.
(3) Subject to paragraph (4) every allegation of fact made in a statement ofclaim or counterclaim which the party on whom it is served does not intend toadmit must be specifically traversed by him in his defence or defence tocounterclaim, as the case may be; and a general denial of such allegations, or ageneral statement of non-admission of them, is not a sufficient traverse ofthem.
(4) Any allegation that a party has suffered damage and any allegation as tothe amount of damages is deemed to be traversed unless specificallyadmitted.
Denial by joinder of issue. (0.18, r.13).
13. (1) If there is no reply to a defence, there is an impliedjoinder of issue on that defence.
(2) Subject to paragraph (3) —
(a) there is at the close of pleadings an implied joinder of issueon the pleading last served; and
(b) a party may in his pleading expressly join issue on the nextpreceding pleading.
(3) There can be no joinder of issue, implied or express, on a statement ofclaim or counterclaim.
(4) A joinder of issue operates as a denial of every material allegation offact made in the pleading on which there is an implied or express joinder ofissue unless, in the case of an express joinder of issue, any such allegation isexcepted from the joinder and is stated to be admitted, in which case theexpress joinder of issue operates as a denial of every other suchallegation.
Statement of claim. (0.18, r.14).
14. (1) A statement of claim must state specifically the relief orremedy which the plaintiff claims; but costs need not be specificallyclaimed.
(2) A statement of claim must not contain any allegation or claim in respectof a cause of action unless that cause of action is mentioned in the writ orarises from facts which are the same as, or include or form part of, factsgiving rise to a cause of action so mentioned; but, subject to that, a plaintiffmay in his statement of claim alter, modify or
extend any claim made by him in the indorsement of the writ without amending the indorsement.
Defence of tender. (0.18, 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 allegedto have been tendered, and the tender shall not be available as a defence unlessand until payment into Court has been made.
Defence of set-off. (0.18, r.16).
16. Where a claim by a defendant to a sum of money (whether of anascertained amount or not) is relied on as a defence to the whole or part of aclaim made by the plaintiff, it may be included in the defence and set-offagainst the plaintiff’s claim, whether or not it is also added as acounter-claim.
Counterclaim and defence to counter-claim. (0.18, r.17).
17. Without prejudice to the general application of this Order to acounter-claim and a defence to counter-claim or to any provision thereof which applies to either of those pleadings specifically —
(a) rule 15(1) shall apply to a counter-claim as if thecounter-claim were a statement of claim and the defendant making it aplaintiff.
(b) rules 8(2), 16 and 17 shall, with the necessary modifications,apply to a defence to counter-claim as they apply to a defence.
Striking out pleadings and indorsements. (0.18, r.18).
18. (1) The Court may at any stage of the proceedings order to bestruck 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 thecase 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 enteredaccordingly, 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 summonsand a petition as if the summons or petition, as the case may be, were apleading.
Close of pleadings. (0.18, 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, ifthere is no reply but only a defence to counter-claim, after service of thedefence to counter-claim; or
(b) if neither a reply nor a defence to counter-claim is served, atthe expiration of 14 days after service of the defence.
(2) The pleadings in an action are deemed to be closed at the time providedby paragraph (1) notwithstanding that any request or order for particulars hasbeen made but has not been complied with at that time.
Filing of pleadings. (0.18, r.20).
20. Every pleading must be filed in the Registry.
Trial without pleadings. (0.18, r.21).
21. (1) Where in an action to which this rule applies any defendanthas entered an appearance in the action, the plaintiff or that defendant mayapply to the Court by summons for an order that the action shall be triedwithout pleadings or further pleadings, as the case may be.
(2) If, on the hearing of an application under this rule, the Court issatisfied that the issues in dispute between the parties can be defined withoutpleadings or further pleadings, or that for any other reason the action canproperly 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 toprepare a statement of the issues in dispute or, if the parties are unable toagree such a statement, may settle the statement itself.
(3) Where the Court makes an order under paragraph (2) or where it dismissesan application for such an order, it may, give such directions as to the furtherconduct of the action as may be appropriate, and Order 25, rules 2 to 7 shall,with the omission of so much of rule 7(1) as requires parties to serve a noticespecifying the orders and directions which they desire and with any othernecessary modifications, apply as if the application under this rule were asummons for directions.
(4) This rule applies to every action begun by writ other than one whichincludes —
(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.
Saving for defence under Merchant Shipping Act. (0.18, r.22).
22. Nothing in Order 70, rules 35 to 38, shall be taken as limitingthe right of any shipowner or other person to rely by way of defence on anyprovision of the Merchant Shipping Act (Chapter 145) which limits the amount ofthe liability in connection with a ship or other property.
ORDER 19
DEFAULT OF PLEADINGS
Default in service of statement of claim. (0.19, r.1).
1. Where the plaintiff is required by these Rules to serve a statementof 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 ofthe 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 suchterms as it thinks just.
Default of defence: Claim for liquidated demand. (0.19, r.2).
2. (1) Where the plaintiff’s claim against a defendant is for aliquidated demand only, then, if that defendant fails to serve a defence on theplaintiff, the plaintiff may, after the expiration of the period fixed by orunder these Rules for service of the defence, enter final judgment against thatdefendant for a sum not exceeding that claimed by the writ in respect of thedemand 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 itapplies for the purposes of that rule.
Default of defence: Claim for unliquidated damages. (0.19, r.3).
3. Where the plaintiff's claim against a defendant is for unliquidateddamages 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 theseRules for service of the defence, enter interlocutory judgment against thatdefendant for damages to be assessed and costs, and proceed with the actionagainst the other defendants, if any.
Default of defence: Claim in detinue. (0.19, r.4).
4. Where the plaintiff’s claim against a defendant relates tothe detention of movable property only, then, if that defendant fails to serve adefence on the plaintiff, the plaintiff may, after the expiration of the periodfixed by or under these Rules for service of the defence enter either—
(a) interlocutory judgment against that defendant for the delivery of the property or its value to be assessed and costs; or
(b) interlocutory judgment for the value of the property to beassessed and costs,
and proceed with the action against the other defendants, if any.
Default of defence: Claim for possession of immovable property. (0.19,r.5).
5. (1) Where the plaintiff’s claim against a defendant is forpossession of immovable property only, then, if that defendant fails to serve adefence on the plaintiff, the plaintiff may, after the expiration of the periodfixed by or under these Rules for service of the defence, and on producing acertificate by his solicitor, or (if he sues in person) an affidavit, statingthat he is not claiming any relief in the action of the nature specified inOrder 79, rule 1, enter judgment for possession of the immovable property as against thatdefendant and for costs, and proceed with the action against the otherdefendants, if any.
[S 31/00]
(2) Where there is more than one defendant, judgment entered under this ruleshall not be enforced against any defendant unless and until judgment forpossession of the immovable property has been entered against all thedefendants.
Default of defence: Mixed claim. (0.19, r.6).
6. Where the plaintiff makes against a defendant two or more of theclaims mentioned in rules 2 to 5, and no other claim, then, if the defendantfails to serve a defence on the plaintiff, the plaintiff may, after theexpiration of the period fixed by or under these Rules for service of thedefence, enter against that defendant such judgment in respect of any such claimas he would be entitled to enter under those rules if that were the only claimmade, and proceed with the action against the other defendants, if any.
Default of defence: Other claims. (0.19, 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, ifthe defendant or all the defendants (where there is more than one) fails or failto serve a defence on the plaintiff, the plaintiff may, after the expiration ofthe period fixed by or under these Rules for service of the defence, apply tothe Court for judgment, and on the hearing of the application the Court shallgive such judgment as the plaintiff appears entitled to on his statement ofclaim.
(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 asmentioned in that paragraph, the plaintiff may —
(a) if his claim against the defendant in default is severable fromhis claim against the other defendants, apply under that paragraph for judgmentagainst that defendant, and proceed with the action against the otherdefendants; or
(b) set down the action on motion for judgment against thedefendant in default at the time when the action is set down for trial, or isset 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 counter-claim. (0.19, r.8).
8. A defendant who counter-claims against a plaintiff shall be treatedfor the purposes of rules 2 to 7 as if he were a plaintiff who had made againsta defendant the claim made in the counter-claim and, accordingly, where theplaintiff or any other party against whom the counter-claim is made fails toserve a defence to counter-claim, those rules shall apply as if thecounter-claim were a statement of claim, the defence to counter-claim a defenceand the parties making the counter-claim and against whom it is made wereplaintiffs and defendants respectively, and as if references to the period fixedby or under these Rules for service of the defence were references to the periodso fixed for service of the defence to counter- claim.
Setting aside judgment. (0.19, r.9).
9. The Court may, on such terms as it thinks just, set aside or varyany judgment entered in pursuance of this Order.
ORDER 20
AMENDMENT
Amendment of writ without leave. (0.20, r.1).
1. (1) Subject to paragraph (3), the plaintiff may, without the leaveof the Court, amend the writ once at any time before the pleadings in the actionbegun 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 , theamended 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 actionor 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 ofclaim (if any) indorsed on the writ,
unless the amendment is made before service of the writ on any party to theaction.
Amendment of appearance. (0.20, r.2).
2. A defendant may not amend his memorandum of appearance without theleave of the Court.
Amendment of pleadings without leave. (0.20, r.3).
3. (1) A party may, without the leave of the Court, amend anypleading of his once at any time before the pleadings are deemed to be closedand, where he does so, he must serve the amended pleading on the oppositeparty.
(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;
(b) the period for service of his defence or amended defence, asthe case may be, shall be either the period fixed by or under these Rules forservice of his defence or a period of 14 days after the amended statement ofclaim 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 thatdefendant, may amend his reply; and
(b) the period for service of his reply or amended reply, as thecase 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 includereferences to a counterclaim and a defence to counter-claim respectively.
(5) Where an amended counter-claim is served by a defendant on a party(other than the plaintiff) against whom the counter-claim is made, paragraph (2)shall apply as if the counter-claim were a statement of claim and as if theparty by whom the counter-claim is made were the plaintiff and the party againstwhom it is made a defendant.
(6) Where a party has pleaded to a pleading which is subsequently amendedand served on him under paragraph (1), then, if that party does not amend hispleading under the foregoing provisions of this rule, he shall be taken to relyon it in answer to the amended pleading, and Order 18, rule 14(2), shall haveeffect in such a case as if the amended pleading had been served at the timewhen that pleading, before its amendment under paragraph (1), was served.
Application for disallowance of amendment made without leave. (0.20,r.4).
4. (1) Within 14 days after the service on a party of a writ amendedunder rule 1(1) or of a pleading amended under rule 3(1) that party may apply tothe Court to disallow the amendment.
(2) Where the Court hearing an application under this rule is satisfied thatif an application for leave to make the amendment in question had been madeunder rule 5 at the date when the amendment was made under rule 1(1) orrule 3(1) leave to make the amendment or part of the amendment would havebeen 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 suchterms as to costs or otherwise as the Court thinks just.
Amendment of writ or pleading with leave. (0.20, r.5).
5. (1) Subject to Order 15, rules 6, 7 and 8 and the followingprovisions of this rule, the Court may at any stage of the proceedings allow theplaintiff to amend his writ, or any party to amend his pleading, on such termsas to costs or otherwise as may be just and in such manner (if any) as it maydirect.
(2) Where an application to the Court for leave to make the amendmentmentioned in paragraph (3), (4) or (5) is made after any relevant period oflimitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned inthat paragraph if it thinks it just to do so.
(3) An amendment to correct the name of a party may be allowed underparagraph (2) notwithstanding that it is alleged that the effect of the amendment willbe to substitute a new party if the Court is satisfied that the mistake soughtto be corrected was a genuine mistake and was not misleading or such as to causeany reasonable doubt as to the identity of the person intending to sue or, asthe case may be, intended to be sued.
(4) An amendment to alter the capacity in which a party sues (whether asplaintiff or as defendant by counterclaim) may be allowed under paragraph (2) ifthe capacity in which, if the amendment is made, the party will sue is one inwhich at the date of issue of the writ or the making of the counterclaim, as thecase may be, he might have sued.
(5) An amendment may be allowed under paragraph (2) notwithstanding that theeffect of the amendment will be to add or substitute a new cause of action ifthe new cause of action arises out of the same facts or substantially the samefacts as a cause of action in respect of which relief has already been claimedin the action by the party applying for leave to make the statement.
Amendment of other originating process. (0.20, r.6).
6. Rule 5 shall have effect in relation to an originating summons, apetition and an originating notice of motion as it has effect in relation to awrit.
Amendment of certain other documents. (0.20, r.7).
7. (1) For the purpose of determining the real question incontroversy between the parties to any proceedings, or of correcting any defector error in any proceedings, the Court may at any stage of the proceedings andeither of its own motion or on the application of any party to the proceedings order any document in the proceedings to be amendedon such terms as to costs or otherwise as may be just and in such manner (ifany) as it may direct.
(2) This rule shall not have effect in relation to a judgment or order.
Failure to amend after order. (0.20, r.8).
8. Where the Court makes an order under this Order giving any partyleave to amend a writ, pleading or other document, then, if that party does notamend the document in accordance with the order before the expiration of theperiod 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 haveeffect, without prejudice, however, to the power of the Court to extend theperiod.
Mode of amendment of writ etc. (0.20, r.9).
9. (1) Where the amendments authorised under any rule of this Orderto be made in a writ, pleading or other document are so numerous or of suchnature or length that to make written alterations of the document so as to giveeffect to them would make it difficult or inconvenient to read, a freshdocument, amended as so authorised, must be prepared and, in the case of a writor originating summons, reissued, but, except as aforesaid and subject to anydirection given under rule 5 or 8, the amendments so authorised may be effectedby making in writing the necessary alterations of the document and, in the caseof a writ or originating summons, causing it to be re-sealed and filing a copythereof.
(2) A writ, pleading or other document which has been amended under thisOrder must be indorsed with a statement that it has been amended, specifying thedate on which it was amended and by whom the order (if any) authorising theamendment was made and the date thereof, or, if no such order was made, thenumber of the rule of this Order in pursuance of which the amendment wasmade.
Amendment of judgment and orders. (0.20, r.10).
10. Clerical mistakes in judgments or orders, or errors arisingtherein from any accidental slip or omission, may at any time be corrected bythe Court by summons without an appeal.
Amended by agreement. (0.20, r.11). [S 77/00]
11. (1) Notwithstanding the foregoing provisions of this Order, anypleading in any cause or matter may, by written agreement between the parties,be amended at any stage of the proceedings.
(2) This rule shall not have effect in relation to an amendment to acounterclaim which consists of the addition, omission or substitution of aparty.
ORDER 21
WITHDRAWAL AND DISCONTINUANCE
Withdrawal of appearance. (0.21, r.1).
1. A party who has entered an appearance in an action may withdraw theappearance at any time with the leave of the Court.
Discontinuance of action etc. without leave. (0.21, r.2).
2. (1) The plaintiff in an action begun by writ may, without theleave of the Court, discontinue the action, or withdraw any particular claimmade by him therein, as against any or all of the defendants at any time notlater than 14 days after service of the defence on him or, if there are two ormore defendants, of the defence last served, by serving a notice in Form 36 tothat effect on the defendant concerned.
(2) A defendant may, without the leave of the Court —
(a) withdraw his defence or any part of it at any time;
(b) discontinue a counter-claim, or withdraw any particular claimmade by him therein, as against any or all of the parties against whom it ismade, at any time not later than 14 days after service on him of a defence tocounter-claim, or if the counter-claim is made against two or more parties, ofthe defence to counter-claim last served,
by serving a notice in Form 36 to that effect on the plaintiff or other partyconcerned.
(3) Where there are two or more defendants to an action not all of whomserve a defence on the plaintiff, and the period fixed by or under these Rulesfor service by any of those defendants of his defence expires after the latestdate on which any other defendant serves his defence, paragraph (1) shall haveeffect as if the reference therein to the service of the defence last servedwere a reference to the expiration of that period.
This paragraph shall apply in relation to a counterclaim as it applies inrelation to an action with the substitution for references to a defence, to theplaintiff and to paragraph (1), of references to a defence to counter-claim, to the defendant and to paragraph (2) respectively.
(4) If all the parties to an action consent, the action may be withdrawnwithout the leave of the Court at any time before trial by producing to theRegistrar a written consent to the action being withdrawn signed by all theparties.
Discontinuance of action etc. with leave. (0.21, r.3).
3. (1) Except as provided by rule 2, a party may not discontinue anaction (whether begun by writ or otherwise) or counter-claim, or withdraw anyparticular claim made by him therein, without the leave of the Court, and theCourt hearing an application for the grant of such leave may order the action orcounter-claim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties againstwhom it is brought or made on such terms as to costs, the bringing of asubsequent action or otherwise as it thinks just.
(2) An application for the grant of leave under this rule may be made bysummons.
Effect of discontinuance. (0.21, r.4).
4. Subject to any terms imposed by the Court in granting leave underrule 3, the fact that a party has discontinued an action or counter-claim orwithdrawn a particular claim made by him therein shall not be a defence to asubsequent action for the same, or substantially the same, cause of action.
Stay of subsequent action until costs paid. (0.21, r.5).
5. (1) Where a party has discontinued an action or counter-claim orwithdrawn any particular claim made by him therein and he is liable to pay anyother party's costs of the action or counter-claim or the costs occasioned toany 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, causeof action, the Court may order the proceedings in that action to be stayed untilthose costs are paid.
(2) An application for an order under this rule may be made by summons or bynotice under Order 25, rule 7.
Withdrawal of summons. (0.21, r.6).
6. A party who has taken out a summons in a cause or matter may notwithdraw it without the leave of the Court.
ORDER 22
PAYMENT INTO AND OUT OF COURT
Payment into Court. (0.22, r.1).
1. (1) In any action for a debt or damages any defendant may at anytime after he has entered an appearance in the action pay into Court a sum ofmoney in satisfaction of the cause of action in respect of which the plaintiffclaims or, where two or more causes of action are joined in the action, a sum orsums 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 anysuch payment already made, the defendant must give notice thereof in Form 37 tothe plaintiff and every other defendant (if any); and within 3 days afterreceiving the notice the plaintiff must send the defendant a writtenacknowledgement of its receipt.
(3) A defendant may, without leave, give notice of an increase in a paymentmade 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 ofthe 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 ispaid into Court under this rule in respect of all, or some only of, those causesof action, the notice of payment —
(a) must state that the money is paid in respect of all thosecauses of action or, as the case may be, must specify the cause or causes ofaction 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 inrespect 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 inrespect of two or more causes of action, then, if it appears to the Court thatthe 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 sumpaid in respect of each cause of action.
Payment in by defendant who has counter-claim. (0.22, r.2).
2. Where a defendant, who makes by counter-claim a claim against theplaintiff for a debt or damages, pays a sum of money into Court under rule 1,the notice of payment must state, if it be the case, that in making the paymentthe 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 thecounter-claim, all those causes of action or, if not all, which of them.
Acceptance of money paid into Court. (0.22, r.3).
3. (1) Where money is paid into Court under rule 1, then subject toparagraph (2) within 14 days after receipt of the notice of payment or, wheremore.than one payment has been made or the notice has been amended, within 14days 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 orall the causes of action in respect of which he claims, accept the money insatisfaction of that cause of action or those causes of action, as the case maybe; or
(b) where the money was paid in respect of some only of the causesof action in respect of which he claims, accept in satisfaction of any suchcause or causes of action the sum specified in respect of that cause or thosecauses of action in the notice of payment,
by giving notice in Form 38 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 Courtunder 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 thefurther payment, as the case may be, but, in any case, before the Judge beginsto deliver judgment.
(3) Rule 1(5) shall not apply in relation to money paid into Court in anaction after the trial or hearing of the action has begun.
(4) On the plaintiff accepting any money paid into Court all furtherproceedings in the action or in respect of the specified cause or causes ofaction, as the case may be, to which the acceptance relates, both against thedefendant making the payment and against any other defendant sued jointly withor in the alternative to him shall be stayed.
(5) Where money is paid into Court by a defendant who made a counterclaimand the notice of payment stated, in relation to any sum so paid, that in makingthe payment the defendant had taken into account and satisfied the cause orcauses or action, or the specified cause or causes of action in respect of whichhe claimed, then, on the plaintiff accepting that sum, all further proceedingson the counterclaim or in respect of the specified cause or causes of action, asthe case may be, against the plaintiff shall be stayed.
(6) A plaintiff who has accepted any sum paid into Court shall, subject torules 4 and
10 and Order 73, rule 12, be entitled to receive payment of that sum insatisfaction of the cause or causes of action to which the acceptancerelates.
[S 31/00]
Order for payment out of money accepted required in certain cases. (0.22,r.4).
4. (1) Where a plaintiff accepts any sum paid into Court and that sumwas paid into Court —
(a) by some but not all of the defendants sued jointly or in thealternative by him; or
(b) with a defence of tender before action,
the money in Court shall not be paid out except under paragraph (2) or inpursuance of an order of the Court, and the order shall deal with the wholecosts of the action or of the cause of action to which the payment relates, asthe case may be.
(2) Where an order of the Court is required under paragraph (1) by reasononly of paragraph (1) (a) , then, if, either before or after accepting themoney paid into Court by some only of the defendants sued jointly or in thealternative by him, the plaintiff discontinues the action against all otherdefendants and those defendants consent in writing to the payment out of thatsum, it may be paid out without an order of the Court.
(3) Where after the trial or hearing of an action has begun a plaintiffaccepts any money paid into Court and all further proceedings in the action orin respect of the specified cause or causes of action, as the case may be, towhich the acceptance relates are stayed by virtue of rule 3(4) then,notwithstanding anything in paragraph (2), the money shall not be paid outexcept in pursuance of an order of the Court, and the order shall deal with thewhole costs of the action.
Money remaining in Court. (0.22, r.5).
5. If any money paid into Court in an action is not accepted inaccordance with rule 3, the money remaining in Court shall not be paid outexcept in pursuance of an order of the Court which may be made at any timebefore, at or after the trial or hearing of the action; and where such an orderis made before the trial or hearing the money shall not be paid out except insatisfaction of the cause or causes of action in respect of which it was paidin.
Counter-claim. (0.22. r.6).
6. A plaintiff against whom a counterclaim is made and any otherdefendant to the counterclaim may pay money into Court in accordance with rulel, and that rule and rules 3
(except paragraph (5)), 4 and 5 shall apply accordingly with the necessarymodifications.
Non-disclosure of payment into Court. (0.22, r.7).
7. Except in an action to which a defence of tender before action ispleaded, and except in an action all further proceedings in which are stayed byvirtue 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 thisOrder shall not be pleaded and no communication of that fact shall be made tothe Court at the trial or hearing of the action or counter-claim or of anyquestion or issue to the debt or damages until all questions of liability and ofthe amount of debt or damages have been decided.
Money paid into Court under Order. (0.22, r.8).
8. (1) Subject to paragraph (2), money paid into Court under an orderof the Court or a certificate of the Registrar shall not be paid out except inpursuance of an order of the Court.
(2) Unless the Court otherwise orders, a party who has paid money into Courtin pursuance of an order made under Order 14 —
(a) may by notice to the other party appropriate the whole or anypart of the money and any additional payment, if necessary, to any particularclaim made in the writ or counter-claim, as the case may be, and specified inthe notice; or
(b) if he pleads a tender, may by his pleading appropriate thewhole or any part of the money as payment into Court of the money alleged tohave been tendered,
and money appropriated in accordance with this rule shall be deemed to bemoney paid into Court in accordance with rule 1 or money paid into Court with aplea of tender, as the case may be, and this Order shall apply accordingly.
Payment out of money paid into Court under Exchange Control Act. (0.22,r.9).
9. (1) Where money has been paid into Court in any cause or matterpursuant to the Exchange Control Act, or an order of the Court made thereunder,any party to the cause or matter may apply for payment out of Court of thatmoney.
(2) An application for an order under this rule must be made by summonswhich must be served on all parties interested.
(3) If any person in whose favour an order for payment under this rule issought is resident outside the scheduled territories or will receive payment byorder or on behalf of a person so resident, that fact must be stated in thesummons.
(4) If the permission of the Controller authorising the proposed payment hasbeen given unconditionally or on conditions which have been complied with, thatfact must be stated in the summons and the permission must be attached to thesummons.
Person to whom payment to be made. (0.22, r.10).
10. (1) Payment shall be made to the party entitled or, on hiswritten authority to his solicitor or, if the Court so orders, to his solicitorwithout such authority.
(2) This rule applies whether the money in Court has been paid into Courtunder the order of the Court or a certificate of the Registrar.
Payment out: Small Intestate Estates. (0.22, r.11).
11. Where a person entitled to a fund in Court, or a share of suchfund, dies intestate and the Court is satisfied that no grant of administrationof his estate has been made and that the assets of his estate do not exceed$50,000 in value, including the value of the fund or share it may order that thefund or share shall be paid, transferred or delivered to the person who, being awidower, widow, child, father, mother, brother or sister of the deceased, wouldhave the prior right to a grant of administration of the estate of thedeceased.
[S 8/99]
Payment of hospital expenses. (0.22, r.12).
12. (1) This rule applies in relation to an action or counter-claimfor bodily injury arising out of the use of a motor vehicle on a road or anyplace to which the public have a right of access in which the claim for damagesincludes a sum for hospital expense.
(2) Where the party against whom the claim is made, or an authorised insurerpays the amount for which that party or insurer, as the case may be, is or maybe liable in respect of the treatment afforded by a hospital to the person inrespect of whom the claim is made,
the party against whom the claim is made must, within 7 days after payment ismade, give notice of the payment to all the other parties to the action.
Written offers without prejudice save as to costs. (0.22, r.13).
13. (1) A party to proceedings may at any time make a written offerto any other party to those proceedings which is expressed to be “withoutprejudice save as to costs” and which relates to any issue in theproceedings.
(2) Where an offer is made under paragraph (1), the fact that such an offerhas been made shall not be communicated to the court until the question of costsfails to be decided and the court shall, in accordance with Order 59, rule 5,take into account any offer which has been brought to its attention:
Provided that the court shall not take such offer into account if, at thetime it is made, the party making it could have protected his position as tocosts by means of a payment into court under this Order.
ORDER 22A
OFFER TO SETTLE
Offer to settle. (0.22A, r.1). [S 8/99]
1. A party to any proceedings may serve on any other party an offer tosettle any one or more of the claims in the proceedings on the terms specifiedin the offer to settle.
Timing. (0.22A, r.2). [S 8/99]
2. An offer to settle may be made at any time before the Courtdisposes of the matter in respect of which it is made.
Acceptance. (0.22A, r.3). [S 8/99]
3. (1) An offer to settle shall be open for acceptance for a periodof not less than 14 days after it is served. If an offer to settle is made lessthan 14 days before the hearing of the matter, it shall remain open for a periodof not less than 14 days unless in the meanwhile the matter is disposed of.
(2) Subject to paragraph (1), an offer to settle which is expressed to belimited as to the time within which it is open for acceptance shall not bewithdrawn within that time without the leave of the Court. An offer to settle which does not specify a time for acceptance may be withdrawn atany time after the expiry of 14 days from the date of service of the offer onthe other party provided that at least one day’s prior notice of theintention to withdraw the offer is given.
(3) Where an offer to settle specifies a time within which it may beaccepted and it is not accepted or withdrawn within that time, it shall bedeemed to have been withdrawn when the time expires.
(4) Where an offer to settle does not specify a time, for acceptance, it maybe accepted at any time before the Court disposes of the matter in respect ofwhich it is made.
Without prejudice. (O.22A. r.4). [S 8/99]
4. An offer to settle shall be deemed to be an offer of compromisemade without prejudice save as to costs.
Non-disclosure. (0.22A, r.5). [S 8/99]
5. (1) An offer to settle shall not be filed and no statement of thefact that such an offer has been made shall be contained in any pleading oraffidavit.
(2) Where an offer to settle is not accepted, no communication respectingthe offer shall be made to the Court at the hearing of the proceeding until allquestions of liability and the relief to be granted, other than costs, have beendetermined.
Acceptance. (O.22A, r.6). [S 8/99]
6. (1) An offer to settle shall be accepted by serving an acceptanceof offer on the party who made the offer.
(2) Where a party to whom an offer to settle is made rejects the offer orresponds with a counter-offer that is not accepted, the party may thereafteraccept the original offer to settle, unless it has been withdrawn or the Courthas disposed of the matter in respect of which it was made.
(3) Where an offer is accepted, the Court may incorporate any of its termsinto a judgment.
Disability. (0.22A, r.7). [S 8/99]
7. A party under disability may make, withdraw and accept an offer tosettle, but no acceptance of an offer made by him and no acceptance by him of anoffer made by another party is binding on him until the settlement has beenapproved.
Compliance. (O.22A, r.8). [S 8/99]
8. (1) Where a party to an accepted offer to settle fails to complywith any of the terms of the accepted offer, the other party may —
(a) make an application to a Judge for judgment in the terms of theaccepted offer, and the Judge may grant judgment accordingly; or
(b) continue the proceeding as if there had been no accepted offerto settle.
(2) Where the offer to settle involves the payment of money by instalments,the accepted offer to settle shall unless the parties otherwise provide bedeemed to include a term that all instalments outstanding shall be immediatelypayable upon the failure to comply with the payment of any instalment.
Costs. (0.22A, r.9). [S 8/99]
9. (1) Where an offer to settle made by a plaintiff —
(a) is not withdrawn and has not expired before the disposal of theclaim in respect of which the offer to settle is made; and
(b) is not accepted by the defendant, and the plaintiff obtains ajudgment not less favourable than the terms of the offer to settle,
the plaintiff is entitled to costs on the standard basis to the date an offerto settle was served, unless the Court orders otherwise.
[S 77/00]
(2) Where an accepted offer to settle does not provide for costs, theplaintiff is entitled —
(a) where the offer was made by him, to his costs assessed to thedate that the notice of acceptance was served; or
(b) where the offer was made by the defendant, to his costsassessed to the date the plaintiff was served with the offer.
(3) Where an offer to settle made by a defendant —
(a) is not withdrawn and has not expired before the disposal of theclaim in respect of which the offer to settle is made; and
(b) is not accepted by the plaintiff, and the plaintiff obtainsjudgment not more favourable than the terms of the offer to settle,
the plaintiff is entitled to costs on the standard basis to the date theoffer was served and the defendant is entitled to costs on the indemnity basisfrom that date, unless the Court orders otherwise.
(4) (a) Any interest awarded in respect of the period beforeservice of the offer to settle is to be considered by the Court in determiningwhether the plaintiff’s judgment is more favourable than the terms of theoffer to settle.
(b) Any interest awarded in respect of the period after service ofthe offer to settle is not to be considered by the Court in determining whetherthe plaintiff’s judgment is more favourable than the terms of the offer tosettle.
Joint and several liability. (0.22A, r.10). [S 8/99]
10. Where there are 2 or more defendants, the plaintiff may offer tosettle with any defendant and any defendant may offer to settle with theplaintiff, but where the defendants are alleged to be jointly or jointly andseverally liable to the plaintiff in respect of a claim and rights of contribution or indemnity may exist between the defendants, the costconsequences prescribed by rule 9 do not apply to an offer to settle unless—
(a) in the case of an offer made by the plaintiff, the offer ismade to all the defendants, and is an offer to settle the claim against all thedefendants; or
(b) in the case of an offer made to the plaintiff —
(i) the offer is an offer to settle the plaintiff’s claim againstall the defendants and to pay the costs of any defendant who does not join inmaking the offer; or
(ii) the offer is made by all the defendants and is an offer to settle theclaim against all the defendants, and, by the terms of the offer, they are madejointly and severally liable to the plaintiff for the whole of the offer.
Offer to contribute. (0.22A, r.11). [S 8/99]
11. (1) Where 2 or more defendants are alleged to be jointly orjointly and severally liable to the plaintiff in respect of a claim, anydefendant may make to any other defendant an offer to contribute towards asettlement of the claim.
(2) The Court may take into account an offer to contribute in determiningwhether another defendant should be ordered —
(a) to pay the costs of the defendant who made the offer; or
(b) to indemnify the defendant who made the offer for any costs heis liable to pay to the plaintiff,
or to do both.
(3) Rules 2 to 12 shall apply to an offer to contribute as if it were anoffer to settle.
Discretion of Court. (0.22A, r.12). [S 8/99]
12. Without prejudice to rules 9 and 10, the Court, in exercising itsdiscretion with respect to costs, may take into account any offer to settle, thedate the offer was made, the terms of the offer and the extent to which theplaintiff’s judgment is more favourable than the terms of the offer tosettle.
Counterclaims and third party claims. (0.22A, r.13). [S8/99]
13. Rules 1 to 12 shall apply, with the necessary modifications, tocounter-claims and third party claims.
ORDER 23
SECURITY FOR COSTS
Security for costs of action etc. (0.23, r.1).
1. (1) Where, on the application of a defendant to an action or otherproceeding in the High Court, it appears to the Court —
(a) that the plaintiff is ordinarily resident out of thejurisdiction; or
(b) that the plaintiff (not being a plaintiff who is suing in arepresentative capacity) is a nominal plaintiff who is suing for the benefit ofsome other person and that there is reason to believe that he will be unable topay the costs of the defendant if ordered to do so; or
(c) subject to paragraph (2), that the plaintiff’s address isnot stated in the writ or other originating process or is incorrectly statedtherein; or
(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of thelitigation,
then, if, having regard to all the circumstances of the case, the Courtthinks it just to do so, it may order the plaintiff to give such security forthe defendant’s costs of the action or other proceeding as it thinksjust.
(2) The Court shall not require a plaintiff to give security by reason only of paragraph (1) (c) if he satisfies the Court that thefailure to state his address or the mis- statement thereof was made innocentlyand without intention to deceive.
(3) The references in the foregoing paragraphs to a plaintiff and adefendant shall be construed as references to the person (howsoever described onthe record) who is in the position of plaintiff or defendant, as the casemay be, in the proceeding in question, including a proceeding on acounter-claim.
Manner of giving security. (0.23, r.2).
2. Where an order is made requiring any party to give security forcosts, the security shall be given in such manner, at such time, and on suchterms (if any), as the Court may direct.
Saving for written law. (0.23, r.3).
3. This Order is without prejudice to the provisions of any writtenlaw which empowers the Court to require security given for the costs of anyproceedings.
ORDER 24
DISCOVERY AND INSPECTION OF DOCUMENTS
Mutual discovery of documents. (0.24, r.1).
1. (1) After the close of pleadings in an action begun by writ thereshall, subject to and in accordance with the provisions of this Order, bediscovery by the parties to the action of the documents which are or have beenin their possession, custody or power relating to matters in question in theaction.
(2) Nothing in this Order shall be taken as preventing the partiesto an action agreeing to dispense with or limit the discovery of documentswhich they would otherwise be required to make to each other.
Discovery by parties without Order. (0.24, r.2).
2. (1) Subject to the provisions of this rule and of rule 4, theparties to an action between whom pleadings are closed must make discovery byexchanging lists of documents and, accordingly, each party must, within 14 daysafter the pleading in the action are deemed to be closed as between him and anyother party, make and serve on that other party a list of the documents whichare or have been in his possession, custody or power relating to any matter inquestion between them in the action.
Without prejudice to any directions given by the Court under Order 16, rule4, this paragraph shall not apply in third party proceedings, includingproceedings under that Order involving fourth or subsequent parties.
(2) Unless the Court otherwise orders, a defendant to an action arising outof an accident on land due to a collision or apprehended collision involving avehicle shall not make discovery of any documents to the plaintiff underparagraph (1).
(3) Paragraph (1) shall not be taken as requiring a defendant to an actionfor the recovery of any penalty recoverable by virtue of any written law to makediscovery of any documents or as requiring a defendant to an action to enforce aforfeiture to make discovery of any documents relating to the issue offorfeiture.
(4) Paragraphs (2) and (3) shall apply in relation to a counterclaim as theyapply in relation to an action but with the substitution, for the reference inparagraph (2) to the plaintiff, of a reference to the party making thecounter-claim.
(5) On the application of any party required by this rule to make discoveryof documents, the Court may —
(a) order that the parties to the action or any of them shall makediscovery under paragraph (1) of such documents or classes of documents only, oras 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 notnecessary, or not necessary at the stage of the action, order that there shallbe no discovery of documents by any or all of the parties either at all or atthat stage,
and the Court shall make such an order if and so far as it is of opinion thatdiscovery is not necessary either for disposing fairly of the action or forsaving costs.
(6) An application for an order under paragraph (5) must be by summons, andthe summons must be taken out before the expiration of the period within whichby virtue of this rule discovery of documents in the action is required to bemade.
(7) Any party to whom discovery of documents is required to be made underthis rule may, at any time before the summons for directions in the action istaken out, serve on the party required to make such discovery a notice in Form39 requiring him to make an affidavit verifying the list he is required to makeunder paragraph (1) and the party on whom such a notice is served must, within14 days after service of the notice, make and file an affidavit in compliancewith the notice and serve a copy of the affidavit on the party by whom thenotice was served.
Order for discovery. (0.24, 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 ofthe documents which are or have been in his possession, custody or powerrelating to any matter in question in the cause or matter, and may at the sametime or subsequently also order him to make and file an affidavit verifying sucha 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 documentsfails to comply with any provisions of that rule, the Court, on the applicationof any party to whom the discovery was required to be made, may make an orderagainst the first mentioned party under paragraph (1) of this rule or, as thecase may be, may order him to make and file an affidavit verifying the list ofdocuments he is required to make under rule 2 and to serve a copy thereof on theapplicant.
(3) An order under this rule may be limited to such documents or clases ofdocument only, or to such only of the matters in question in the cause ormatter, as may be specified in the order.
Order for determination of issue etc. before discovery. (0.24,r.4).
4. (1) Where on an application for an order under rule 2 or 3 itappears to the Court that any issue or question in the cause or matter should bedetermined before any discovery of documents is made by the parties, the Courtmay order that that issue or question be determined first.
(2) Where in an action begun by writ an order is made under this rule forthe determination of an issue or question, Order 25, rules 2 to 7 shall, withthe omission of so much of rule 7(1) as requires parties to serve a noticespecifying the orders and directions which they desire and with any othernecessary modifications, apply as if the application on which the order was madewere a summons for directions.
Form of list and affidavit. (0.24, r.5).
5. (1) A list of documents made in compliance with rule 2 or with anorder under rule 3 must be in Form 40, and must enumerate the documents in aconvenient order and as shortly as possible but describing each of them or, inthe case of bundles of documents of the same nature, each bundle, sufficientlyto enable it to be identified.
(2) If it is desired to claim that any documents are privileged fromproduction, the claim must be made in the list of documents with a sufficientstatement of the grounds of the privilege.
(3) An affidavit made as aforesaid verifying a list of documents must be inForm 41.
Defendant entitled to copy of co-defendant’s list. (0.24,r.6).
6. (1) A defendant who has pleaded in an action shall be entitled tohave a copy of any list of documents served under any of the foregoing rules ofthis Order on the plaintiff by any other defendant to the action; and aplaintiff against whom a counter-claim is made in an action begun by writ shallbe entitled to have a copy of any list of documents served under any of thoserules on the party making the counter-claim by any other defendant to thecounter-claim.
(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 theparty entitled to it.
(3) Where in an action begun by originating summons the Court makes an orderunder rule 3 requiring a defendant to the action to serve a list of documents onthe plaintiff, it may also order him to supply any other defendant to the actionwith a copy of that list.
(4) In this rule “list of documents” includes an affidavitveriying a list of documents.
Order for discovery of particular documents. (0.24, r.7).
7. (1) Subject to rule 8, the Court may at any time, on theapplication of any party to a cause or matter, make an order requiring any otherparty to make an affidavit stating whether any document specified or describedin the application or any class of document so specified or described is, or hasat any time been, in his possession, custody or power, and if not then in hispossession, custody or power when he parted with it and what has become ofit.
(2) An order may be made against a party under this rule notwithstandingthat he may already have made or been required to make a list of documents oraffidavit under rule 2 or 3.
(3) An application for an order under this rule must be supported by anaffidavit stating the belief of the deponent that the party from whom discoveryis sought under this rule has, or at some time had, in his possession, custodyor power the document, or class of document, specified or described in theapplication and that it relates to one or more of the matters in question in thecause or matter.
Disclosure by non-parties. (0.24, r.7A). [S 28/96]
7A. (1) On the application of any person, the Court shall have powerto make an order providing for any one or more of the following matters—
(a) the inspection, photographing, preservation, custody and detention of property which appears to the Court to be property which maybecome the subject- matter of subsequent proceedings in the Court, or as towhich any question may arise in any such proceedings; and
(b) the taking of samples of any such property as is mentioned inparagraph (a)
and the carrying out of any experiment on or with any such property.
(2) On the application of a person who appears to the Court to be likely tobe a party to subsequent proceedings in that Court in which a claim in respectof personal injuries (as defined in section 20(3) of the Emergency (FatalAccidents and Personal Injuries) Order,
1991), or in respect of a person’s death, is likely to be made, theCourt shall have power to order a person who appears to the Court to be likelyto be a party to the proceedings and to be likely to have or to have had in hispossession, custody or power any documents which are relevant to an issuearising or likely to arise out of that claim —
(a) to disclose whether those documents are in his possession, custody or power; and
(b) to produce such of those documents as are in his possession,custody or power to the applicant or, on such conditions as may be specified inthe order —
(i) to the applicant’s solicitor;
(ii) to the applicant’s solicitor and any medical or otherprofessional adviser of the applicant; or
(iii) if the applicant has no solicitor, to any medical or other professionaladviser of the applicant.
Disclosure in cases of personal injury or death. (0.24, r.7B). [S28/96]
7B. (1) This rule applies to any proceedings in the Court in which aclaim is made in respect of personal injuries (as defined in section 20(3) ofthe Emergency (Fatal Accidents and Personal Injuries) Order, 1991) or in respectof a person’s death.
(2) On the application of a party to any proceedings to which this sectionapplies, the Court shall have power to order a person who is not a party to theproceedings and who appears to the Court to be likely to have in his possession, custody or powerany documents which are relevant to an issue arising out of that claim—
(a) to disclose whether those documents are in his possession, custody or power; and
(b) to produce such of those documents as are in his posses-sion,custody or power to the applicant or, on such conditions as may be specified inthe order —
(i) to the applicant’s solicitor;
(ii) to the applicant’s solicitor and any medical or otherprofessional adviser of the applicant; or
(iii) if the applicant has no solicitor, to any medical or other professionaladviser of the applicant.
(3) On the application of a party to any proceedings to which this ruleapplies, the Court shall have power to make an order providing for any one ormore of the following matters —
(a) the inspection photographing, preservation, custody and detention of property which is not the property of, or in the possession of,any party to the proceedings but which is the subject-matter of the proceedingsor as to which any question arises in the proceedings; and
(b) the taking of samples of any such property as is mentioned inparagraph (a)
and the carrying out of any experiment on or with any such property.
(4) The preceding provisions of this rule are without prejudice to theexercise by the Court of any power to make orders which is exercisable apart from thoseprovisions.
Provisions supplementary to rule 7A and 7B. (0.24, r.7C). [S28/96]
7C. The Court shall not make an order under rules 7A or 7B if it considers that compliance with the order, if made, would be likely tobe injurious to the public interest.
Application under rule 7A or 7B. (0.24, r.7D). [S 28/96]
7D. (1) An application for an order under rule 7A for the disclosureof documents before the commencement of proceedings shall be made by originatingsummons and the person against whom the order is sought shall be made defendantto the summons.
(2) An application after the commencement of proceedings for an order underrule 7B for the disclosure of documents by a person who is not a party to theproceedings shall be made by summons, which must be served on that personpersonally and on every party to the proceedings other than the applicant.
(3) A summons under paragraphs (1) or (2) shall be supported by an affidavitwhich must —
(a) in the case of a summons under paragraph (1) state the groundson which it is alleged that the applicant and the person against whom the orderis sought are likely to be parties to sub-sequent proceedings in the High Courtin which a claim in respect of personal injuries or in respect of aperson’s death is likely to be made;
(b) in any case, specify or describe the documents in respect ofwhich the order is sought and show, if practicable by reference to any pleadingserved or intended to be served in the proceedings, that the documents arerelevant to an issue arising or likely to arise out of a claim in respect ofpersonal injuries or in respect of a person’s death made or likely to bemade in the proceedings and that the person against whom the order is sought islikely to have or to have had them in his possession, custody or power.
(4) A copy of the supporting affidavit shall be served with the summons onevery person on whom the summons is required to be served.
(5) An order under rule 7A or 7B for the disclosure of documents may be madeconditional on the applicant’s giving security for the costs of the personagainst whom it is made or on such other terms, if any, as the Court thinksjust, and shall require the person against whom the order is made to makean affidavit stating whether any documents specified or described in theorder are, or at any time have been, in his possession, custody or power and, ifnot then in his possession, custody or power, when he parted with them and whathas become of them.
(6) No person shall be compelled by virtue of such an order to produce any documents which he could not be compelled to produce —
(a) in the case of a summons under paragraph (1), if the sub-sequent proceedings had already been begun; or
(b) in the case of a summons under paragraph (2), if he had beenserved with a writ of subpoena duces tecum to produce documents at thetrial.
(7) For the purposes of rules 10 and 11, an application for an order underrule 7A or
7B shall be treated as a cause or matter between the applicant and the personagainst whom the order is sought.
Discovery to be ordered only if necessary. (0.24, r.8).
8. On the hearing of an application for an order under rule 3 or 7 theCourt, if satisfied that discovery is not necessary, or not necessary at thatstage of the cause or matter, may dismiss or, as the case may be, adjourn theapplication and shall in any case refuse to make such an order if and so far asit is of opinion that discovery is not necessary either for disposing fairly ofthe cause or matter or for saving costs.
Inspection of documents referred to in list. (0.24, 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 theother party to inspect the documents referred to in the list (other than anywhich he objects to produce) and to take copies thereof and, accordingly, he must when he serves the list on the other party alsoserve on him a notice in Form 42 stating a time within 7 days after the servicethereof at which the said documents may be inspected at a place specified in thenotice.
Inspection of documents referred to in pleadings and affidavits. (0.24,r.10).
10. (1) Any party to a cause or matter shall be entitled at any timeto serve a notice in Form 43 on any other party in whose pleadings or affidavitsreference is made to any document requiring him to produce that document for theinspection of the party giving the notice and to permit him to take copiesthereof.
(2) The party on whom a notice is served under paragraph (1) must, within 4days after service of the notice, serve on the party giving the notice a noticein Form 44 stating a time within 7 days after the service thereof at which thedocuments, or such of them as he does not object to produce, may be inspected ata place specified in the notice, and stating which (if any) of the documents heobjects to produce and on what grounds.
Order for production for inspection. (0.24, r.11).
11. (1) If a party who is required by rule 9 to serve such a noticeas 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 ofthe Court, it is unreasonable to offer inspection then or, as the case may be,there,
then, subject to rule 13(1), the Court may, on the application of the party entitled to inspection, make an order in Form 45 for production ofthe documents in question for inspection at such time and place, and in suchmanner, as it thinks fit.
(2) Without prejudice to paragraph (1), but subject to rule 13(1) the Courtmay, on the application of any party to a cause or matter, order any other partyto permit the party applying to inspect any documents in the possession, custodyor power of that other party relating to any matter in question in the cause ormatter.
(3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of whichinspection is sought and stating the belief of the deponent that they are in thepossession, custody or power of the other party and that they relate to a matterin question in the cause or matter.
Copies of documents. (0.24, r.11A). [S 7/99]
11A. (1) Any party who is entitled to inspect any documents under anyprovision of this Order or any order made thereunder may at or before the timewhen inspection takes place serve on the party who is required to produce suchdocuments for inspection a notice (which shall contain an undertaking to pay the reasonable charges) requiring him tosupply a true copy of any such document as is capable of being copied byphotographic or similar process.
(2) The party on whom such a notice is served must within seven days afterreceipt thereof supply the copy requested together with an account of thereasonable charges.
(3) Where a party fails to supply to another party a copy of any documentunder paragraph (2), the Court may, on the application of either party, makesuch order as to the supply of that document as it thinks fit.
Order for production to Court. (0.24, r.12).
12. At any stage of the proceedings in any cause or matter the Courtmay, subject to rule 13(1), order any party to produce to the Court any document in hispossession, custody or power relating to any matter in question in the cause ormatter and the Court may deal with the document when produced in such manner asit thinks fit.
Production to be ordered only if necessary etc. (0.24, r.13).
13. (1) No order for the production of any documents for inspectionor to the Court shall be made under any of the foregoing rules unless the Courtis of opinion that the order is necessary either for disposing fairly of thecause or matter or for saving costs.
(2) Where on an application under this Order for production of any documentfor inspection or to the Court privilege from such production is claimed orobjection is made to such production on any other ground, the Court may inspectthe document for the purpose of deciding whether the claim or objection isvalid.
Production of business books. (0.24, r.14).
14. (1) Where production of any business books for inspection isapplied for under any of the foregoing rules, the Court may, instead of orderingproduction of the original books for inspection, order a copy of any entriestherein to be supplied and verified by an affidavit of some person who hasexamined the copy with the original books.
(2) Any such affidavit shall state whether or not there are in the originalbook any and what erasures, interlineations or alterations.
(3) Notwithstanding that a copy of any entries in any book has been suppliedunder this rule, the Court may order production of the book from which the copywas made.
Use of documents. (0.24, r.14A). [S 7/99]
14A. Any undertaking, whether express or implied, not to use adocument for any purposes other than those of the proceedings in which it isdisclosed shall cease to apply to such document after it has been read to or bythe Court, or referred to, in open Court, unless the Court for special reasonshas otherwise ordered on the application of a party or of the person to whom thedocument belongs.
Document disclosure of which would be injurious to public interest: Saving.
(0.24, r.15).
15. The foregoing provisions of this Order shall be without prejudiceto any rule of law which authorises or requires the withholding of any documenton the ground that the disclosure of it would be injurious to the publicinterest.
Failure to comply with requirement for discovery etc. (0.24,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 produceany documents for the purpose of inspection or any other purpose fails to complywith 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), the Court may make such order as it thinks justincluding, in particular, an order that the action be dismissed, or as the casemay be, an order that the defence be struck out and judgment be enteredaccordingly.
(2) If any party against whom an order for discovery or production ofdocuments 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 solicitor of an order for discovery or production of documents made against that party shall be sufficient serviceto found an application for committal of the party disobeying the order, but theparty may show in answer to the application that he had no notice or knowledgeof the order.
(4) A solicitor on whom such an order made against his client is served andwho fails without reasonable excuse to give notice thereof to his client shallbe liable to committal.
Revocation and variation of Orders. (0.24, r.17).
17. Any order made under this Order (including an order made onappeal) may, on sufficient cause being shown, be revoked or varied by asubsequent order or direction of the Court made or given at or before the trialof the cause or matter in connection with which the original order was made.
ORDER 25
SUMMONS FOR DIRECTIONS
Summons for directions. (0.25, r.1).
1. (1) With a view to providing, in every action to which this ruleapplies, an occasion for the consideration by the Court of the preparations forthe trial of the action, so that —
(a) all matters which must or can be dealt with on interlocutoryapplications and have not already been dealt with may so far as possible bedealt with; and
(b) such directions may be given as to the future course of theaction as appear best adapted to secure the just, expeditious and economicaldisposal thereof,
the plaintiff must, within one month after the pleadings in the action aredeemed to be closed, take out a summons in Form 46 (in these Rules referred toas 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 forjudgment under Order 14, or in which the plaintiff has applied for judgmentunder Order 77, and directions have been given under the relevant Order;
[S 31/00]
(b) actions in which the plaintiff or defendant has applied underOrder 18, rule 22, for trial without pleadings or further pleadings and directions have beengiven under that rule;
(c) actions in which an order has been made under Order 24, rule 4,for the trial of the 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 beenmade under Order 43, rule 1;
(f) actions which have been referred for trial to the Registrar;and
(g) actions for the infringement of a patent.
(3) Where, in the case of any action in which discovery of documents isrequired to be made by any party under Order 24, rule 2, the period of 14 daysreferred to in paragraph (1) of that rule is extended, whether by consent or by order of the Court orboth by consent and by order, paragraph (1) of this rule shall have effect inrelation to that action as if for the reference therein to one month after thepleadings in the action are deemed to be closed there were substituted areference 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 inaccordance with the foregoing provisions of this rule, the defendant or anydefendant 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 dealwith the application as if it were a summons for directions.
(6) In the case of an action which is proceeding only as respects acounter-claim, references in this rule to the plaintiff and defendant shall beconstrued respectively as references to the party making the counter-claim andthe defendant to the counter-claim.
Duty to consider all matters. (0.25, r.2).
2. (1) When the summons for directions first comes to be heard, theCourt shall consider whether —
(a) it is possible to deal then with all the matters which, by thesubsequent rules of this Order, are required to be considered on the hearing ofthe summons for directions; or
(b) it is expedient to adjourn the consideration of all or any ofthose matters until a later stage.
(2) If when the summons for directions first comes to be heard the Courtconsiders that it is possible to deal then with all the said matters, it shalldeal with them forthwith and shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applicationsand have not already been dealt with are also then dealt with.
(3) If, when the summons for directions first comes to be heard, the Courtconsiders that it is expedient to adjourn the consideration of all or any of thematters which, by the subsequent rules of this Order, are required to beconsidered on the hearing of the summons, the Court shall deal forthwith withsuch of those matters as it considers can conveniently be dealt with forthwithand adjourn the consideration of the remaining matters and shallendeavour to secure that all other matters which must or can be dealt with oninterlocutory applications and have not already been dealt with are dealt witheither then or at a resumed hearing of the summons for directions.
(4) If, on the summons for directions, an action is ordered to betransferred to the Subordinate Courts, nothing in this Order shall be construedas requiring the Court to make any further order on the summons.
(5) If, on the summons for directions, the action or any question or issuetherein is ordered to be tried before the Registrar, the Court may, withoutgiving further directions, adjourn the summons so that it can be heard by theRegistrar, and the party required to apply to the Registrar for directions maydo so by notice without taking out a fresh summons.
(6) If the hearing of the summons for directions is adjourned without a daybeing fixed for the resumed hearing thereof, any party may restore it to thelist on 2 days’ notice to the other parties.
Particular matters for consideration. (0.25, r.3).
3. On the hearing of the summons for directions the Court shall inparticular consider, if necessary of its own motion, whether, for the purpose ofsaving costs, any order should be made in the exercise of the powers conferredby any of the following provisions, that is to —
(a) the Evidence Act (Chapter 108), in particular, the sectionswhich enable the Court to order the admission in evidence of statements in documents notwithstanding that the makers of the statementsare not called as witnesses and notwithstanding that the original document isnot produced;
(b) Order 20, rule 5, Order 38, rules 2 to 7, and Order 70, rule24(3).
Admissions and agreements to be made. (0.25, r.4).
4. At the hearing of the summons for directions, the Court shallendeavour to secure that the parties make all admissions and all agreements asto the conduct of the proceedings which ought reasonably to be made by them andmay cause the order on the summons to record any admissions or agreements somade, and (with a view to such special order, if any, as to costs as may be justbeing made at the trial) any refusal to make any admissions or agreement.
Limitation of right of appeal. (0.25, r.5).
5. Nothing in rule 4 shall be construed as requiring the Court toendeavour to secure that the parties shall agree to exclude or limit any rightof appeal, but the order made on the summons for directions may record any suchagreement.
Duty to give all information at hearing. (0.25, 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 theduty of the parties to the action and their solicitors to give all suchinformation and produce all such documents on any hearing of the summons as theCourt may reasonably require for the purposes of enabling it properly to dealwith the summons.
The Court may, if it appears proper so to do in the circumstances, authoriseany such information or documents to be given or produced to the Court withoutbeing disclosed to the other parties but, in the absence of such authority, anyinformation or document given or produced under this paragraph shall be given orproduced to all the parties present or represented on the hearing of the summonsas well as to the Court.
(2) No leave shall be required by virtue of paragraph (1) for the use of anaffidavit by any party on the hearing of the summons for directions inconnection with any application thereat for any order if, under any of theseRules, an application for such an order is required to be supported by anaffidavit.
(3) If the Court on any hearing of the summons for directions requires aparty to the action or his solicitor or counsel to give any information orproduce 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 suchspecial 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 wholeor any part of the pleadings of the party concerned to be struck out, if theparty is plaintiff or the claimant under a counter-claim, order the action orcounter-claim to be dismissed on such terms as may be just.
(4) Notwithstanding anything in the foregoing provisions of this rule, noinformation or documents which are privileged from disclosure shall be requiredto be given or produced under this rule by or by the solicitors of any party otherwise than with theconsent of that party.
Duty to make all interlocutory applications on summons for directions. (0.25, r.7).
7. (1) Any party to whom the summons for directions is addressed mustso far as practicable apply at the hearing of the summons for any order ordirections which he may desire as to any matter capable of being dealt with onan interlocutory application in the action and must, not less than 7 days beforethe hearing of the summons, serve on the other parties a notice in Form 47specifying those orders and directions in so far as they differ from the ordersand directions asked for by the summons.
(2) If the hearing of the summons for directions is adjourned and any partyto the proceedings desires to apply at the resumed hearing for any order ordirections 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 sofar as they differ from the orders and directions asked for by the summons or inany such notice as aforesaid.
(3) Any application subsequent to the summons for directions and beforejudgment as to any matter capable of being dealt with on an interlocutoryapplication 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 direction in personal injury action. (0.25, r.8).
8. (1) When the pleadings in any action to which this rule appliesare deemed to be closed the following directions shall take effect automatically—
(a) there shall be discovery of documents within 14 days inaccordance with Order 24, rule 2, and inspection within 7 days thereafter, savethat where liability is admitted, or where the action arises out of a roadaccident, discovery shall be limited to disclosure by the plaintiff of anydocuments relating to special damages;
(b) subject to paragraph (2), where any party intends to placereliance at the trial on expert evidence, he shall, within 10 weeks, disclosethe substance of that evidence to the other parties in the form of a writtenreport, which shall be agreed if possible;
(c) unless such reports are agreed, the parties shall be at liberty tocall as expert witnesses those witnesses the substance of whose evidence hasbeen disclosed in accordance with the preceding subparagraph, except that thenumber of expert witnesses shall be limited in any case to two medical expertsand one expert of any other kind;
(d) photographs, a sketch plan and the contents of any policeaccident report book shall be receivable in evidence at the trial, and shall beagreed if possible;
(e) the action shall be set down within 6 months;
(f) the Court shall be notified, on setting down, of the estimatedlength of the trial.
(2) Where paragraph 1 (b) applies to more than one party the reports shall be disclosed by mutual exchange, medical for medical andnon-medical for non-medical, within the time provided or as soon thereafter asthe reports on each side are available.
(3) Nothing in paragraph (1) shall prevent any party to an action to whichthis rule applies from applying to Court for such further or differentdirections or order 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 orapprehended collision involving a vehicle; and “documents relating to special damages” include —
(a) documents relating to any industrial injury, industrial disablement or sickness benefit rights; and
(b) document relating to any claim for dependency on thedeceased.
(5) This rule applies to any action for personal injuries except —
(a) any Admiralty action; and
(b) any action where the pleadings contain an allegation of anegligent act or omission in the course of medical treatment.
ORDER 26
INTERROGATORIES
Discovery by interrogatories. (0.26, r.1).
1. (1) A party to any cause or matter may apply by summons in Form 48to the Court for an order —
(a) giving him leave to serve on any other party interrogatoriesrelating to any matter in question between the applicant and that other party inthe cause or matter; and
(b) requiring that other party to answer the interrogatories onaffidavit within such period as may be specified in the order.
(2) A copy of the proposed interrogatories in Form 49 must be served withthe summons by which the application for such leave is made.
(3) On the hearing of an application under this rule, the Court shall giveleave as to such only of the interrogatories as it considers necessary eitherfor disposing fairly of the cause or matter or for saving costs; and in deciding whether to give leavethe Court shall take into account any offer made by the party to be interrogatedto give particulars or to make admissions or to produce documents relating toany matter in question.
(4) A proposed interrogatory which does not relate to such a matter as ismentioned in paragraph (1) shall be disallowed notwithstanding that it might beadmissible in oral cross-examination of a witness.
(5) If an order is made it must be in Form 50 and must be served by theapplicant on the party against whom it is made.
(6) Interrogatories must be answered by affidavit in Form 51 and theaffidavit must be filed and a copy thereof served on the party interrogatingwithin the time named in the order.
Discovery by interrogatories without leave of Court. (0.26, r.2).
2. A party to any cause or matter may at any time before the close ofpleadings without the leave of the Court deliver interrogatories relating to anymatter in question between the parties.
Interrogatories where party is a body of persons. (0.26, r.3).
3. Where a party to a cause or matter is a body of persons, whethercorporate or unincorporate, being a body which is empowered by law to sue or besued whether in its own name or in the name of an officer or other person, theCourt may, on the application of any other party, make an order allowing him toserve interrogatories on such officer or member of the body or person as may bespecified in the order.
Statement as to party etc. required to answer. (0.26, r.4).
4. Where interrogatories are to be served on two or more parties orare required to be answered by an agent or servant of a party, a note at the endof the interrogatories shall state which of the interrogatories each party or,as the case may be, an agent or servant is required to answer. and which agentor servant.
Objection to answer on ground of privilege. (0.26, r.5).
5. Where a person objects to answering any interrogatory on the groundof privilege he may take the objection in his affidavit in answer.
Insufficient answer. (0.26, r.6).
6. If any person on whom interrogatories have been served answers any of them insufficiently, the Court may make an order requiring himto make a further answer, and either by affidavit or on oral examination as theCourt may direct.
Failure to comply with Order. (0.26, r.7).
7. (1) If a party against whom an order is made under rule l or 6fails to comply with it, the Court may make such order as it thinks justincluding, in particular, an order that the action be dismissed or, as the casemay be, an order that the defence be struck out and judgment be enteredaccordingly.
(2) If a party against whom an order is made under rule l or 6 fails tocomply with it, then, without prejudice to paragraph (1) he shall be liable tocommittal.
(3) Service on a party’s solicitor of an order to answerinterrogatories made against the party shall be sufficient service to found anapplication for committal of the party disobeying the order, but the party mayshow in answer to the application that he had no notice or knowledge of theorder.
(4) A solicitor on whom an order to answer interrogatories made against hisclient is served and who fails without reasonable excuse to give notice thereofto his client shall be liable to committal.
Use of answers to interrogatories at trial. (0.26, r.8).
8. A party may put in evidence at the trial of a cause or matter, orof any issue therein, some only of the answers to interrogatories, or part onlyof such an answer, without putting in evidence the other answers or, as the casemay be, the whole of that answer, but the Court may look at the whole of theanswers and if of opinion that any other answer or other part of an answer is soconnected with an answer or part thereof used in evidence that the one ought notto be so used without the other, the Court may direct that that other answer orpart shall be put in evidence.
Revocation and variation of Orders. (0.26, r.9).
9. 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 orderor direction of the Court made or given at or before the trial of the cause ormatter in connection with which the original order was made.
ORDER 27
ADMISSIONS
Admission of case of other party. (0.27, r.1).
1. Without prejudice to Order 18, rule 13, a party to a cause ormatter may give notice, by his pleading or otherwise in writing, that he admitsthe truth of the whole or any part of the case of any other party.
Notice to admit facts. (0.27, r.2).
2. (1) A party to a cause or matter may not later than 14 days afterthe cause or matter is set down for trial serve on any other party a noticerequiring him to admit, for the purpose of that cause or matter only, the factsspecified in the notice.
(2) An admission made in compliance with a notice under this rule shall notbe used against the party by whom it was made in any cause or matter other thanthe cause or matter for the purpose of which it was made or in favour of anyperson other than the person by whom the notice was given, and the Court may atany time allow a party to amend or withdraw an admission so made by him on suchterms as may be just.
(3) A notice to admit facts under paragraph (1) must be in Form 52 and anadmission of facts under paragraph (2) in Form 53.
Judgment on admission of facts. (0.27 r.3).
3. Where admissions of fact are made by a party to a cause or mattereither by his pleadings or otherwise, any other party to the cause or matter mayapply to the Court for such judgment or order as upon those admissions he may beentitled to, without waiting for the determination of any other question betweenthe parties, and the Court may give such judgment, or make such order, on theapplication as it thinks just. An application for an order under this rule maybe made by summons.
Admission and production of documents specified in list of documents. (0.27, r.4).
4. (1) Subject to paragraph (2), and without prejudice to the rightof a party to object to the admission in evidence of any document, a party onwhom a list of documents is served in pursuance of any provision of Order 24shall, unless the Court otherwise orders, be deemed to admit —
(a) that any document described in the list as an original documentis such a document and was printed, written, signed or executed as it purportsrespectively to have been; and
(b) that any document described therein as a copy is a truecopy.
This paragraph does not apply to a document the authenticity of which theparty has denied in his pleading.
(2) If before the expiration of 14 days after inspection of the documentsspecified in a list of documents or after the time limited for inspection ofthose documents expires, whichever is the later, the party to whom the list isserved serves on the party whose list it is a notice stating, in relation to anydocuments specified therein, that he does not admit the authenticity of thatdocument and requires it to be proved at the trial, he shall not be deemed tomake any admission in relation to that document under paragraph (l).
(3) A party to a cause or matter by whom a list of documents is served onany other party in pursuance of any provision of Order 24 shall be deemed tohave been served by that other party with a notice requiring him to produce at the trial of the causeor 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 affidavitmade in compliance with an order under Order 24, rule 7, as they apply inrelation to a list of documents served in pursuance of any provision of thatOrder.
Notices to admit or produce documents. (0.27, r.5).
5. (1) Except where rule 4(1) applies, a party to a cause or mattermay within 14 days after the cause or matter is set down for trial serve on anyother party a notice requiring him to admit the authenticity of the documentsspecified in the notice.
(2) If a party on whom a notice under paragraph (1) is served desires tochallenge the authenticity of any document therein specified he must, withinfourteen days after service of the notice, serve on the party by whom it wasgiven a notice stating that he does not admit the authenticity of the documentand requires it to be proved at the trial.
(3) A party who fails to give a notice of non-admission in accordance withparagraph (2) in relation to any document shall be deemed to have admitted theauthenticity of that document unless the Court otherwise orders.
(4) Except where rule 4(3) applies, a party to a cause or matter may serveon any other party a notice requiring him to produce the documents specified inthe notice at the trial of the cause or matter.
(5) A notice to admit, a notice of non-admission and a notice to producedocument shall be in Form 54, Form 55 and Form 56 respectively.
ORDER 28
ORIGINATING SUMMONS PROCEDURE
Application. (0.28, r.1).
l. The provisions of this Order apply to all originating summonsessubject, in the case of originating summonses of any particular class, to anyspecial provisions relating to originating summonses of that class made by theseRules or by or under any written law; and, subject as aforesaid, Order 32, rule5, shall apply in relation to originating summonses as it applies in relation toother summonses.
Affidavit evidence. (0.28, r.1A). [S 7/99]
1A. (1) In any cause or matter begun by originating summons (notbeing 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 acknowledgedservice, file with the office of the Court out of which the summons was issuedthe affidavit evidence on which he intends to rely.
(2) In the case of an ex parte summons the applicant must file hisaffidavit evidence not less than four clear days before the day fixed for thehearing.
(3) Copies of the affidavit evidence filed in Court under paragraph (1) mustbe served by the plaintiff on the defendant, or, if there are two or moredefendants, on each defendant, before the expiration of 14 days after servicehas been acknowledged by that defendant.
(4) Where a defendant who has acknowledged service wishes to adduceaffidavit evidence he must within 28 days after service on him of copies of theplaintiff’s affidavit evidence under paragraph (3) file his own affidavitevidence in the office of the Court out of which the summons is issued and servecopies thereof on the plaintiff and on any other defendant who is affectedthereby.
(5) A plaintiff on whom a copy of a defendant’s affidavit evidence hasbeen served under paragraph (4) may within 14 days of such service file in Courtfurther affidavit evidence in reply and shall in that event serve copies thereofon that defendant.
(6) No other affidavit shall be received in evidence without the leave ofthe Court.
(7) Where an affidavit is required to be served by one party on anotherparty it shall be served without prior charge.
(8) The provisions of this rule apply subject to any direction by the Courtto the contrary.
(9) In this rule references to affidavits and copies of affidavits includereferences to exhibits to affidavits and copies of such exhibits.
Fixing time for attendance of parties before Court. (0.28, r.2).
2. (1) Where, in the case of an originating summons to whichappearance is required to be entered, any defendant served with the summons hasentered, or has within the time limited for appearing failed to enter, anappearance, the plaintiff may obtain an appointment for the attendance of theparties before the Court for the hearing of the summons, and a day and time fortheir attendance shall be fixed by a notice in Form 57 sealed with the seal ofthe Court.
(2) A day and time for the attendance of the parties before the Court forthe hearing of an originating summons to which appearance is not required, orfor the hearing of an ex parte originating summons may be fixed on theapplication of the plaintiff or applicant, as the case may be.
(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 inaccordance with that paragraph provided that he has entered an appearance.
Notice of first hearing etc. (0.28, r.3).
3. (1) Not less than 4 clear days before the day fixed under rule 2for the attendance of the parties before the Court for the hearing of anoriginating summons to which appearance is required to be entered, the party onwhose application the day was fixed must serve a copy of the notice fixing it onevery other party who has entered an appearance and, if the first- mentionedparty is a defendant, on the plaintiff.
(2) Not less than 4 clear days before the day fixed under rule 2 for thehearing of an originating summons to which appearance is not required, theplaintiff must serve the summons on every defendant.
(3) Where the plaintiff intends to adduce evidence in support of anoriginating summons at the first hearing thereof he must do so by affidavit and,not less than 4 clear days before the hearing, serve a copy thereof on everydefendant who has entered an appearance or, if the summons is one to which appearance is not required, on every defendant who has been servedwith the summons.
(4) Not less than 4 clear days before the day fixed for the hearing of an ex parte
originating summons the applicant must file an affidavit in support of thesummons.
Directions etc. by Court. (0.28, r.4).
4. (1) The Court by whom an originating summons is heard may, if theliability of the defendant to the plainfiff in respect of any claim made by theplaintiff is established, make such order in favour of the plaintiff as thenature of the case may require, but where the Court makes an order under thisparagraph against a defendant who does not appear at the hearing, the order maybe varied or revoked by a subsequent order of the Court on such terms as itthinks just.
(2) Unless on the hearing of an originating summons the Court disposes ofthe summons altogether or orders the cause or matter begun by it to be transferred to a Subordinate Court or makes an order under rule 8, theCourt shall give such directions as to the further conduct of the proceedings asit thinks best adapted to secure the just, expeditious and economical disposalthereof.
(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 bepracticable, consider whether there is or may be a dispute as to fact andwhether the just, expeditious and economical disposal of the proceedings canaccordingly best be secured by hearing the summons on oral evidence or mainly onoral evidence and, if it thinks fit, may order that no further evidence shall befiled and that the summons shall be heard on oral evidence or partly on oralevidence and partly on affidavit evidence, with or without cross-examination ofany of the deponents, as it may direct.
(4) Without prejudice to the generality of paragraph (2), and subject toparagraph (3), the Court may give directions as to the filing of evidence and as to theattendance of deponents for cross-examination and any directions which it couldgive under Order 25 if the cause or matter had been begun by writ and thesummons were a summons for directions under that Order.
Adjournment of summons. (0.28, r.5).
5. (1) The hearing of the summons by the Court may (if necessary) beadjourned from time to time, either generally or to a particular date, as may beappropriate, and the powers of the Court under rule 4 may be exercised at anyresumed 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 2 mayrestore it to the list on two days’ notice to all the other parties (except a defendant who has failed to enter an appearance, or if thesummons is one to which an appearance is not required, has not been served withthe summons), and any of those parties may restore it with the leave of theCourt.
Applications affecting party in default of appearance. (0.28,r.6).
6. Where in a cause or matter begun by originating summons anapplication is made to the Court for an order affecting a party who has failedto enter an appearance, the Court hearing the application may require to besatisfied in such manner as it thinks fit that the party is in default ofappearance.
Counter-claim by defendant. (0.28, r.7).
7. (1) A defendant to an action begun by originating summons who hasentered an appearance to the summons and who alleges that he has any claim or isentitled 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 respectof that matter instead of bringing a separate action.
(2) A defendant who wishes to make a counter-claim under this rule must atthe first or any resumed hearing of the originating summons by the Court, but,in any case, at as early a stage in the proceedings as is practicable, informthe Court of the nature of his claim and, without prejudice to the powers of theCourt under paragraph (3), the claim shall be made in such manner as the Courtmay direct under rule 4 or 8.
(3) If it appears on the application of a plaintiff against whom acounter-claim is made under this rule that the subject-matter of thecounter-claim ought for any reason to be disposed of by a separate action, theCourt may order the counter-claim to be struck out or may order it to be triedseparately or make such other order as may be expedient.
Continuation of proceedings as if cause or matter begun by writ. (0.28,r.8).
8. (1) Where, in the case of a cause or matter begun by originatingsummons, it appears to the Court at any stage of the proceedings that theproceedings should for any reason be continued as if the cause or matter hadbeen begun by writ, it may order the proceedings to continue as if the cause ormatter had been so begun and may, in particular, order that any affidavits shallstand as pleadings, with or without liberty to any of the parties to add theretoor 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 anotice specifying the orders and directions which they require and with anyother necessary modifications, apply as if there have been a summons fordirections in the proceedings and that order were one of the orders to be madethereon.
(3) This rule applies notwithstanding that the cause or matter in questioncould not have been begun by writ.
(4) Any reference in these Rules to an action begun by writ shall, unlessthe context otherwise requires, be construed as including a reference to a causeor matter proceedings in which are ordered under this rule to continue as if thecause or matter had been so begun.
Order for hearing or trial. (0.28, r.9).
9. (1) Except where the Court disposes of a cause or matter begun byoriginating summons in Chambers or orders it to be transferred to a SubordinateCourt or makes an order in relation to it under rule 8 or some other provisionof these Rules, the Court shall, on being satisfied that the cause or matter isready for determination, make an order for the hearing or trial thereof inaccordance with this rule.
(2) Order 34, rules l to 5, shall apply in relation to a cause or matterbegun by originating summons and to an order made therein under this rule asthey apply in relation to an action begun by writ and shall have effectaccordingly with the necessary modifications and with the further modificationthat for references therein to the summons for directions there shall besubstituted references to the first or any resumed hearing of the originatingsummons by the Court.
Failure to prosecute proceedings with despatch. (0.28, r.10).
10. (1) If the plaintiff in a cause or matter begun by originatingsummons makes default in complying with any order or direction of the Court asto the conduct of the proceedings, or if the Court is satisfied that theplaintiff in a cause or matter so begun is not prosecuting the proceedings withdue despatch, the Court may order the cause or matter to be dismissed or maymake such other order as may be just.
(2) Paragraph (1) shall, with any necessary modifications, apply in relationto a defendant by whom a counterclaim is made under rule 7 as it applies inrelation to a plaintiff.
(3) Where, by virtue of an order made under rule 8, proceedings in a causeor matter begun by originating summons are to continue as if the cause or matterhad begun by writ, the foregoing provisions of this rule shall not apply inrelation to the cause or matter after the making of the order.
Abatement etc. of action. (0.28, r.11).
11. Order 34, rule 6, shall apply in relation to an action begun byoriginating summons as it applies in relation to an action begun by writ.
ORDER 29
PART I
INTERLOCUTORY INJUNCTIONS, INTERIM PRESERVATION OF PROPERTY ETC.
Application for injunction. (0.29, r.1).
[S 28/96]
1. (1) An application for the grant of an injunction may be made byany 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’swrit, originating summons, counter-claim or third party notice, as the case maybe.
(2) Where the application is the plaintiff and the case is one ofurgency such application may be made ex parte by summons supported byan affidavit but, except as aforesaid, such application must be made bysummons.
(3) The plaintiff may not make such an application before the issue of thewrit or originating summons by which the cause or matter is to be begun exceptwhere 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 orsummons and such other terms, if any, as the Court thinks fit.
(4) An order for interim injunction must be in Form 58.
Cross-examination as to assets. (0.29, r.1A). [S 7/99]
1A. (1) Where —
(a) the Court has made an order restraining any party from removingfrom the jurisdiction of the High Court, or otherwise dealing with anyassets;
(b) that party has in compliance with the order, or any order madein connection with it, filed affidavit evidence as to his or any other assets;and
(c) the Court has ordered that that party shall be cross-examined on his affidavit,
the Court may order that the cross-examination shall be conducted otherwisethan before a Judge, in which case the cross-examination shall take place before aRegistrar.
(2) A cross-examination of a kind referred to in paragraph (1) (c) shall take place in chambers and no transcript or other record of it may be usedby any person, other than the party being cross-examined, for any purpose otherthan the purpose of the proceedings in which the order for the cross-examinationwas made, unless and to the extent that that party consents or the Court givesleave.
Detention, preservation etc. of subject matter of cause or matter. (0.29,r.2).
2. (1) On the application of any party to a cause or matter the Courtmay make an order for the detention, custody or preservation of any propertywhich is the subject-matter of the cause or matter, or as to which any questionmay arise therein, or for the inspection of any such property in the possessionof a party to the cause or matter.
(2) For the purpose of enabling any order under paragraph (1) to be carriedout the Court may by the order authorise any person to enter upon any immovableproperty 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 causeor 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.
just.
(4) An order under this rule may be made on such terms, if any, as the Courtthinks
(5) An application for an order under this rule must be made by summons.
(6) Unless the Court otherwise directs, an application by a defendant forsuch an order may not be made before he enters an appearance.
Power to order samples to be taken etc. (0.29, r.3).
3. (1) Where it considers it necessary or expedient for the purposeof 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 anyproperty which is the subject-matter of the cause or matter or as to which anyquestion may arise therein, any observation to be made on such property or anyexperiment to be tried on or with such property.
(2) For the purpose of enabling any order under paragraph (1) to be carriedout the Court may by the order authorise any person to enter upon any immovableproperty 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 orderunder this rule as they apply in relation to an application for an order underthat rule.
Sale of perishable property etc. (0.29, r.4).
4. (1) The Court may, on the application of any party to a cause ormatter, make an order for the sale by such person, in such manner and on suchterms (if any) as may be specified in the order of any movable property which isthe subject-matter of the cause or matter or as to which any question arisestherein and which is of a perishable nature or likely to deteriorate if kept orwhich for any other good reason it is desirable to sell forthwith.
(2) Rule 2(5) and (6) shall apply in relation to an application for an orderunder this rule as they apply in relation to an application for an order underthat rule.
Order for early trial. (0.29, r.5).
5. Where on the hearing of an application, made before the trial of acause or matter, for an injunction or the appointment of a receiver or an orderunder rule 2, 3 or 4 it appears to the Court that the matter in dispute can bebetter dealt with by an early trial than by considering the whole merits thereoffor the purpose of the application, the Court may make an order accordingly andmay also make such order as respects the period before trial as the justice ofthe case requires.
Recovery of movable property subject to lien etc. (0.29, r.6).
6. Where the plaintiff, or the defendant by way of counter-claim,claims the recovery of specific movable property and the party from whomrecovery is sought does not dispute the title of the party making the claim byclaims to be entitled to retain the property by virtue of a lien or otherwise assecurity 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 theproperty be at liberty to pay into Court, to abide the event of the action, theamount 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 suchpayment being made, the property claimed be given up to the party claiming it,but subject to the provisions of the Exchange Control Act.
Directions. (0.29, r.7).
7. (1) Where an application is made under any of the foregoingprovisions of this Order, the Court may give directions as to the further proceedings in thecause or matter.
(2) If, in an action begun by writ, not being any such action as ismentioned in sub- paragraphs (a) to (c) and (e) to (g) of Order 25, rule 1(2), the Court thinks fit to give directionsunder this rule before the summons for directions, rules 2 to 7 of that Ordershall, with the omission of so much of rule 7(l) as requires parties to serve anotice specifying the orders and directions which they desire and with any othernecessary modifications, apply as if the application were a summons fordirections.
Property. (0.29, r.7A). [S 7/99]
7A. (1) An application for an order for the inspection of propertywhich may become the subject-matter of subsequent proceedings in the High Courtor as to which any question may arise in any such proceedings shall be made byoriginating summons and the person against whom the order is sought shall bemade defendant to the summons.
(2) An application after the commencement of proceedings for an order inrespect of property which is not the property of, or in the possession of, anyparty to the proceedings shall be by summons, which must be served on the personagainst whom the order is sought personally and on every party to theproceedings other than the applicant.
(3) A summons under paragraph (1) or (2) shall be supported by affidavitwhich must specify or describe the property in respect of which the order issought and show, if practicable by reference to any pleading served or intendedto be served in the proceedings or subsequent proceedings, that it is property which is or may become thesubject-matter of the proceedings or as to which any question arises or mayarise in the proceedings.
(4) A copy of the supporting affidavit shall be served with the summons onevery person on whom the summons is required to be served.
(5) An order made under this rule may be made conditional on theapplicant’s giving security for the costs of the person against whom it ismade or on such other terms, if any, as the Court thinks just.
(6) No such order shall be made if it appears to the Court —
(a) that compliance with the order, if made, would result in thedisclosure of information relating to a secret process, discovery or inventionnot in issue in the proceedings; and
(b) that the application would have been refused on that ground if—
(i) in the case of a summons under paragraph (1) the subsequentproceedings had already been begun; or
(ii) in the case of a summons under paragraph (2) the person against whomthe order is sought were a party to the proceedings.
Allowance of income of property pendente lite. (0.29,r.8).
8. Where any movable or immovable property forms the subject matter of any proceedings, and the Court is satisfied that it will be morethan sufficient to answer all the claims thereon for which provision ought to bemade in the proceedings, the Court may at any time allow the whole or part ofthe income of the property to be paid, during such period as it may direct, toany or all of the parties who have an interest therein or may direct that anypart of the movable property be transferred or delivered to any or all of suchparties.
Injunctions. (0.29, r.9).
9. (1) Without prejudice to the powers conferred by this Order, theCourt may, by order, whether interlocutory or final, grant an injunction in allcases in which it appears to the Court to be just and convenient to do so.
(2) Any order made under this Order may be made either unconditionally or onsuch terms and conditions as the Court thinks fit.
(3) The power of the Court under this Order, to grant an interlocutoryinjunction restraining the party to any proceedings from removing from thejurisdiction of the High Court of Brunei Darussalam, to otherwise dealing with assets located within that jurisdiction, shall be exercisable as wellin cases where that party is, as well as in cases where he is not, domiciled,resident or present within the jurisdiction.
PART II
INTERIM PAYMENTS
Interpretation of Part II. (0.29, r.10). [S 28/96]
10. In this Part of this Order —
“interim payments”, in relation to a defendant, means a paymenton account of any damages, debt or other sum (excluding costs) which he may beheld liable to pay to or for the benefit of the plaintiff; and any reference tothe plaintiff or defendant includes a reference to any person who, for the purpose of the proceedings, acts as next friend of the plaintiff orguardian of the defendant.
Application for interim payment. (0.29, r.11). [S 28/96]
11. (1) The plaintiff may, at any time after the writ has been servedon 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 interimpayment.
(2) An application under this rule shall be made by summons but may beincluded in a summons for summary judgment under Order 14.
(3) An application under this rule shall be supported by an affidavit whichshall —
(a) verify the amount of the damages, debt or other sum to which the application relates and the grounds of the application;
(b) exhibit any documentary evidence relied on by the plaintiff insupport of the application; and
(c) if thc plaintiff’s claim is made under the Emergency (FatalAccidents and Personal Injuries) Order, 1991, contain the particulars mentionedin section 5(4) of that Order.
(4) The summons and a copy of the affidavit in support and any documentsexhibited thereto shall be served on the defendant against whom the order issought not less than 10 clear days before the return day.
(5) Notwithstanding the making or refusal of an order for an interimpayment, a second or subsequent application may be made upon cause shown.
Order for ir interim payment in respect of damages. (0.29, r.12). [S 28/96]
12. (1) If, on the hearing of an application under rule 11 in anaction for damages, the Court is satisfied —
(a) that the defendant against whom the order is sought (in thisparagraph referred to as “the respondent”) has admitted liabilityfor the plaintiff’s damages;
(b) that the plaintiff’s has obtained judgment against the respondent for damages to be assessed; or
(c) that, if the action proceeded to trial, the plaintiff would obtainjudgment 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 therespondent to make an interim payment of such amount as it thinks just, notexceeding a reasonable proportion of the damages which in the opinion of theCourt are likely to be recovered by the plaintiff, after taking into account anyrelevant contributory negligence and any setoff, cross-claim or counter-claim onwhich the respondent may be entitled to rely.
(2) No order shall be made under paragraph (1), in an action for personalinjuries, if it appears to the Court that the defendant is not a person fallingwithin one of thc following categories, namely —
(a) a person who is insured in respect of the plaintiff’sclaim;
(b) a public body; or
(c) a person whose means and resources are such as to enable him tomake the interim payment.
Order for interim payment in respect of sums other then damages.(0.29, r.13).
[S 28/96]
13. If, on the hearing of an application under rule 11, the Court issatisfied —
(a) that the plaintiff has obtained an order for an account to betaken as between himself and the defendant and for any amount certified due ontaking the account to be paid;
(b) that the plaintiff’s action includes a claim forpossession of land and, if the action proceeded to trial, the defendant would beheld liable to pay to the plaintiff a sum of money in respect of thedefendant’s use and occupation of the land during the pendency of theaction, even if a final judgment or order were given or made in favour of thedefendant; or
(c) that, if the action proceeded to trial, the plaintiff would obtainjudgment against the defendant for a substantial sum of money apart from anydamages or costs,
the Court may, if it thinks fit, and without prejudice to any contentions ofthe parties as to the nature or character of the sum to be paid by the defendantorder the defendant to make an interim payment of such amount as it thinks just,after taking into account any set-off, cross- claim or counter-claim on whichthe defendant may be entitled to rely.
Manner of interim payment. (0.29, r.14). [S 28/96]
14. (1) Subject to Order 73, rule 12, the amount of any interimpayment ordered to be made shall be paid to the plaintiff unless the orderprovides 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 partof it to be paid out to him at such time or times as the Court thinks fit.
(2) An application under paragraph (1) for money in Court to be paid out maybe made ex parte , but the Court hearing the application may direct asummons 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 andoccupation of land, the order may provide for periodical payments to be madeduring the pendency of the action.
Directions on application under rule 11. (0.29, r.15). [S28/96]
15. Where an application is made under rule 11, the Court may givedirections as to the further conduct of the action, and, so far as may beapplicable, Order 25, rules 2 to 7, shall, with the omission of so much of rule7(1) as requires the parties to serve a notice specifying the orders anddirections which they require and with any other necessary modifications, applyas if the application were a summons for directions, and, in particular, theCourt may order an early trial of the action.
Non-disclosure of interim payment. (0.29, r.16). [S28/96]
16. The fact that an order has been made under rules 12 or 13 shallnot be pleaded and, unless the defendant consents or the court so directs, nocommunication 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 thetrial, or hearing, of any question or issue as to liability or damages until allquestions of liability and amount have been determined.
Payment into Court in satisfaction. (0.29, r.17). [S28/96]
17. Where, after making an interim payment, whether voluntarily orpursuant 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 had taken intoaccount the interim payment.
Adjustment on final judgment or order or on discontinuance. (0.29, r.18). [S 28/96]
18. (1) Where a defendant has been ordered to make an interim paymentor has in fact made an interim payment, whether voluntarily or pursuant to anorder, the Court may, in giving or making a final judgment or order, or grantingthe plaintiff leave to discontinue his action or to withdraw the claim inrespect of which the interim payment has been made, or at any other stage of theproceedings on the application of any party, make such order with respect to theinterim payment as may be just, and in particular —
(a) an order for the repayment by the plaintiff of all or part ofthe 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 theinterim payment which the defendant who made it is entitled to recover from himby 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. (0.29, r.19). [S28/96]
19. The preceding rules in this Part of this Order shall apply, with the necessary modifications, to any counter-claim or proceedingcommenced otherwise than by writ, where one party seeks an order for an interimpayment to be made by another.
ORDER 30
RECEIVERS
Application for receiver and injunction. (0.30, r.1).
1. (1) An application for the appointment of a receiver may be madeby summons or motion.
(2) An application for an injunction ancillary or incidental to an orderappointing a receiver may be joined with the application for such order.
(3) Where the applicant wishes to apply for the immediate grant of suchinjunction, he may do so ex parte by summons supported by anaffidavit.
(4) The Court hearing an application under paragraph (3) may grant aninjunction restraining the party beneficially entitled to any interest in theproperty of which a receiver is sought from assigning, charging or otherwisedealing with that property until after the hearing of a summons for theappointment of the receiver and may require such a summons returnable on suchdate as the Court may direct, to be issued.
Giving of security by receiver. (0.30, r.2).
2. (1) Where a judgment is given, or order made, directing the appointment of a receiver, then, unless the judgment or order otherwise directs, a person shall not be appointed receiver in accordancewith the judgment or order until he has given security in accordance with thisrule.
(2) Where by virtue of paragraph (1), or of any judgment or order appointinga person named therein to be receiver, a person is required to give security inaccordance with this rule he must give security approved by the Court duly toaccount for what he receives as receiver and to deal with it as the Courtdirects.
(3) Unless the Court otherwise directs, the security shall be by guaranteeor, if the amount for which the security is to be given does not exceed $20,000,by an undertaking in Form 59.
(4) The guarantee or undertaking must be filed in the Registry.
Remuneration of receiver. (0.30, r.3).
[S 31/00]
3. A person appointed receiver shall be allowed such properremuneration, if any, as may be fixed by the Court.
Service. (0.30, r.3A). [S 77/00]
3A. A copy of the judgment or order appointing a receiver shall beserved by the party having conduct of the proceedings on the receiver and allother parties to the cause or matter in which the receiver has beenappointed.
Receiver’s accounts. (0.30, r.4).
4. (1) A receiver must submit accounts to the Court at such intervalsor on such dates as the Court may direct in order that they may be passed.
(2) Unless the Court otherwise directs, each account submitted by a receivermust be accompanied by an affidavit verifying it in Form 60.
(3) The receiver’s account and affidavit (if any) must be left at theRegistry, and the plaintiff or party having the conduct of the cause or mattermust thereupon obtain an appointment for the purpose of passing suchaccount.
(4) The passing of a receiver’s account must be certified by theRegistry.
Payment of balance etc. by receiver. (0.30, r.5).
5. The days on which a receiver must pay into Court the amounts shownby his account as due from him, or such part thereof as the Court may certify asproper to be paid in by him, shall be fixed by the Court.
Default by receiver. (0.30, r.6).
6. (1) Where a receiver fails to attend for the passing of anyaccount of his, or fails to submit any account, make any affidavit or do anyother thing which he is required to submit, make or do, he and any or all of theparties to the cause or matter in which he was appointed may be required toattend in Chambers to show cause for the failure, and the Court may, either inchambers or after adjournment into Court, give such directions as it thinksproper including, if necessary, directions for the discharge of the receiver andthe appointment of another and the payment of costs.
(2) Without prejudice to paragraph (1), where a receiver fails to attend forthe passing of any account of his or fails to submit any account or fails to payinto Court on the date fixed by the Court any sum shown by his account as duefrom him, the Court may disallow any remuneration claimed by the receiver in anysubsequent account and may, where he has failed to pay any such sum into Court,charge him with interest at the rate of 6 per centum per annum on that sum whilein his possession as receiver.
Directions. (0.30, r.7). [S 77/00]
7. A receiver may at any time request the Court to give him directionsand such request shall state in writing the matters with regard to whichdirections are required.
ORDER 31
SALES ETC. OF IMMOVABLE PROPERTY BY ORDER OF COURT
Power to order sale of immovable property. (0.31, r.1).
1. Where in any cause or matter relating to any immovable property it appears necessary or expedient for the purposes of the cause ormatter that the property or any part thereof should be sold, the Court may orderthat property or part to be sold, and any party bound by the order and inpossession of that property or part, or in receipt of the rents and profitsthereof, may be compelled to deliver up such possession or receipt to thepurchaser or to such other person as the Court may direct.
Manner of carrying out sale. (0.31, r.2).
2. (1) Where an order is made, whether in court or in Chambers, directing any immovable property to be sold, the Court may permitthe party or person having the conduct of the sale to sell the property in suchmanner as he thinks fit, or may direct that the property be sold in such manneras the Court may either by the order or under paragraph (4) direct for the bestprice that can be obtained, and all proper parties shall join in thesale and conveyance as the Court shall direct.
(2) The party entitled to prosecute the order must, subject to paragraph(3), take out a summons to proceed with the order.
(3) Where an order for sale contains directions with regard to effecting thesale, the party entitled to prosecute the order shall not take out a summonsunder paragraph (2) unless and until he requires the further directions of theCourt.
(4) On the hearing of the summons the Court may give such directions as itthinks fit for the purpose of effecting the sale, including, without prejudiceto the generality of the foregoing words, directions —
(a) appointing the party or person who is to have the conduct ofthe sale;
(b) fixing the manner of sale, whether by contract conditional onthe approval of the Court, private treaty, public auction, tender or some othermanner;
(c) fixing a reserve or minimum price;
(d) requiring payment of the purchase money into Court or totrustees 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, ifthe sale is to be by public auction, and the remuneration to be allowed him;
(h) requiring the title to be referred to an advocate and solicitorfor his opinion thereon and to settle the particulars and conditions ofsale.
Certifying result of sale. (0.31, r.3).
3. (1) If either the Court has directed payment of the purchase moneyinto Court or the Court so directs, the result of a sale by order of the Court must becertified in Form 61 —
(a) in the case of a sale by public auction, by the auctioneer whoconducted the sale; and
(b) in any other case, by the solicitor or the party or personhaving the conduct of the sale,
and the Court may require the certificate to be verified by the affidavit ofthe auctioneer or solicitor, as the case may be.
(2) The solicitor of the party or person having the conduct of the sale mustfile the certificate and affidavit (if any) in the Registry.
Charge, exchange or partition under order of the Court. (0.31,r.4).
4. Rules 2 and 3 shall, so far as applicable and with the necessarymodifications, apply in relation to the charge, exchange or partition of anyimmovable property under an order of the Court as they apply in relation to thesale of any immovable property under such an order.
Reference of matters to a solicitor. (0.31, r.5).
5. The Court may refer to a solicitor —
(a) any matter relating to the investigation of the title to anyproperty with a view to an investment of money in the purchase or on chargethereof, or with a view to the sale thereof;
(b) any matter relating to the settlement of a draft of atransfer charge, settlement or other instrument; and
(c) any other matter it thinks fit,
and may act upon his opinion in the matter referred.
Objection to opinion of solicitor. (0.31, r.6).
6. Any party may object to the opinion given by the solicitor on areference under rule 5, and if he does so the point in dispute shall be determined by the Judgeeither in Chambers or in Court as he thinks fit.
ORDER 32
APPLICATIONS AND PROCEEDINGS IN CHAMBERS
Mode of making application. (0.32, r.1).
1. Except as provided by Order 25, rule 7, every application inChambers must be made by summons in Form 62.
Issue of summons. (0.32, r.2).
2. (1) Issue of a summons by which an application in Chambers is tobe made takes place on its being sealed by an officer of the Registry.
(2) A summons may not be amended after issue without the leave of theCourt.
Service of summons. (0.32, r.3).
3. A summons asking only for the extension or abridgment of any periodof time may be served on the day before the day specified in the summons for thehearing thereof but, except as aforesaid and unless the Court otherwise ordersor any of these Rules otherwise provides, a summons must be served on everyother party not less than 2 clear days before the day so specified.
Adjournment of hearing. (0.32, r.4).
4. (1) The hearing of a summons may be adjourned from time to time,either generally or to a particular date, as may be appropriate.
(2) If the hearing is adjourned generally, the party by whom the summons wastaken out may restore it to the list on 2 clear days' notice to all the otherparties on whom the summons was served.
Proceeding in absence of party failing to attend. (0.32, r.5).
5. (1) Where any party to a summons fails to attend on the first orany resumed hearing thereof, the Court may proceed in his absence if, having regard to the nature of the application, it thinks it expedient soto do.
(2) Before proceeding in the absence of any party the Court may require tobe satisfied that the summons or as the case may be, notice of the timeappointed 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, theCourt, if satisfied that it is just to do so, may rehear the summons.
(4) Where an application made by summons has been dismissed without ahearing by reason of the failure of the party who took out the summons to attendthe hearing, the Court, if satisfied that it is just to do so. may allow thesummons to he restored to the list.
Order made ex parte may be set aside. (0.32, r.6).
6. The Court may set aside an order made ex parte .
7. Revoked. (0.32, r.7).
[S 8/99]
Application for leave to institute certain proceedings. (0.32,r.8).
8. (1) The jurisdiction of the High Court to grant leave under anylaw concerned with mental disorders to bring proceedings against a person, maybe exercised in Chambers only by a Judge.
(2) No appearance need be entered to an originating summons by which an application for leave under the said law is made.
(3) The application must be supported by an affidavit setting out thegrounds on which such leave is sought and any facts necessary to substantiatethose grounds.
Jurisdiction of Registrar. (0.32, r.9).
9. The Registrar shall have power to transact all such business andexercise all such authority and jurisdiction as under the Act or these Rules maybe transacted and exercised by a Judge or Court except such business, authorityand jurisdiction as the Chief Justice may from time to time direct to betransacted or exercised by a Judge in person or as may by any of these Rules beexpressly directed to be transacted or exercised by a Judge in person: Providedthat if, for any reason, no Judge is present in Brunei Darussalam, the Registrarmay exercise any of such powers as may have been so directed.
Reference of matter to Judge. (0.32, r.10).
10. The Registrar may refer to a Judge any matter which he thinksshould properly be decided by a Judge, and the Judge may either dispose of thematter or refer it back to the Registrar, as the case may be, with suchdirections as he thinks fit.
Power to direct hearing in Court. (0.32, 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 Courtto be so heard if he considers that by reason of its importance or for any otherreason 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.
Obtaining assistance of experts. (0.32, r.12).
12. If the Court thinks it expedient in order to enable it better todetermine any matter arising in proceedings in Chambers, it may obtain theassistance of any person specially qualified to advise on that matter and mayact upon his opinion.
Notice of filing etc. of affidavit. (0.32, r.13).
13. Any party —
(a) filing an affidavit intended to be used by him in anyproceedings in Chambers; or
(b) intending to use in any such proceedings any affidavit filed byhim in previous proceedings,
must give notice to every other party of the filing or, as the case may be,of his intention to do so.
Disposal of matters in Chambers. (0.32, r.14).
14. The Judge may by any judgment or order made in Court in anyproceedings direct that such matters (if any) in the proceedings as he mayspecify shall be disposed of in Chambers.
Papers for use of Court etc. (0.32, r.15).
15. The original of any document which is to be used in evidence inproceedings in Chambers must, if it is available, be brought in, and copies ofany such document or of any part thereof shall be supplied for the use of theCourt or be given to the other parties to the proceedings.
Uncontested chamber applications. (0.32, r.16).
16. If a Judge is satisfied that all parties to an application atChambers have been served and have consented to the application he may in theabsence of the parties or their solicitors order the granting of the applicationby minute on the file and the Court shall inform the applicant or his solicitorin writing of the order.
Notes of proceeding in Chambers. (0.32, r.17). [S 77/00]
17. (1) A note shall be kept of all proceedings in Chambers, with ashort statement of the matters decided at each hearing.
(2) The note specified in paragraph (1) shall be privileged and private andshall be disclosed to any person without the leave of the Judge or Registrarconcerned.
ORDER 33
MODE OF TRIAL
Mode of trial. (0.33, r.1).
1. Subject to the provisions of these Rules, a cause or matter, or anyquestion or issue arising therein, may be tried before —
(a) a Judge; or
(b) the Registrar.
Time etc. at trial of questions or issues. (0.33, r.2).
2. The Court may order any question or issue arising in a cause ormatter, whether of fact or law or partly of fact and partly of law, and whetherraised by the pleadings or otherwise, to be tried before, at or after the trialof the cause or matter, and may give directions as to the manner in which thequestion or issue shall be stated.
Determining the mode of trial. (0.33, r.3).
3. (1) In every action begun by writ, an order made on the summonsfor directions shall determine the mode of the trial; and any such order may bevaried 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 betried by different modes of trial and one or more questions or issues may beordered to be tried before the others.
(3) The references in this Order to the summons for directions includereferences to any summons or application to which, under any of these Rules,Order 25, rules 2 to 7 are to apply, with or without modifications.
Dismissal of action etc. after decision of preliminary issue. (0.33,r.4).
4. If it appears to the Court that the decision of any question orissue arising in a cause or matter and tried separately from the cause or mattersubstantially disposes of the cause or matter or renders the trial of the causeor matter unnecessary, it may dismiss the cause or matter or make such otherorder or give such judgment therein as may be just.
Split trial offer on liability. (0.33, r.4A). [S 7/99; S31/00]
4A. (1) This rule applies where an order is made under rule 3(2) forthe issue of liability to be tried before any issue or question concerning theamount of damages to be awarded if liability is established.
(2) After the making of an order to which paragraph (1) applies, any partyagainst whom a finding of liability is sought may (without prejudice to hisdefence) make a written offer to the other party to accept liability up to aspecified proportion.
(3) Any offer made under the preceding paragraph may be brought to theattention of the Judge after the issue of liability has been decided, but notbefore.
ORDER 34
SETTING DOWN FOR TRIAL ACTION BEGUN BY WRIT
Application and interpretation. (0.34, r.1).
1. This Order applies to actions begun by writ and, accordingly,references in this Order to an action shall be construed as references to anaction so begun.
Time for setting down action. (0.34, r.2).
2. (1) Every order made on a summons for directions shall fix aperiod within which the plaintiff is to set down the action for trial and mustcontain an estimate of the length of the trial and the approximate number ofwitnesses, if any.
(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 fortrial or may apply to the Court to dismiss the action for want of prosecution and, on the hearing of any such application, the Court mayorder the action to be dismissed accordingly or may make such order as it thinksjust.
(3) An action set down for trial must contain an estimate of the length ofthe trial and the approximate number of witnesses (if any) and shall, subject toany directions under rule 4, specify the list in which the action is to be put.
Lodging documents when setting down. (0.34, r.3).
3. (1) In order to set down for trial an action, the party setting itmust deliver to the Registrar, by post or otherwise, a request in Form 63 thatthe action may be set down for trial together with two bundles (one of whichshall serve as the record and the other be for the use of the Judge) consistingof one copy of each of the following documents this is to say —
(a) the writ;
(b) the pleadings (including any affidavits ordered to stand aspleadings), any notice or order for particulars and the particulars given;and
(c) all orders made on the summons for directions.
(2) Such bundle must be bound up in the proper chronological order and haveindorsed thereon the names, addresses and telephone numbers of the solicitorsfor the parties or, in the case of a party who has no solicitor, of the partyhimself.
Directions relating to lists. (0.34, r.4).
4. Nothing in this Order shall prejudice any powers of the Chief Justice to give directions —
(i) specifying the lists in which actions, or actions of any class or description, are to be set down for trial and providing for thekeeping and publication of the lists;
(ii) providing for the determination of a date for the trial of any actionwhich has been set down or a date before which the trial thereof is not to takeplace; and
(iii) as to the making of applications (whether to a Court or a Judge or theRegistrar) to fix, vacate or alter any such date, and, in particular, requiringany such application to be supported by an estimate of the length of the trialand any other relevant information.
Notification of setting down. (0.34, r.5).
5. (1) A party to an action who sets it down for trial must, within24 hours after doing so, notify in Form 64 the other parties to the action thathe has done so.
(2) It shall be the duty of all parties to an action entered in any list tofurnish without delay to the Registrar all available information as to theaction being or being likely to be settled, or affecting the estimated length of the trial, and, if the action is settled or withdrawn, tonotify the Registrar of the fact without delay.
Abatement etc. of action. (0.34, r.6).
6. (1) Where after an action has been set down for trial the actionbecomes abated, or the interest or liability of any party to the action isassigned or transmitted to or devolves on some other person, the solicitor for the plaintiff or other party having theconduct of the action must, as soon as practicable after becoming aware of it,certify the abatement or change of interest or liability and send thecertificate to the Registrar and the Registrar shall cause the appropriate entryto be made in the cause book and in the list of actions set down for trial.
(2) Where in any such list an action stands for one year marked as abated orordered to stand over generally, the action shall on the expiration of that yearbe struck out of the list unless, in the case of an action ordered to stand overgenerally, the order otherwise provides.
Notice of trial. (0.34, r.7).
7. Notice of trial may be given by the plaintiff or other party in theposition of the plaintiff at any time after a reply has been delivered or afterthe time for delivery of a reply has expired.
Notice of trial by defendant. Application to dismiss for want ofprosecution. (0.34, r.8).
8. (1) If in any cause or matter where a notice of trial is requiredthe plaintiff does not within six weeks after the time when he first becomesentitled to give notice of trial under rule 7 of this Order or within suchextended time as the Court or a Judge may allow, give notice of trial, thedefendant may, before notice of trial given by the plaintiff, give notice oftrial, or may apply to the Court or Judge to dismiss the action for want ofprosecution; and on the hearing of such application, the Court or a Judge mayorder the action to be dismissed accordingly, or may make such other order, andon such terms, as to the Court or Judge may seem just.
(2) If no notice of trial is given or if the defendant makes no applicationto dismiss the action under sub-rule (1) the Court or Judge may after givingsuch notice as may be necessary dismiss the cause or matter or may make suchorder and on such terms as to costs or otherwise as to the Court or Judge mayseem just.
The Court bundle. (0.34, r.9). [S 7/99]
9. (1) At least 14 days before the date fixed for the trial, or, inthe case of an action entered in any running list, within three weeks of thedefendant’s receiving notice of such entry, the defendant shall identifyto the plaintiff those documents central to his case which he wishes included inthe bundle to be provided under paragraph (2).
(2) At least two clear days before the date fixed for the trial theplaintiff shall lodge two bundles consisting of one copy of each of thefollowing documents —
(a) witness statements which have been exchanged, andexperts’ reports which have been disclosed, together with an indication ofwhether the contents of such document are agreed;
(b) those documents which the defendant wishes to have included inthe bundle and those central to the plaintiff’s case; and
(c) a note agreed by the parties or, failing agreement, a note by eachparty giving (in the following order) —
(i) a summary of the issues involved;
(ii) a summary of any propositions of law to be advanced together with alist of the authorities to be cited; and
(iii) a chronology of relevant events.
(3) Nothing in this rule shall —
(a) prevent the Court from giving, whether before or after thedocuments have been lodged, such further or different directions as to thedocuments to be lodged as may, in the circumstances, be appropriate; or
(b) prevent the making of an order for the transfer of the actionto another court.
(4) For the purposes of this rule, “plaintiff” includes adefendant where an action is proceeding on a counterclaim and“defendant” includes any other party who is entitled under any orderof the Court or otherwise to be heard at the trial.
Parties to appear by special notice. (0.34, r.10).
10. (1) Parties or their solicitors in a cause or matter may byspecial notice be required to appear on any day of for mention of such cause ormatter.
(2) If the plaintiff or defendant fails to appear, the Court or Judge mayfix a date for trial or make such other order as to the Court or Judge may seemjust.
ORDER 34A
PRE-TRIAL CONFERENCES
Power to make orders. (0.34A, r.1). [S 8/99]
1. (1) Notwithstanding anything in these Rules, the Court may, at anytime after the commencement of any proceedings, of its own motion direct anyparty or parties to those proceedings to appear before it, in order that theCourt may make such order or give such direction as it thinks fit, for the just,expeditious and economical disposal of the cause or matter.
(2) Where any party fails to comply with any order made or direction givenby the Court under paragraph (1), the Court may dismiss the action, strike outthe defence or counter-claim or make such other order as it thinks fit.
(3) The Court may, in exercising its powers under paragraph (1), make suchorder as to costs as it thinks fit.
(4) Any judgment, order or direction given or made against any party whodoes not appear before the Court when directed to do so under paragraph (1) maybe set aside or varied by the Court on such terms as it thinks just.
Directions as to pre-trial conferences. (0.34A, r.2). [S8/99]
2. (1) Without prejudice to rule 1, at any time before any action orproceedings are tried, the Court may direct parties to attend a pre-trialconference relating to the matters arising in the action or proceedings.
(2) At the pre-trial conference, the Court may consider any matter includingthe possibility of settlement of any or all of the issues in the action orproceedings and require the parties to furnish the Court with any suchinformation as it thinks fit, and may also give all such directions as appear tobe necessary or desirable for securing the just, expeditious and economicaldisposal of the action or proceedings.
(3) The Court, having made directions under rule 2(2) or rule 3 may eitheron its own motion or upon the application of any party, if any party defaults incomplying with any such directions, dismiss such action or proceedings or strikeout the defence or counterclaim or enter judgment or make such order as itthinks fit.
(4) Any judgment or order made under rule 2(3) may be set aside by theCourt, on the application of the party, on such terms, if any, as it thinksjust.
(5) At any time during the pre-trial conference where the parties areagreeable to a settlement of some or all of the matters in dispute in the actionor proceedings, the Court may enter judgment in the action or proceedings ormake such order to give effect to the settlement.
Notification. (0.34A, r.3). [S 8/99]
3. All parties shall be informed of the date and time appointed forthe holding of the pre-trial conference and each party shall comply with anysuch directions.
Attendance. (0.34A, r.4). [S 8/99]
4. Parties to the action or proceedings may be represented at thepre-trial conference by their solicitor, if any, but may, if they so desire,with the leave of the Court attend the pre- trial conference personally, at thetime originally appointed or as adjourned, in addition to their solicitor.
Adjournment. (0.34A, r.5). [S 8/99]
5. A pre-trial conference may be adjourned from time to time, eithergenerally or to a particular date, as may be appropriate.
Failure to appear. (0.34A, r.6). [S 8/99]
6. (1) If, at the time appointed for the pre-trial conference, one ormore of the parties fails to attend, the Court may dismiss the action orproceedings or strike out the defence or counterclaim or enter judgment or makesuch other order as the Court thinks fit.
(2) An order made by the Court in the absence of a party concerned oraffected by the order may be set aside by the Court, on the application of thatparty, on such terms as it thinks just.
(3) Without prejudice to the preceding paragraphs of this rule, where one ormore of the parties to the action or proceedings fails to attend the pre-trialconference, the Court may, if it thinks fit, adjourn the conference.
Non-disclosure. (0.34A, r.7). [S 8/99]
7. No communication of facts disclosed or of any matter considered inthe course of a pre-trial conference in any action or proceedings shall be madeto the Court conducting the trial of the action or proceeding.
ORDER 35
PROCEEDINGS AT TRIAL
Failure to appear by both parties or one of them. (0.35, r.1).
1. (1) If, when the trial of an action is called on, neither partyappears, the action may be struck out of the list without prejudice, however, tothe 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 theabsence of that party.
Judgment etc. given in absence of party may be set aside. (0.35,r.2).
2. (1) Any judgment or order obtained where one party does not appearat the trial may be set aside by the Court, on the application of that party, onsuch terms as it thinks just.
(2) An application under this rule must be made within 7 days, after thetrial.
Adjournment of trial. (0.35, r.3).
3. The Judge may, if he thinks it expedient in the interest ofjustice, adjourn a trial for such time, and upon such terms, if any, as hethinks fit.
Order of speeches. (0.35, r.4).
4. (1) The Judge before whom an action is tried may give directionsas to the party to begin and the order of speeches at the trial, and subject toany such directions, the party to begin and the order of speeches shall be thatprovided by this rule.
(2) Subject to paragraph (6), the plaintiff shall begin by opening hiscase.
(3) If the defendant elects not to adduce evidence, then, whether or not thedefendant has in the course of cross-examination of a witness for the plaintiffor otherwise put in a document, the plaintiff may, after the evidence on hisbehalf has been given, make a second speech closing his case and the defendantshall then state his case.
(4) If the defendant elects to adduce evidence, he may, after any evidenceon behalf of the plaintiff has been given, open his case and, after the evidenceon his behalf has been given, make a second speech closing his case and at theclose of the defendant’s case the plaintiff may make a speech inreply.
(5) Where there are two or more defendants who appear separately or areseparately represented, then —
(a) if none of them elects to adduce evidence, each of them shallstate 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 mayopen his case and the evidence on behalf of each of them shall be given in theorder aforesaid and the speech of each of them closing his case shall be made inthat order after the evidence on behalf of all the defendants has beengiven;
(c) if some of them elect to adduce evidence and some do not, thosewho do not shall state their cases in the order aforesaid after the speech ofthe plaintiff in reply to the other defendants.
(6) Where the burden of proof of all the issues in the action lies on thedefendant or, where there are two or more defendants and they appear separately or are separately represented, on one of the defendants, thedefendant or that defendant, as the case may be, shall be entitled to begin, andin that case paragraphs (2), (3) and (4) shall have effect in relation to, andas between, him and the plaintiff as if for references to the plaintiff and thedefendant there were substituted references to the defendant and the plaintiffrespectively.
(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 freshpoint of law in that speech or cites in that speech any authority not previouslycited, the opposite party may make a further speech in reply, but only inrelation to that point of law or that authority, as the case may be.
Inspection by Judge. (0.35, r.5).
5. The Judge by whom any cause or matter is tried may inspect anyplace or thing with respect to which any question arises in the cause or matter.All such expenses shall be costs in the proceedings.
Death of party before giving of judgment. (0.35, r.6).
6. Where a party to any action dies after the finding of the issues offact and before judgment is given, judgment may be given notwithstanding thedeath, but the foregoing provision shall not be taken as affecting the power ofthe Judge to make an order under Order 15, rule 7(2), before givingjudgment.
Entries to be made by Registrar or proper officer of the Court. (0.35,r.7).
7. (1) The Registrar or the proper officer of the Court must make anote in the Minute Book of the time at which the trial commences and terminates,and the time actually occupied on each day on which the trial takes place.
(2) At the conclusion of the trial of any action, the Registrar or the saidofficer must enter in the Minute Book the judgment given by the Judge, and anyorder made by the Judge as to costs.
(3) The certificate of the Registrar or the said officer in Form 65 shall besufficient authority for the proper officer in the Registry to enter judgmentaccordingly.
List of exhibits. (0.35, r.8).
8. (1) The Registrar or the proper officer of the Court shall takecharge of every document or object put in as an exhibit during the trial of anyaction and shall mark or label every exhibit with a letter or letters indicatingthe party by whom the exhibit is put in or the witness by whom it is proved, andwith a number, so that all the exhibits put in by a party, or proved by awitness, are numbered in one consecutive series.
In this paragraph a witness by whom an exhibit is proved includes a witnessin the course of whose evidence the exhibit is put in.
(2) The Registrar or the said officer shall cause a list in Form 66 to bemade of all the exhibits in the action, and any party may, on payment of theprescribed fee, have an office- copy of that list.
(3) The list of exhibits when completed shall be attached to the pleadingsand shall form part of the record of the action.
(4) For the purpose of this rule a bundle of documents may be treated andcounted as one exhibit.
Custody of exhibit after trial. (0.35, r.9).
9. (1) The Registrar shall retain all exhibits in his custody dulymarked or labelled so that in the event of an appeal to the Court of Appeal, hemay be able to produce the exhibits so marked or labelled at the hearing of theappeal.
(2) After the expiration of the time for appealing and if no appeal has beenbrought, or after the final disposal of the appeal, as the case may be, theexhibits shall be returned on request of the respective parties who put themin:
Provided that where the claim or counter-claim is for money due under anegotiable instrument which is received in evidence, the negotiable instrumentmust be retained in the Registry and must not be delivered out of the custody ofthe Registry except upon an order of the Registrar.
Impounded documents. (0.35, r.10).
10. (1) Documents impounded by order of the Court shall not bedelivered out of the custody of the Court except in compliance with an order made by the Judge on an application made by motion:
Provided that where the Attorney General makes a written request inthat behalf, documents so impounded shall be delivered into his custody.
(2) Documents impounded by order of the Court, while in the custody of theCourt, shall not be inspected except by a person authorised to do so by an ordersigned by a Judge.
Continuation of trial by another Judge. (0.35, r.11).
11. (1) When a Judge who has commenced a trial of any proceedings isunable through death, illness or other cause to conclude the trial, anotherJudge may with the consent of the parties deal with the evidence alreadyrecorded and proceed with the trial from the stage at which the previous Judgeleft it.
(2) Nothing herein shall prevent the Judge who continues the trial fromrecalling all or any of the witnesses or taking their evidence afresh.
ORDER 36
TRIALS BEFORE AND INQUIRIES BY REGISTRAR OR OTHER COURT
[S 31/00]
Power to order trial before Registrar or other Court. (0.36,r.1).
1. If in any cause or matter, the Court considers, upon application byany party or of its own motion, that having regard to the nature of the case itis desirable (whether on grounds of expedition, economy or convenience orotherwise) in the interests of one or more of the parties, the Court may orderthat the cause or matter, or any question or issue of fact arising therein shallbe tried before any other Court or the Registrar.
[S 31/00]
Trial before and inquiry by Registrar. (0.36, r.2).
2. The Court may, with the consent of the parties to any cause ormatter, order that the cause or matter, or any question or issue of fact arisingtherein, be tried before any other Court or the Registrar.
[S 31/00]
ORDER 37
ASSESSMENT OF DAMAGES
Assessment of damages by Registrar. (0.37, r.1).
1. (1) Where judgment is given for damages to be assessed and noprovision is made by the judgment as to how they are to be assessed, the damagesshall, 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 thenecessary appointment from the Registrar and, at least 7 days before the date ofthe appointment, serving notice of the appointment on the party against whom thejudgment is given, proceed accordingly.
(2) Nowithstanding anything in Order 62, rule 10, a notice under this rulemust be served on the party against whom the judgment is given.
(3) The attendance of witnesses and the production of documents before the Registrar in proceeding under this Order may be compelled by writ ofsubpoena, and the provisions of Order 35 shall, with the necessary adaptations,apply in relation to those proceedings as they apply in relation to proceedingsat a trial.
Certificate of amount of damages. (0.37, r.2).
2. Where in pursuance of this Order or otherwise damages are assessedby the Registrar, he shall certify the amount of the damages.
Default judgment against some but not all defendants. (0.37,r.3).
3. Where any such judgment as is mentioned in rule 1 is given indefault of appearance or in default of defence, and the action proceeds againstother defendants, the damages under the judgment shall be assessed at the trialunless the Court otherwise orders.
Power to order Assessment by Registrar or at trial. (0.37,r.4).
4. The Court may, in the case of any such judgment as is mentioned inrule 1, order either —
(a) that the assessment of the damages shall be made by theRegistrar; or
(b) that the action shall proceed to trial before a Judge asrespects the damages,
and 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 theparties to serve a notice specifying the orders and directions which they desireand with any other necessary modifications, apply as if the application to theCourt in pursuance of which the Court makes the order, were a summons fordirections under Order 25.
Assessment of value. (0.37, r.5).
5. The foregoing provisions of this Order shall apply in relation to ajudgment for the value of goods to be assessed, with or without damages to beassessed, as they apply to a judgment for damages to be assessed, and referencesin those provisions to the assessment of damages shall be construedaccordingly.
Assessment of damages to time of assessment. (0.37, r.6).
6. Where damages are to be assessed (whether under this Order orotherwise) in respect of any continuing cause of action, they shall be assesseddown to the time of the assessment.
Application of rules 7 to 10. (0.37, r.7). [S 8/99]
7. (1) This rule and rules 8 to 10 shall apply to actions for damagesfor personal injuries.
(2) In the following rules of this Order, “award of provisionaldamages” means an award of damages for personal injuries under which—
(a) damages are assessed on the assumption that a contingency willnot happen;
and
(b) the injured person is entitled to apply for further damages ata future date if the contingency happens.
Provisional damages. (0.37 r.8). [S 8/99]
8. (1) The Court may, on such terms as it thinks just and subject tothe provisions of this rule, make an award of provisional damages if theplaintiff has pleaded a claim for provisional damages.
(2) An order for an award of provisional damages shall specify thecontingency in respect of which an application may be made at a future date, andshall also, unless the Court otherwise determines, specify the period withinsuch application may be made.
(3) The Court may, on the application of the plaintiff made within theperiod, if any, specified in paragraph (2), by order extend that period if itthinks it just to do so, and the plaintiff may make more than one suchapplication.
(4) An order for an award of provisional damages may be made in respect ofmore than one contingency and may in respect of each contingency specify adifferent period within which an application may be made at a future date.
(5) Orders 13 and 19 shall not apply in relation to an action in which theplaintiff claims provisional damages.
Offer to submit. (0.37, r.9). [S 8/99]
9. (1) Where an application is made for an award of provisional damages, any defendant may at any time (whether or not he makes apayment into Court or makes an offer to settle) make a written offer to theplaintiff —
(a) to tender a sum of money (which may include an amount to bespecified, in respect of interest) in satisfaction of the plaintiff’sclaim for damages assessed on the assumption that the injured person will not develop the contingency and identifying the contingency in question;and
(b) to agree to the making of an award of provisional damages.
(2) Any offer made under paragraph (1) shall not be brought to the attentionof the Court until after the Court has determined the claim for an award ofprovisional damages.
(3) Where an offer is made under paragraph (1), the plaintiff may, within 21days after receipt of the offer, give written notice to the defendant of hisacceptance of the offer and shall on such acceptance make an application to theCourt for an order in accordance with the provisions of rule 8(2).
Application for further damages. (0.37, r.10). [S 8/99]
10. (1) This rule shall apply where the plaintiff, pursuant to anaward of provisional damages, claims further damages.
(2) No application for further damages may be made after the expiration ofthe period, if any, specified under rule 8(2), or of such period as extendedunder rule 8(3).
(3) The plaintiff shall give not less than 3 months’ written notice tothe defendant of his intention to apply for further damages and, if thedefendant is to the plaintiff’s knowledge insured in respect of theplaintiff’s claim, to the insurers.
ORDER 38
EVIDENCE
PART I
GENERAL EVIDENCE
[S 77/00]
General rule: Witnesses to be examined orally. (0.38, r.1).
1. Subject to the provisions of these Rules and of the Evidence Act(Chapter 108), and of any other written law relating to evidence, any factrequired to be proved at the trial of any action begun by writ by the evidenceof witnesses shall be proved by the examination of the witnesses orally and inopen court.
Evidence by affidavit. (0.38, r.2).
2. (1) Without prejudice to the generality of rule 1, and unlessotherwise provided by any written law or by these Rules, at the trial of anaction commenced by writ, evidence in chief of a witness shall be given by wayof affidavit. Unless the Court otherwise orders or the parties to the actionotherwise agree, such a witness shall attend trial for cross-examination and, in default of his attendance, his affidavit shall not bereceived in evidence except with the leave of the Court.
(2) In any cause or matter begun by originating summons, originating motionor petition, and on any application made by summons or motion, evidence shall begiven by affidavit unless in the case of any such cause, matter or applicationany provision of these Rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order theattendance for cross-examination of the person making any such affidavit, andwhere, after such an order has been made, the person in question does notattend, his affidavit shall not be used as evidence without the leave of theCourt.
(3) Unless the Court otherwise orders, no deponent to an affidavit may atthe trial or hearing of any cause or matter give evidence in chief, the substance of which is not contained in his affidavit except in relationto matters which have arisen after the filing of the affidavit.
(4) Notwithstanding paragraphs (1), (2) or (3), the Court may, if it thinksjust, order that evidence of a party or any witness or any part of such evidencebe given orally at the trial or hearing of any cause or matter.
(5) Nothing in this rule shall make admissible evidence which if givenorally would be inadmissible.
[S 41/92; S 31/00]
Exchange of witness statements. (0.38, r.2A). [S 7/99]
2A. (1) The powers of the Court under this rule shall be exercisedfor the purpose of disposing fairly and expeditiously of the cause or matterbefore it, and saving costs, having regard to all the circumstances of the case,including (but not limited to) —
(a) the extent to which the facts are in dispute or have beenadmitted;
(b) the extent to which the issues of fact are defined by thepleadings; and
(c) the extent to which information has been or is likely to beprovided by further and better particulars, answers to interrogatories orotherwise.
(2) At the summons for directions in an action commenced by writ the Courtshall direct every party to serve on the other parties, within 14 weeks (or suchother period as the Court may specify) of the hearing of the summons and on suchterms as the Court may specify, written statements of the oral evidence whichthe party intends to adduce on any issues of fact to be decided at thetrial.
The Court may give a direction to any party under this paragraph at any otherstage of such an action and at any stage of any other cause or matter.
Order 3, rule 4(3) shall not apply to any period specified by the Court underthis paragraph.
(3) Directions under paragraph (2) or (17) may make different provision withregard to different issues of fact or different witnesses.
(4) Statements served under this rule shall —
(a) be dated and, except for good reason (which should be specifiedby letter accompanying the statement), be signed by the intended witness andshall include a statement by him that the contents are true to the best of hisknowledge and belief;
(b) sufficiently identify any documents referred to therein;and
(c) where they are to be served by more than one party, be exchanged simultaneously.
(5) Where a party is unable to obtain a written statement from an intendedwitness in accordance with paragraph (4) (a) , the Court may direct theparty wishing to adduce that witness’s evidence to provide the other partywith the name of the witness and (unless the Court otherwise orders) a statementof the nature of the evidence intended to be adduced.
(6) Subject to paragraph (9), where the party serving a statement under thisrule does not call the witness to whose evidence it relates, no other party mayput the statement in evidence at the trial.
(7) Subject to paragraph (9), where the party serving the statement doescall such a witness at the trial —
(a) the Court may, on such terms as it thinks fit, direct that thestatement served, or part of it, shall stand as the evidence in chief of thewitness or part of such evidence;
(b) the party may not without the consent of the other parties orthe leave of the Court adduce evidence from that witness the substance of whichis not included in the statement served, except —
(i) where the Court’s directions under paragraph (2) or (17) specifythat statements should be exchanged in relation to only some issues of fact, inrelation to any other issues;
(ii) in relation to new matters which have arisen since the statement wasserved on the other party;
(c) whether or not the statement or any part of it referred to duringthe evidence in chief of the witness, any party may put the statement or anypart of it in cross- examination of that witness.
(8) Nothing in this rule shall make admissible evidence which is otherwise inadmissible.
(9) Where a party fails to comply with a direction for the exchange ofwitness statements he shall not be entitled to adduce evidence to which thedirection related without the leave of the Court.
(10) Where a party serves a witness statement under this rule, no otherperson may make use of that statement for any purpose other than the purpose ofthe proceedings in which it was served —
(a) unless and to the extent that the party serving it gives hisconsent in writing or the Court gives leave; or
(b) unless and to the extent that it has been put in evidence(whether pursuant to a direction under paragraph (7) (a) orotherwise).
(11) Subject to paragraph (13), the Judge shall, if any person so requestsduring the course of the trial, certify as open to inspection any witnessstatement which was ordered to stand as evidence in chief under paragraph(7) (a) .
(12) A request under paragraph (11) may be made orally or in writing.
(13) The Judge may refuse to give a direction under paragraph (11) inrelation to a witness statement, or may exclude from such a direction any words or passages in a statement, if he considers that inspectionshould not be available —
(a) in the interests of justice or national security;
(b) because of the nature of any expert medical evidence in thestatement; or
(c) for any other sufficient reason.
(14) Where a Judge certifies under paragraph (11) that a witness statementas open to inspection, he shall —
(a) prepare a certificate which shall be attached to a copy(“the certified copy”)
of that witness statement; and
(b) make the certified copy available for inspection.
(15) Subject to any conditions which the Court may by special or generaldirection impose, any person may inspect and (subject to payment of theprescribed fee) take a copy of the certified copy of a witness statement fromthe time when the certificate is given until the end of 7 days after theconclusion of the trial.
(16) In this rule —
(a) any reference in paragraphs (11) to (15) to a witness statementshall, in relation to a witness statement of which only part has been ordered tostand as evidence in chief under paragraph (7) (a) , be construed as areference to that part;
(b) any reference to inspecting or copying the certified copy of a witness statement shall be construed as including a reference toinspecting or copying a copy of that certified copy.
(17) The Court shall have power to vary or override any of the provisionsof this rule (except paragraphs (1) to (8) and (11) to (16)) and to give such alternativedirections as it thinks fit.
Evidence of particular facts. (0.38, r.3).
3. (1) Without prejudice to rule 2, the Court may, at or before thetrial of any action, order that evidence of any particular fact shall be givenat the trial in such manner as may be specified by the order.
(2) The power conferred by paragraph (1) extends in particular to orderingthat 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 commonknowledge either generally or in a particular place, by the production of aspecified newspaper which contains a statement of that fact.
Limitation of expert evidence. (0.38, r.4).
4. The Court may, at or before the trial of any action, order that thenumber of medical or other expert witnesses who may be called at the trial shallbe limited as specified by the order.
Limitation of plans etc. in evidence. (0.38, r.5).
5. Unless, at or before the trial, the Court for special reasonsotherwise orders, no plan, photograph or model shall be receivable in evidenceat the trial of an action unless at least 10 days before the commencement of thetrial the parties, other than the party producing it, have been given anopportunity to inspect it and to agree to the admission thereof without furtherproof.
Expert evidence in action arising out of accident. (0.38, r.6).
6. (1) In an action arising out of an accident on land due to acollision or apprehended collision, unless at or before the trial the Courtotherwise orders, the oral expert evidence of an engineer sought to be called onaccount of his skill and knowledge as respects motor vehicles shall not bereceivable in evidence at the trial unless a copy of a report from himcontaining the substance of his evidence has been made available to all partiesfor inspection before the hearing of the summons for directions and an ordermade on the summons for directions or an application thereunder authorises theadmission of the evidence.
(2) The references in this rule to the summons for directions includereferences to any summons or application to which, under any of these Rules,Order 25, rules 2 to 7, are to apply, whether with or without modifications.
Revocation or variation of orders under rules 2 to 6. (0.38,r.7).
7. Any order under rules 2 to 6 (including an order made on appeal)may, on sufficient cause being shown, be revoked or varied by a subsequent orderof the Court made at or before the trial.
Application to trials of issues, references etc. (0.38, r.8).
8. The foregoing rules of this Order shall apply to trials of issuesor questions of fact or law, references, inquiries and assessments of damages asthey apply to the trial of actions.
Depositions; when receivable in evidence at trial. (0.38, r.9).
9. (1) No deposition taken in any cause or matter shall be receivedin evidence at the trial of the cause or matter unless —
(a) the deposition.was taken in pursuance of an Order under Order39, rule l;
and
(b) either the party against whom the evidence is offered consentsor it is proved to the satisfaction of the Court that the deponent is dead, orbeyond the jurisdiction of the Court or unable from sickness or other infirmityto attend the trial.
(2) A party intending to use any deposition in evidence at the trial of acause or matter must, a reasonable time before the trial, give notice of hisintention to do so to the other party.
(3) A deposition purporting to be signed by the person before whom it wastaken shall be received in evidence without proof of the signature being thesignature of that person.
Court documents admissible or receivable in evidence. (0.38,r.10).
10. (1) Office copies of writs, records, pleadings and documentsfiled in the Registry shall be admissible in evidence in any cause or matter andbetween all parties to the same extent as the original would be admissible.
(2) Without prejudice to the provisions of any written law, every document purporting to be sealed with the seal of the High Court shall bereceived in evidence without further proof, and any document purporting to be sosealed and to be a copy of a document filed in, or issued out of, the High Courtshall be deemed to be an office copy of that document without further proofunless the contrary is shown.
Evidence of consent of new trustee to act. (0.38, r.11).
11. A document purporting to contain the written consent of a personto act as trustee and to bear his signature verified by some other person shallbe evidence of such consent.
Evidence at trial may be used in subsequent proceedings. (0.38,r.12).
12. Any evidence taken at the trial of any cause or matter may be usedin any subsequent proceedings in that cause or matter.
Order to produce document at proceedings other than trial. (0.38,r.13).
13. (1) At any stage in a cause or matter the Court may order anyperson to attend any proceedings in the cause or matter and produce anydocument, to be specified or described in the order, the production of whichappears 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 produceany document at a proceeding in a cause or matter which he could not becompelled to produce at the trial of that cause or matter.
Form and issue of writ of subpoena. (0.38, r.14).
14. (1) A writ of subpoena must be in Form 67, Form 68 or Form 69whichever is appropriate.
(2) Issue of a writ of subpoena takes place upon its being sealed by anofficer of the Registry.
(3) Before a writ of subpoena is issued a praecipe in Form 70 for the issueof the writ must be filed in the Registry; and the praecipe must contain thename and address of the party issuing the writ, if he is acting in person, or the name of firm andbusiness address of that party’s solicitor.
More than one name may be included in one writ of subpoena ad testificandum .
(0.38, r.15).
15. The names of two or more persons may be included in one writ ofsubpoena ad testificandum .
Writ of subpoena duces tecum . (0.38, r.16).
16. (1) A writ of subpoena duces tecum must contain the nameof one person only.
(2) Any person served with a writ of subpoena duces tecum shallsufficiently comply if he causes the document to be produced without attendingpersonally.
Amendment of writ of subpoena. (0.38, r.17).
17. Where there is a mistake in any person’s name or address ina writ of subpoena, then if the writ has not been served, the party by whom thewrit was issued may have the writ re- sealed in correct form by filing a secondpraecipe under rule 14(3) indorsed with the words “Amended and re-sealed”.
Service of writ of subpoena. (0.38, r.18).
18. (1) Unless the Court otherwise orders, a writ of subpoena must beserved personally and the service shall not be valid unless effected within 12weeks after the date of issue of the writ.
(2) A writ of subpoena shall not be served on any person outside thejurisdiction.
Duration of writ of subpoena. (0.38, r.19).
19. A writ of subpoena continues to have effect until the conclusionof the trial at which the attendance of the witness is required.
Court records. (0.38 r.20).
20. (1) An officer of the High Court or of any Subordinate Courtshall not be required by a writ of subpoena duces tecum to produce therecords of the Court.
(2) If the original of any record of a Court or of any document filed insuch court is for any special reason required, a request for production thereofmay, on the application of the party requiring the same, be addressed by theRegistrar to that Court.
(3) No mark shall be placed upon any record or document produced under thisrule.
Attendance of prisoner as witness or party. (0.38, r.21).
21. (1) An application for an order under section 32 of the PrisonsAct (Chapter 51) for the production before the Court of a person confined inprison may be made ex parte by summons supported by an affidavit in Form71.
(2) Unless the Court otherwise orders, the costs of conveyance of thewitness in safe custody to and from the Court must be paid in the first instanceby the party on whose application the order was issued and shall be costs in thecause.
(3) An order for the production of such person must be in Form 72.
Tender of expenses. (0.38, r.22).
22. A witness shall not be compelled to attend on a writ of subpoenaunless a reasonable sum to cover his expenses of going to, remaining at, andreturning from, Court is extended to him.
Affidavit of service of writ of subpoena. (0.38 r.23).
23. An affidavit filed for the purpose of proving the service of awrit of subpoena must state when, where, how and by whom the service waseffected.
PART II
HEARSAY EVIDENCE
Interpretation. (0.38, r.24). [S 77/00]
24. (1) In this Part, the “Act” means Chapter XII of theEvidence Act (Chapter 108), and any expressions used in this Part and in the Actshall have the same meaning in this Part as they have in the Act.
(2) In this Act —
“hearsay evidence” means evidence consisting of hearsay withinthe meaning of section 169(2) of the Act;
“hearsay notice” means a notice under section 170 of the Act.
(3) This Part applies in relation to the trial or hearing of an issue orquestion arising in a cause or matter and to a reference, inquiry or assessmentof damages, as it applies to the trial or hearing of a cause or matter.
Hearsay notices. (0.38, r.25). [S 77/00]
25. (1) A hearsay notice must —
(a) state that it is a hearsay notice;
(b) identify the hearsay evidence;
(c) identify the person who made the statement which is to be given in evidence;
(d) state why that person will (or may) not be called to give oralevidence; and
(e) if the hearsay evidence is contained in a witness statement, referto the part of the witness statement where it is set out.
(2) A single hearsay notice may deal with the hearsay evidence of more thanone witness.
(3) The rquirement to give a hearsay notice does not apply to —
(a) evidence which is authorised to be given by or in an affidavit;or
(b) a statement which a party to a probate action desires to givein evidence and which is alleged to have been made by the person whose estate isthe subject of the action.
(4) Subject to paragraph (5), a party who desires to give in evidence at thetrial or hearing of a cause or matter; hearsay evidence, shall —
(a) in the case of a cause or matter which is required to be setdown for trial or hearing or adjourned into Court, within 28 days after it isset down or so adjourned or within such other period as the Court may specify;and
(b) in any other case, within 28 days after the date on which anappointment for the first hearing of the cause or matter is obtained or withinsuch other period as the Court may specify,
serve a hearsay notice on every party to the cause or matter.
(5) Where witness statements are served under this Order, any hearsay noticeserved under this rule shall be served at the same time as the witnessstatements.
Cross examination on hearsay evidence. (0.38, r.26). [S77/00]
26. (1) Where a party tenders as hearsay evidence a statement made bya person but does not proposed to call the person who made the statement to giveevidence, the Court may, on application, allow another party to call and cross-examine the person who made the statement on its contents.
(2) An application under paragraph (1) shall be made on notice to all otherparties not later than 28 days after service of the hearsay notice.
(3) Where the Court allows another party to call and caross-examine theperson who made the statement, it may give such dierctions as it thinks fit tosecure the attendance of that person and as to the procedure to be followed.
Credibility. (0.38, r.27). [S 77/00]
27. (1) if —
(a) a party tenders as hearsay evidence a statement made by aperson but does not call the person who made the statement to give oralevidence; and
(b) another party wishes to attack the credibility of the personwho made the statement,
that other party shall notify the party tendering the hearsay evidence of hisintention.
(2) A notice under paragraph (1) shall be given not later than 28 days afterservice of the hearsay notice.
Jurisdiction. (0.38, r.28). [S 77/00]
28. The jurisdiction of the Court under rules 24 to 27 may beexercised in Chambers.
PART III
EXPERT EVIDENCE
Interpretation. (0.38, r.29). [S 77/00]
29. In this Part, a reference to a summons for directions includes areference to any summons or application to which any rules 2 to 7, of Order 25applies.
Restrictions on expert evidence. (0.38, r.30). [S 77/00]
30. (1) Except with the leave of the Court or where all partiesagree, no expert evidence may be adduced at the trial or hearing of any cause ormatter unless the party seeking to adduce the evidence —
(a) has applied to the Court to determine whether a directionshould be given under rule 31 or 34 (whichever is appropriate) and has compliedwith any direction given on the application; or
(b) has complied with authomatic directions taking effect underOrder 25, rule 8(1) (b) .
(2) Nothing in paragraph (1) shall apply to evidence which is permitted tobe given by affidavit or shall affect the enforcement under any other provisionof these Rules (except Order 45, rule 5) of a direction given under thisPart.
Direction that report be disclosed. (0.38, r.31). [S77/00]
31. (1) Subject to paragraph (2), where in any cause or matter anapplication is made under rule 30(1) in respect of oral expert evidence, then,unless the Court considers that there are special reasons for not doing so, itshall direct that the substance of the evidence be disclosed in the form of awritten report or reports to such other parties and within such period as theCourt may specify.
(2) Nothing in paragraph (1) shall require a party to disclose a furthermedical report if the proposes to rely at the trial on the report providedpursuant to Order 18, rule 11(1A) or
(1B) but, where a party claiming damages for personal injuries discloses afurther report, that report shall be accompanied by a statement of the specialdamages claimed and, in this paragraph, “a statement of the specialdamages claimed” has the same meaning as in Order 18, rule 11(1C).
Meeting of experts. (0.38, r.32). [S 77/00]
32. In any cause or matter the Court may, if it thinks fit, directthat there be a meeting “without prejudice” of such experts within such periods before orafter the disclosure of their reports as the Court may specify, for the purposeof identifying those parts of their evidence which are in issue. Where such ameeting takes place the experts may prepare a joint statement indicating thoseparts of their evidence on which they are, and those on which they are not, inagreement.
Disclosure of part of expert evidence. (0.38, r.33). [S77/00]
33. Where the Court considers that any circumstances rendering itundesirable to give a direction under rule 31 relate to part only of theevidence sought to be adduced, the Court may, if it thinks fit, directdisclosure of the remainder.
Expert evidence contained in statement. (0.38, r.34). [S77/00]
34. Where an application is made under rule 30 in respect of expertevidence contained in a statement and the applicant alleges that the maker ofthe statement cannot or should not be called as a witness, the Court may directthat the provisions of rule 24 to 27 shall apply with such modifications as theCourt thinks fit.
Expert report disclosed by another party. (0.38, r.35). [S77/00]
35. A party to any cause or matter may put in evidence any expertreport disclosed to him by any other party in accordance with this Part.
Time for putting expert report in evidence. (0.38, r.36). [S77/00]
36. Where a party to any cause or matter calls as a witness the makerof a report which has been disclosed in accordance with a direction given underrule 31, the report may be put in evidence at the commencement of itsmarker’s examination in chief or at such other time as the Court maydirect.
Revocation and variation of directions. (0.38, r.37). [S77/00]
37. Any direction given under this Part may on sufficient cause beingshown be revoked or varied by a subsequent direction given at or before thetrial of the cause or matter.
ORDER 39
EVIDENCE BY DEPOSITION: EXAMINERS OF THE COURT
Power to order depositions to be taken. (0.39, 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 73 forthe examination on oath before a Judge or the Registrar or some other person, atany place, of any person.
(2) An order under paragraph (1) may be made on such terms (including, in particular, terms as to the giving of discovery before theexamination takes place) as the Court thinks fit.
Where person to be examined is out of the jurisdiction. (0.39,r.2).
2. (1) Where the person in relation to whom an order under rule 1 isrequired is out of the jurisdiction, an application may be made —
(a) for an order in Form 74 under that rule for the issue of aletter of request to the judicial authorities of the country in which thatperson 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 thatcountry to be examined before a person appointed by the Court, for an order inForm 75 under that rule appointing a special examiner to take the evidence ofthat person in that country.
(2) An application may be made for the appointment as special examiner of aBrunei Darussalam consul in the country in which the evidence is to be taken or hisdeputy —
(a) if there subsists with respect to that country a CivilProcedure Convention providing for the taking of the evidence of any person inthat country for the assistance of proceedings in the High Court; or
(b) with the consent of the Minister.
Order for issue of letter of request. (0.39, r.3).
3. (1) Where an order is made under rule l for the issue of a letterof request to the judicial authorities of a country to take, or cause to betaken, the evidence of any person in that country the following provision ofthis rule shall apply.
(2) The party obtaining the order must prepare the letter of request andlodge it in the Registry, and the letter must be in Form 76 with such variations as the ordermay require.
(3) If the evidence of the person to be examined is to be obtained by meansof written questions, there must be lodged with the letter of request a copy of the interrogatories and cross-interrogatories to be put to him onexamination.
(4) Unless the official language or one of the official languages of thecountry in which the examination is to be taken is English, each document lodgedunder paragraph (2) or (3) must be accompanied by a translation of the documentin the official language of that country or, if there is more than one officiallanguage of that country, in any one of those languages which is appropriate tothe place in that country where the examination is to be taken.
(5) Every translation lodged under paragraph (4) must be certified by theperson making it to be a correct translation; and the certificate must contain astatement of that person’s full name, of his address and of hisqualifications 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 theRegistry an undertaking in Form 77 signed by him or his solicitor to beresponsible personally for all expenses incurred by the Minister in respect ofthe letter of request and, on receiving due notification of the amount of thoseexpenses, to pay that amount to the office of the said Minister and to produce areceipt for the payment to the proper officer of the Registry.
Examination not on oath. (0.39, r.3A). [S 7/99]
3A. Notwithstanding the provisions of rule 1, where the person to beexamined is out of the jurisdiction that person may be examined on oath or affirmation or otherwise in accordance with the procedure of the countryin which the examination is to take place.
Enforcing attendance of witness at examination. (0.39, r.4).
4. Where an order has been made under rule 1 —
(a) for the examination of any person before the Registrar or someother 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 whohas 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 writof subpoena in like manner as the attendance of a witness and the production bya witness of a document at a trial may be enforced.
Refusal of witness to attend, be sworn etc. (0.39, r.5).
5. (1) If any person, having been duly summoned by writ of subpoenato attend before the examiner, refuses or fails to attend or refuses tobe sworn for the purpose of the examination or to answer any lawfulquestion or produce any document therein, a certificate of his refusal orfailure, signed by the examiner, must be filed in the Registry, and upon thefiling of the certificate the party by whom the attendance of that person wasrequired may apply to the Court for an order requiring that person to attend, orto be sworn or to answer any question or produce any document, as the case maybe.
(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 personagainst whom the order is made to pay any costs occasioned by his refusal orfailure.
(4) A person who wilfully disobeys any order made against him underparagraph (1)
is guilty of contempt of Court.
Appointment of time and place for examination. (0.39, r.6).
6. (1) The examiner must give the party on whose application the order for examination was made a notice appointing the place and time atwhich, subject to any application by the parties, the examination shall betaken, and such time shall, having regard to the convenience of the persons tobe examined and all the circumstances of the case, be as soon as practicableafter the making of the order.
(2) The party to whom a notice under paragraph (1) is given must onreceiving it, forthwith give notice of the appointment to all the otherparties.
Examiner to have certain documents. (0.39, r.7).
7. The party on whose application the order for examination before theexaminer was made must furnish the examiner with copies of such of the documentsin the cause or matter as are necessary to inform the examiner of the questionsat issue in the cause or matter.
Conduct of examination. (0.39, r.8).
8. (1) Subject to any directions contained in the order forexamination —
(a) any person ordered to be examined before the examiner may becross- examined and re-examined; and
(b) the examination, cross-examination and re-examination ofpersons before the examiner shall be conducted in like manner as at the trial ofa cause or matter.
(2) The examiner may put any question to any person examined before him asto the meaning of any answer made by that person or as to any matter arising inthe cause of the examination.
(3) The examiner may, if necessary, adjourn the examination from time totime.
Examination of additional witnesses. (0.39, r.9).
9. The examiner may, with the written consent of all the parties tothe cause or matter, take the examination of any person in addition to thosenamed or provided for in the order for examination, and must annex such consentto the original deposition of that person.
Objection to questions. (0.39, r.10).
10. (1) If any person being examined before the examiner objects to answer any questions put to him, or if objection is taken to anysuch question, that question, the ground for objection and the answer to anysuch question to which objection is taken must be set out in the deposition ofthat person or in a statement annexed thereto.
(2) The validity of the ground for objecting to answer any such question orfor objecting to any such question shall be decided by the Court and not by theexaminer, but the examiner must state to the parties his opinion thereon, andthe statement of his opinion must be set out in the deposition or in a statementannexed thereto.
(3) If the Court decides against the person taking the objection it mayorder him to pay the costs occasioned by his objection.
Taking of depositions. (0.39, r.11).
11. (1) The deposition of any person examined before the examinermust be taken down by the examiner or a shorthand writer or some other person inthe presence of the examiner but, subject to paragraph (2) and rule 10(1) thedeposition need not set out every question and answer so long as it contains asnearly as may be the statement of the person examined.
(2) The examiner may direct the exact words of any particular question andthe answer thereto to be set out in the deposition if that question and answerappear to him to have special importance.
(3) The deposition of any person shall be read to him, and he shall be askedto sign it, in the presence of such of the parties as may attend, but theparties may agree in writing to dispense with the foregoing provision. If aperson 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 ofthe examiner before whom it was taken, must be sent by the examiner to theRegistry and shall be filed therein.
Time taken by examination to be indorsed on depositions. (0.39,r.12).
12. Before sending any deposition to the Registry, the examiner mustindorse on the deposition a statement signed by him of the time occupied intaking the examination and the fees to be paid in respect thereof.
Special report by examiner. (0.39, r.13).
13. The examiner may make a special report to the Court with regard toany examination taken before him and with regard to the absence or conduct ofany person thereat, and the Court may direct such proceedings to be taken, ormake such order, on the report as it thinks fit.
Order for payment of examiner’s fees. (0.39, r.14).
14. (1) If the fees and expenses due to an examiner are not paid hemay report that fact to the Court, and the Court may make an order against theparty on whose application the order for examination was made to pay theexaminer the fees and expenses due to him in respect of the examination.
(2) An order under this rule shall not prejudice any determination on thetaxation of costs or otherwise as to the party by whom the costs of theexamination are ultimately to be borne.
Perpetuation of testimony. (0.39, r.15).
15. (1) Witnesses shall not be examined to perpetuate testimonyunless an action has been begun for the purpose.
(2) Any person who would under the circumstances alleged by him to existbecome 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 personalproperty, the right or claim to which cannot be brought to trial by him before the happening of such event, may begin an action to perpetuateany testimony which may be material for establishing such right or claim.
(3) No action to perpetuate the testimony of witnesses shall be set down fortrial.
ORDER 40
COURT EXPERT
Appointment of expert to report on certain question. (0.40, r.1).
1. (1) In any cause or matter in which any question for an expertwitness 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 ormore such experts, to inquire and report upon any question of fact or opinionnot involving questions of law or 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 personagreed between the parties and, falling agreement, shall be nominated by theCourt.
(3) The question to be submitted to the court expert and the instructions(if any)
given to him shall, falling agreement between the parties, be settled by thecourt.
(4) In this rule “expert”, in relation to any question arisingin a cause or matter, means any person who has such knowledge or experience ofor in connection with that question that his opinion on it would be admissiblein evidence.
Report of court expert. (0.40, r.2).
2. (1) The court expert must send his report to the Court, togetherwith such number of copies thereof as the Court may direct, and the Registrarmust send copies of the report to the parties or their solicitors.
(2) The Court may direct the court expert to make a further or supplementalreport.
(3) Any part of a court expert’s report which is not accepted by allthe parties to the cause or matter in which it is made shall be treated asinformation furnished to the Court and be given such weight as the Court thinksfit.
Experiments and tests. (0.40, r.3).
3. If the court expert is of opinion that an experiment or test of anykind (other than one of a trifling character) is necessary to enable him to makea satisfactory report he shall inform the parties or their solicitors and shall,if possible, make an arrangement with them as to the expenses involved, theperson to attend and other relevant matters; and if the parties are unable toagree on any of those matters it shall he settled by the Court.
Cross-examination of court expert. (0.40 r.4).
4. Any party may, within 14 days after receiving a copy of the courtexpert’s report, apply to the Court for leave to cross-examine the experton his report, and on that application the Court shall make an order for thecross-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 specifiedin the order.
Remuneration of court expert. (0.40, r.5).
5. (1) The remuneration of the court expert shall be fixed by theCourt and shall include a fee for his report and a proper sum for each dayduring which he is required to be present either in Court or before anexaminer.
(2) Without prejudice to any order providing for payment of the courtexpert’s remuneration as part of the costs of the cause or matter, theparties shall be jointly and severally liable to pay the amount fixed by theCourt for his remuneration, but where the appointment of a court expert isopposed the Court may, as a condition of making the appointment, require the party applying for the appointment to give suchsecurity for the remuneration of the expert as the Court think fit.
Calling of expert witnesses. (0.40, r.6).
6. Where a court expert is appointed in a cause or matter, any partymay, on giving to the other parties a reasonable time before the trial notice ofhis intention to do so, call one expert witness to give evidence on the questionreported on by the court expert but no party may call more than one such witnesswithout the leave of the Court, and the Court shall not grant leave unless itconsiders the circumstances of the case to be exceptional.
ORDER 41
AFFIDAVITS
Form of affidavit. (0.41, r.1).
1. (1) Subject to paragraphs (2) and (3) every affidavit sworn in acause 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 besufficient to state the first matter followed by the words “and othermatters”, and where a cause or matter is entitled in a matter or mattersand between parties, that part of the title which consists of the matter ormatters may be omitted.
(3) Where there are more plaintiffs than one, it shall be sufficient tostate 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 must state theplace of residence of the deponent and his occupation or, if he has none, hisdescription, and if he is, or is employed by, a party to the cause or matter inwhich the affidavit is sworn, the affidavit must state that fact.
(5) Every affidavit must be divided into paragraphs numbered consecutively,each paragraph being as far as possible confined to a distinct portion of thesubject.
(6) Dates, sums and other numbers must be expressed in an affidavit infigures and not in words.
(7) Every affidavit must be signed by the deponent and the jurat must becompleted and signed by the person before whom it is sworn.
(8) A jurat must be in one of the forms in Form 78.
Affidavit by two or more deponents. (0.41, r.2).
2. (1) Where an affidavit is made by two or more deponents, the namesof 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 thesame person, it shall be sufficient to state that it was sworn by both (or all)of the “abovenamed” deponents.
(2) When the oath is administered to deponents in different languages, thereshall be a separate jurat for those sworn in each language.
Affidavit by illiterate or blind person. (0.41, r.3).
3. Where it appears to the person administering the oath that thedeponent 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 certificateunless the Court is otherwise satisfied that it was read to and appeared to beperfectly understood by the deponent.
Use of defective affidavit. (0.41, 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. (0.41, r.5).
5. (1) Subject to Order 14, rules 2(2) and 4(2), to paragraph (2) ofthis rule and to any order made under Order 38, rule 3, an affidavit may containonly such facts as the deponent is able of his own knowledge to prove.
(2) An affidavit sworn for the purpose of being used in interlocutoryproceedings may contain statements of information or belief with the sources andgrounds thereof.
Scandalous etc. matter in affidavits. (0.41, r.6).
6. The Court may order to be struck out of any affidavit any matterwhich is scandalous, irrelevant or otherwise oppressive.
Alterations in affidavits. (0.41, r.7).
7. (1) An affidavit which has in the jurat or body thereof anyinterlineation, erasure or other alteration shall not be filed or used in anyproceeding without the leave of the Court unless the person before whom theaffidavit was sworn has initialled the alteration and, in the case of an erasure, has re-written in the margin of the affidavit anywords or figures written on the erasure and has signed or initialled them.
(2) No alteration shall be made in any affidavit after it has been filed,but, before an affidavit is filed alterations may be made therein and theaffidavit must be re-sworn with a further jurat commencing with the word“re-sworn”, added.
Affidavit not to be sworn before solicitor of party etc. (0.41,r.8).
8. No affidavit shall be sufficient if sworn before the solicitor ofthe party on whose behalf the affidavit is to be used or before any member ofthe firm of that solicitor.
Filing of affidavits. (0.41, r.9).
9. (1) Except as otherwise provided by these Rules, every affidavitmust be filed in the Registry.
(2) Every affidavit must be indorsed with a note showing on whose behalf itis filed and the dates of swearing and filing, and an affidavit which is not soindorsed may not be filed or used without the leave of the Court.
Use of original affidavit or office copy. (0.41, r.10).
10. (1) Subject to paragraph (2) an original affidavit may be used inproceedings with the leave of the Court, notwithstanding that it has not beenfiled in accordance with rule 9.
(2) An original affidavit may not be used in any proceedings unless it haspreviously been stamped with the appropriate fee.
(3) Where an original affidavit is used then, unless the party whoseaffidavit it is undertakes to file it, he must immediately after it is used fileit with the proper officer in the Registry.
(4) Where an affidavit has been filed, an office copy thereof may be used inany proceedings.
Document to be used in conjunction with affidavit to be exhibited to it. (0.41, r.11).
11. (1) Any document to be used in conjunction with an affidavit mustbe exhibited and a copy thereof annexed to the affidavit.
(2) Any exhibit to an affidavit must be identified by a certificate of theperson before whom the affidavit is sworn.
The certificate must be entitled in the same manner as the affidavit and rule1(1), (2) and
(3) shall apply accordingly.
Affidavit taken outside Brunei Darussalam admissible without proof of sealetc. (0.41, r.12).
12. A document purporting to have affixed or impressed thereon orsubscribed thereto the seal or signature of a court, judge, notary public orperson having authority to administer oaths in a Commonwealth country and in thecase of any other country the seal or signature of a consular officer of aCommonwealth country in testimony of an affidavit being taken before it or himshall be admitted in evidence without proof of the seal or signature being theseal or signature of that court, judge, notary public or person.
ORDER 42
JUDGMENTS AND ORDERS
Delivery of judgment. (0.42, r.1).
1. (1) Subject to paragraph (2) every judgment after the hearing of acause or matter shall be delivered in open Court or in Chambers, either on thcconclusion of the hearing or on a subsequent day of which notice shall be givento the parties.
[S 35/92]
(2) Notwithstanding paragraph (1), a Judge who has tried any proceedings maygive judgment, and his reasons therefor, in writing at a later date, by sendinga copy thereof to all parties to the proceeding.
[S 35/92; S 8/99]
Written judgment to be filed. (0.42, r.2).
2. Whenever the Court delivers a written judgment, the original or acopy thereof, signed by the Judge must be filed.
Judgment of absent Judge. (0.42, r.3).
3. When a Judge who has tried any proceedings is absent from BruneiDarussalam or is unable through death, illness or other cause to pronouncejudgment, the judgment written by him may be read by any other Judge or by theRegistrar.
Entry of judgment in Cause Book. (0.42, r.4).
4. The proper officer in the Registry must enter in the cause book aminute of every judgment or final order given or made by the Court.
Form of judgment etc. (0.42, r.5).
5. (1) If, in the case of any judgment, a form thereof is prescribedin Form 79 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 the writ or otheroriginating process by which the cause or matter in question was begun wasserved.
(3) An order must be marked with the name of the Judge or the Registrar bywhom it was made and must be sealed.
Judgment etc. requiring act to be done: Time for doing it. (0.42,r.6).
6. (1) Subject to paragraph (2), a judgment or order which requires aperson to do an act must specify the time after service of the judgment ororder, 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 todo is to pay money to some other person, give possession of any immovableproperty or deliver any movable property, a time within which the act is to bedone 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 specifysuch a time and to adjudge or order accordingly.
Date from which judgment or order takes effect. (0.42, r.7).
7. (1) A judgment or order of the Court takes effect from the day ofits date.
(2) Such a judgment or order shall be dated as of the day on which it ispronounced, given or made, unless the Court orders it to be dated as of someother earlier or later day, in which case it shall be dated as of that otherday.
Preparation of judgment or order. (0.42, r.8).
8. (1) Where the party in whose favour a judgment or order is given or made is represented by a solicitor, a copy of the draft shall besubmitted for approval to the solicitor (if any) of the other party who shall within 2 days of the receipt thereof,or within such further time as may in any case be allowed by the Registrar,return such copy with his signed consent or any required amendments thereto.
(2) When the solicitor omits to return the copy of the draft within the time prescribed, he shall be deemed to have consented to the termsthereof.
(3) In any case where the solicitors concerned are unable to agree upon thedraft, any one of them may obtain an appointment before the Registrar, of whichnotice shall be given to the other, to settle the terms of the judgment ororder.
(4) Every judgment or order shall be settled by the Registrar but in thecase of a judgment or order made by a Judge, any party may require the matter indispute to be referred to the Judge for his determination.
(5) Where the other party has no solicitor, the draft shall be submitted to the Registrar.
Orders required to be drawn up. (0.42, r.9).
9. (1) Subject to paragraph (2), every order of the Court shall bedrawn up unless the Court otherwise directs.
(2) An order —
(a) which —
(i) extends the period within which a person is required orauthorised by these Rules, or by any judgment, order or direction, to do anyact; or
(ii) grants leave for the doing of any of the acts mentioned inparagraph (3); and
(b) which neither imposes any special terms nor includes anyspecial 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 notice ofwhich is required for service out of the jurisdiction;
(b) the amendment of a writ of summons or other originating processor a pleading;
(c) the filing of any document;
(d) any act to be done by an officer of the Court other than asolicitor.
Drawing up and entry of judgments and orders. (0.42, r.10).
10. (1) Where a judgment given in a cause or matter is presented forentry in accordance with this rule at the Registry, it shall be entered by anofficer of the Registry in the book kept fro the purpose.
(2) The party seeking to have such a judgment entered must drawn up thejudgment and present it to the proper officer of the Registry for entry.
(3) On entering any such a judgment the proper officer shall file thejudgment and return a duplicate thereof to the party who presented it forentry.
(4) Every order required to be drawn up must be drawn up by the party inwhose favour the order has been made and if that party fails to draw up theorder within 7 days after it is made any other party affected by the order maydraw it up.
(5) The order referred to in paragraph (4) must, when drawn up, be producedat the Registry, together with a copy thereof, and when passed by the properofficer the order, sealed with the seal of the High Court, shall be returned tothe party producing it and the copy shall be lodged in the Registry.
Duplicates of judgments and orders. (0.42, r.11).
11. (1) Not less than one clear day after a judgment or order hasbeen filed a duplicate thereof shall be supplied on payment of the prescribedfee out of the Registry to any party in the proceedings.
(2) The duplicate of a judgment or order may be a carbon copy of theoriginal except that if the Registrar so directs, the duplicate of everyjudgment or order of such class as he directs, shall be a photographic copy or acopy produced by type lithography or other similar process.
(3) Before a duplicate of a judgment or order is issued it must be sealedand there must be noted thereon the number of the judgment, the date of entryand the amount of any stamp on the original.
(4) Where by any of these Rules or any order of the Court the originaljudgment or order is required to be produced or served it shall be sufficient toproduce or serve the duplicate.
(5) A further duplicate of a judgment or order may, on payment of theprescribed fee, be issued if the Registrar is satisfied that the duplicate hasbeen lost and that the applicant for a further duplicate is entitled to it.
(6) A judgment or order shall not be amended except on production of theduplicate thereof last issued, and if the judgment or order is amended theduplicate so issued shall be similarly amended, and the amendment sealed, underthe direction of the Registrar.
Interest on judgment debts. (0.42, r.12).
12. Except when it has been otherwise agreed between the parties,every judgment debt shall carry interest at the rate of 6 per centum per annumor at such other rate as the Chief Justice may from time to time direct, suchinterest to be calculated from the date of judgment until the judgment issatisfied.
[S 8/99]
Interest on debts and damages. (0.42, r.13). [S 28/96]
13. (1) In any proceedings before the Court for the recovery of anydebt or damages, the Court may, if it thinks fit, order that there shall beincluded in the sum for which judgment is given interest at such rate as itthinks fit on the whole or any part of the debt or damages for thc whole or anypart of the period between the date when the cause of action arose and the dateof the judgment.
(2) Nothing in paragraph (1) shall —
(a) authorise the awarding of interest upon interest;
(b) apply in relation to any debt upon which interest is payable asof right;
whether by virtue of any agreement or otherwise; or
(c) affect the damages recoverable for the dishonour of a bill ofexchange.
(3) In relation to a judgment given in respect of damages for personalinjuries (as defined in section 20(3) of the Emergency (Fatal Accident andPersonal Injuries) Order,
1991) or in respect of a person’s death, which exceed $10,000,paragraph (1) shall have effect —
(a) with the substitution of “shall” for “may, ifit thinks fit”; and
(b) with the addition of, “unless the court is satisfied thatthere are special reason to the contrary”, immediately after“given”.
(4) Interest may be awarded under paragraph (1) in thc case of any sum paidbefore judgment, only to the date of the payment.
(5) Interest awarded under paragraph (1) may be calculated at differentrates in respect of different periods.
ORDER 43
ACCOUNTS AND INQUIRIES
Summary order for account. (0.43, r.1).
1. (1) Where a writ is indorsed with a claim for an account or aclaim which necessarily involves taking an account, the plaintiff may, at anytime after the defendant has entered an appearance or after the time limited forappearing, apply for an order under this rule.
(2) An application under this rule must be made by summons and, if the Courtso directs, must be supported by affidavit or other evidence.
(3) On the hearing of the application, the Court may, unless satisfied by the defendant by affidavit or otherwise that there is somepreliminary question to be tried, order that an account be taken and may alsoorder that any amount certified on taking the account to be due to either partybe paid to him within a time specified in the order.
Court may direct taking of accounts etc. (0.43, 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 necessaryaccounts or inquiries to be taken or made in Form 80.
(2) Every direction for the taking of an account or the making of an inquiryshall be numbered in the judgment or order so that, as far as may be, eachdistinct account and inquiry may be designated by a number.
Directions as to manner of taking account. (0.43, r.3).
3. (1) Where the Court orders an account to be taken it mayby the same or a subsequent order give directions with regard to the mannerin which the account is to be taken or vouched.
(2) Without prejudice to the generality to paragraph (1), the Court maydirect that in taking the account the relevant books of account shall beevidence of the matters contained therein with liberty to the parties interestedto take such objections thereto as they think fit.
Account to be made verified etc. (0.43, r.4).
4. (1) Where an account has been ordered to be taken, the accountingparty must make out his account and, unless the Court otherwise directs, verifyit by an affidavit to which the account must be exhibited.
(2) The items on each side of the account must be numberedconsecutively.
(3) Unless the order for the taking of the account otherwise directs, theaccounting party must lodge the account with the Registry and must at the sametime notify the other parties that he has done so and of the filing of anyaffidavit verifying the account and of any supporting affidavit.
Notice to be given of alleged commissions etc. in account. (0.43,r.5).
5. Any party who seeks to charge an accounting party with an amountbeyond that which he has by his account admitted to have received or who allegesthat any item in his account is erroneous in respect of amount or in any otherrespect must give him notice thereof stating, so far as he is able, the amountsought to be charged, with brief particulars thereof or, as the case may be, thegrounds for alleging that the item is erroneous.
Allowances. (0.43, r.6).
6. In taking any account directed by any judgment or order all justallowances shall be made without any direction to that effect.
Delay in prosecution of accounts etc. (0.43, r.7).
7. (1) If it appears to the Court that there is undue delay in theprosecution of any accounts or inquiries, or in any other proceedings under anyjudgment or order, the Court may require the party having the conduct of theproceedings or any other party to explain the delay and may then make such orderfor staying the proceedings or for expediting them or for the conduct thereofand for costs as the circumstances require.
Distribution of fund before all persons entitled are ascertained. (0.43,r.8).
8. Where some of the persons entitled to share in a fund areascertained, and difficulty or delay has occurred or is likely to occur inascertaining the other persons so entitled, the Court may order or allow immediate payment of their shares to the personsascertained without reserving any part of those shares to meet the subsequentcosts of ascertaining those other persons.
ORDER 44
PROCEEDINGS UNDER JUDGMENTS AND ORDERS ON THE EQUITY SIDE
Application to proceedings under an order. (0.44, r.1).
1. This Order shall, with the necessary modifications, apply inrelation to proceedings under an order as it applies in relation to proceedingsunder a judgment and, accordingly, references therein to a judgment shall beconstrued as including references to an order.
Documents to be filed at registry: Summons to proceed. (0.44,r.2).
2. (1) Where in order to carry out any directions contained in ajudgment given in a cause or matter it is necessary to proceed in Chambers underthe judgment, the party entitled to prosecute the judgment must, within 10 daysafter entry of the judgment, take out a summons to proceed under thejudgment.
(2) If the party entitled to prosecute the judgment fails to comply withparagraph (1), any other party to the cause or matter shall, unless the Courtotherwise directs, become entitled to prosecute the judgment.
(3) The party entitled to prosecute the judgment must take out a summons toproceed under the judgment.
Service of notice of judgment on person not a party. (0.44, r.3).
3. (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 which affects the rights or interests of personsnot parties to the action or directs any account to be taken or inquiry made,the Court may when giving the judgment or at any stage of the proceedingsunder the judgment direct notice of the judgment to be served on anyperson interested in the estate or under the trust or in the property, as thecase may be; and any person duly served with notice of a judgment in accordancewith this rule shall, subject to paragraph (5), be bound by the judgment to thesame extent as he would have been if he had originally be made a party to theaction.
(2) The Court may direct a notice of judgment to be served personally or insuch manner as it may specify on the person required to be served, or if itappears to the Court that it is impracticable for any reason to serve suchnotice on any person it may dispense with service of the notice on thatperson.
Before notice of a judgment is served the notice must be indorsed with amemorandum in Form 81.
(3) Where no appearance has been entered by a person served with notice ofthe judgment the party prosecuting the judgment must file a certificate in theRegistry to that effect.
(4) Where the Court dispenses with service of notice of a judgment on anyperson, it may also order that that person shall be bound by the judgment to thesame extent as if he had been served with notice thereof, and he shall be boundaccordingly, except where the judgment has been obtained by fraud ornon-disclosure of material facts.
(5) A person served with notice of a judgment may, within one month afterservice of the notice on him, and without entering an appearance, apply to theCourt to discharge, vary or add to the judgment.
(6) A person served with notice of a judgment may, after entering anappearance to the notice, attend the proceedings under the judgment.
(7) Order 12, rules 1 to 3, shall apply in relation to the entry ofappearance to a notice of judgment as if the judgment were a writ, and theperson by whom the notice is served were the plaintiff and the person on whom itis served a defendant.
Directions by Court. (0.44, r.4).
4. (1) The Court hearing the summons to proceed shall give directionswith respect to the proceedings to be taken under the judgment and the conductthereof, including, in particular, directions with respect to —
(a) the manner in which any account or enquiry is to beprosecuted;
(b) the evidence to be adduced in support thereof;
(c) the parties required to attend all or any part of the proceedings;and
(d) 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.
Court may require parties to be represented by same solicitor. (0.44,r.5).
5. Where on the hearing of the summons to proceed or at any stage ofthe proceedings under the judgment it appears to the Court that the interests ofthe parties can be classified, it may require the parties constituting each orany class to be represented by the same solicitor,
and where the parties constituting any class cannot agree on the solicitor torepresent them, the Court may nominate a solicitor to represent the class in theproceedings.
Court may require parties to be represented by different solicitors. (0.44, r.6).
6. Where on the hearing of the summons to proceed or at any stage ofthe proceedings under the judgment it appears to the Court that two ormore of the parties who are represented by the same solicitor ought to beseparately represented, it may require them to be so represented and may adjournthe proceedings until they are.
Leave to attend proceedings etc. (0.44, r.7).
7. Any party to the proceedings under the judgment who has not beendirected to attend may apply to the Court for leave to attend any part of theproceedings at the cost of the estate or other property to which the proceedingsrelate and to have the conduct of that part either in addition to or insubstitution for any other party.
Judgment requiring deed to be settled by Court: Directions. (0.44,r.8).
8. Where the judgment directs any deed or other instrument to besettled by the Judge in Chambers, or to be settled by him if the parties to thedeed fail to agree to it, the Court hearing the summons to proceed under thejudgment shall direct —
(a) that within such period as it may specify the party entitled toprepare a draft of the deed must serve a copy of the draft on every other partywho will be a party to the deed; and
(b) that within 8 days, or such other period, if any, as it mayspecify, after service on any such other party of a copy of the draft that partymust serve on the party by whom the draft was prepared a written statement ofhis objections (if any) to the draft.
Application of rules 10 to 17. (0.44, r.9).
9. Rules 10 to 17 apply —
(a) where in proceedings for the administration under the directionof the Court of the estate of a deceased person the judgment directs any accountof debts or other liabilities of the deceased’s estate to be taken or anyinquiry for next of kin or other unascertained claimants to be made; and
(b) where in proceedings for the execution under the direction ofthe Court of a trust the judgment directs any such inquiry to be made,
and those rules shall, with the necessary modifications, apply wherein any other proceedings the judgment directs any account of debts or otherliabilities to be taken or any inquiry to be made.
Advertisements for creditors and other claimants. (0.44, r.10).
10. (1) On the hearing of the summons to proceed the Court may directthe issue of advertisements for creditors in Form 82 or other claimants in Form83 and in deciding whether to do so shall have regard to any advertismentpreviously issued by the personal representatives or trustees concerned.
(2) Every such advertisement shall be prepared by the party prosecuting the judgment, and —
(a) in the case of an advertisement for creditors, shall be signedby that party’s solicitor or, if he has no solicitor, by the Registrar;and
(b) in the case of an advertisement for other claimants, shall besubmitted to the Registrar and if approved by the Registrar shall be signed by him.
(3) The Court shall fix the time within which, and the person to whom, anyclaimant is to send his name and address and particulars of his claim, and thattime and the name and address of that person shall be stated in theadvertisement.
Failure to claim within specified time. (0.44, r.11).
11. A claimant who fails to send full particulars of his claim to theperson named in any advertisement directed by the Court within the time thereinspecified shall not be entitled to prove his claim except with the leave of theCourt, and in granting leave the Court may impose such terms as to costs andotherwise as it thinks just.
Examination etc. of claims. (0.44, r.12).
12. (1) Where an account of debts or other liabilities of the estateof a deceased person has been directed, such party as the Court may direct must—
(a) examine the claims of persons claiming to be creditors of theestate and determine, so far as he is able, to which of such claims the estateis liable; and
(b) at least 7 clear days before the time appointed foradjudicating on claims, make an affidavit in Form 84 verifying lists of—
(i) claims sent in pursuance of any advertisement;
(ii) claims which have been received by any ofthe personal representatives otherwise than in pursuance of an advertisement;and
(iii) debts of the deceased at the time of his death in respect of which noclaim has been received but which are or may still be due and which have come tothe knowledge of any of the personal representatives.
(2) Where an inquiry for next of kin or other unascertained claimants hasbeen directed, such party as the Court may direct must —
(a) examine the claims and determine, so far as he is able, whichof them are valid claims; and
(b) at least 7 clears days before the time appointed foradjudicating on claims, make an affidavit in Form 85 verifying lists of—
(i) claims sent in pursuance of any advertisement; and
(ii) claims received by any of the personal representatives or trusteesconcerned, otherwise than in pursuance of an advertisement, or whichhave come to his knowledge.
(3) The affidavit required by paragraph (1) or (2) must, as thecircumstances of the case require, specify, in relation to the claims ofcreditors, the claims and debts which in the belief of the deponent areliabilities of the estate of the deceased and ought to be allowed, in whole orin part, and, in relation to the claims of persons other than creditors, theclaims which in the belief of the deponent are valid claims, with, in eithercase, the reasons for such belief.
(4) If the personal representatives or trustees concerned are not theparties directed by the Court to examine claims, they must join with the partydirected to examine them in making the affidavit required by this rule.
Adjudication on claims. (0.44, r.13).
13. (1) The Court adjudicating on the claims —
(a) may allow any such claim after or without proof thereof;
(b) may direct any such claim to be investigated in such manner asit thinks fit;
(c) may require any claimant to attend and prove his claim or tofurnish further particulars or evidence of it.
(2) Where the Court exercises the power conferred by paragraph (1) (c) in relation to any claimant, such party as the Court may direct must serveon that claimant a notice requiring him —
(a) to file an affidavit in support of his claim within such time,not being less than 7 days after service of the notice, as may be specified inthe notice and to attend before the Court for adjudication on the claim at suchtime as may be so specified; or
(b) to produce to the Court at such time as may be so specifiedsuch documents in support of his claim as may be so specified or described.
(3) Where a claimant fails to comply with a notice served on him underparagraph (2) his claim may be disallowed.
(4) A claimant who files an affidavit in compliance with a notice served onhim under paragraph (2) must serve notice of the filing on the party by whom thefirst mentioned notice was served and unless the Court otherwise directs, that party mustproduce an office copy of the affidavit at the adjudication of the claim.
(5) No person claiming to be a creditor need make an affidavit or attend insupport of his claim, except for the purpose of producing any documents which heis required to produce, unless served with a notice under paragraph2 (a) .
(6) If the Court so directs, a person claiming to be a secured creditor mustproduce his security to the Registrar.
(7) In this rule references to a claim include references to part of aclaim.
Adjournment of adjudication. (0.44, r.14).
14. Where on the day appointed for adjudication of claims any claim isnot then disposed of, the adjudication shall be adjourned to a day appointed bythe Court, and the Court may fix the time within which any evidence in supportof or in opposition to the claim is to be filed.
Service of notice of judgment on certain claimants. (0.44, r.15).
15. (1) Where a claimant other than a creditor has established hisclaim, then, unless he is a party to the cause or matter or has previously beenserved with notice of the judgment or the Court otherwise directs, the partyhaving the conduct of the cause or matter must serve notice of the judgment onhim.
(2) A person duly served with notice of a judgment under this rule shall,subject to rule 3(5), as applied by paragraph (4), be bound by the judgment tothe same extent as he would have been if he had originally been made a party tothe action.
(3) Where the Court directs under paragraph (1) that notice of a judgmentshall not be served on a person, it may also order that that person shall bebound by the judgment to the same extent as if he had been served with notice thereof, and he shall be bound accordingly except where thejudgment has been obtained by fraud or non-disclosure of material facts.
(4) Rule 3(5), (6) and (7) shall apply in relation to a person served withnotice of a judgment under this rule as they apply in relation to a personserved with notice of a judgment under that rule.
Notice etc. of claims allowed. (0.44, r.16).
16. (1) Such party as the Court may direct must serve on everycreditor whose claim or any part thereof has been allowed or disallowed and whodid not attend when the claim was disposed of a notice informing him of thatfact.
(2) Such party, if any, as the Court may direct must make out a list of thecreditors’
claims, and a list of any other claims, allowed and file it at theRegistry.
Service of notices. (0.44, r.17).
17. For the purpose of Order 62, rule 6, in its application to theservice of any notice under this Order on a claimant, the proper address of aclaimant shall be the address stated in his claim, or if a solicitor is actingfor him in connection with the claim, the business address of thatsolicitor.
Interest on debts. (0.44, r.18).
18. (1) Where an account of the debts of a deceased person isdirected by any judgment, then, unless the deceased’s estate isinsolventor the Court otherwise orders, interest shall be allowed —
(a) on any such debt as carries interest, at the rate it carries;and
(b) on any other debt, at the rate of 6% per annum from the date of the judgment.
(2) A creditor who has established his debt in proceedings under thejudgment and whose debt does not carry interest shall be entitled to interest onhis debt at the rate of 6% per annum from the date of the judgment out of anyassets which may remain after satisfying the costs of the cause or matter, thedebts which have been established and the interest on such of those debts as bylaw carry interest.
Interest on legacies. (0.44, r.19).
19. Where an account of legacies is directed by any judgment, then,subject to any directions contained in the will or codicil in question and toany order made by the Court, interest be allowed on each legacy at the rate of6% per annum beginning at the expiration of one year after the testator’sdeath.
Determination by judge of question arising before Registrar. (0.44,r.20).
20. (1) Any party may, before the proceedings before the Registrarunder any judgment are concluded, apply to the Judge for the determination ofany question arising in the course of the proceedings.
Unless the Court otherwise directs, a fresh summons shall not be issued forthe purpose of an application under this paragraph.
(2) It shall not be necessary to draw up the order or directions made orgiven by the Judge on the determination of such question, except in the event ofan appeal to the Court of Appeal, but the Registrar shall refer to such order ordirections in his certificate under rule 21.
Registrar’s certificate. (0.44, r.21).
21. (1) The result of proceedings before the Registrar under ajudgment shall be stated in the form of a certificate in Form 86 signed by theRegistrar.
(2) Such certificate shall refer to so much of the judgment, to suchdocuments or parts thereof and to such of the evidence as will make it clearupon what the result stated in the certificate is founded but shall not, unlessthe circumstances of the case render it necessary, set out the judgment or anydocuments, evidence or reasons.
(3) Where the judgment requires the taking of any account, the certificatemust refer to the account verified by filed affidavit and must specify byreference to the numbered items in the account which, if any, of such items havebeen disallowed or varied and the additions, if any, which have been made by wayof surcharge or otherwise.
(4) Where by reason of the alterations made in the account verified by filedaffidavit the Court has directed a fresh account incorporating the alterationsto be made, the reference in paragraph (3) to the account so verified shall beconstrued as a reference to the fresh account.
Settling and filing of Registrar’s certificate. (0.44,r.22).
22. (1) A draft of the Registrar’s certificate shall be drawn up by a party to the proceedings as directed by the Registrar andthe draft shall be settled by the parties before the Registrar on such day asthe Registrar may appoint.
(2) The certificate signed by the Registrar and any account referred totherein shall be filed in the Registry.
Discharge or variation of Registrar’s certificate. (0.44,r.23).
23. (1) Any party to proceedings under a judgment may, not later than—
(a) 8 clear days after the filing of the Registrar’scertificate therein; or
(b) if the certificate is to be acted upon by the Treasury withoutfurther order or is a certificate passing a receiver's account, 2 clear daysafter the filing thereof,
apply by summons for an order of the Judge in person discharging or varyingthe certificate.
A copy of any summons to discharge or vary a certificate which is to be actedupon by the Treasury without further order must be served on the Treasury assoon as practicable after the issue thereof.
(2) Subject to paragraph (3) any such certificate shall, on the expirationof the period specified in relation to it in paragraph (1) become binding on theparties to the proceedings unless discharged or varied by order under paragraph(1).
(3) The Judge in person may, in special circumstances, by order discharge orvary the certificate of the Registrar notwithstanding that the certificate hasbecome binding on the parties.
An application for an order under this paragraph may be by summons.
Further consideration of cause or matter in Chambers. (0.44,r.24).
24. (1) Where a Registrar’s certificate has been filed in anycause or matter, then, if —
(a) the cause or matter in which it was filed is a debentureholders’ action or the judgment to be made in the cause or matter in which it was filed is for the distribution of an insolvent estate orfor the distribution of the estate of a person who died intestate; or
(b) the order on which the certificate was made in Chambers and nodirection has been given that the cause or matter be adjourned for furtherconsideration in Court; or
(c) an order has been made directing that the cause or matter beadjourned for further consideration in Chambers,
a summons for the further consideration of the cause or matter may be issued—
(i) after the expiration of 8 clear days, and before the expiration of 14days, from the filing of the Registrar’s certificate, by the plaintiff orparty having the conduct of the proceedings; or
(ii) after the expiration of the said 14 days, by any party.
(2) There shall be at least 6 days between the service of a summons underthis rule and the day named therein for the further consideration of the causeor matter.
Further consideration of cause or matter in court. (0.44, r.25).
25. (1) Where a Registrar’s certificate has been filed in anycause or matter, then, if —
(a) the judgment on which the certificate was made was given inCourt and the cause or matter is not such as is mentioned in rule24(1) (a) and no direction has been given that it be adjourned for furtherconsideration in Chambers; or
(b) an order has been made directing that the cause or matter beadjourned for further consideration in Court,
the cause or matter may be set down by the Registrar in the cause book for further consideration —
(i) after the expiration of 8 clear days, and before the expiration of 14days, from the filing of the Registrar’s certificate, on the writtenrequest of the plaintiff or party having the conduct of theproceedings; or
(ii) after the expiration of the said 14 days, on the written request ofany party,
upon the production, in either case, of the judgment adjourning the cause ormatter for further consideration, or an office copy thereof, and an office copy of the Registrar’s certificate or a memorandum of the date of filing of the certificate,indorsed on request by the proper office on the judgment or office copythereof.
When a cause or matter is so set down, a copy of the writ or otheroriginating process by which the cause or matter was begun, a copy of thepleadings (if any) and two copies of minutes of the judgment sought must also beleft with the proper officer.
(2) A cause or matter so set down shall not be put into the list for further consideration until after the expiration of 10 days from theday on which it was so set down, and shall be marked in the cause bookaccordingly, and notice of the setting down and of the day marked in the causebook as the day before which the cause or matter is not to be put in the listfor further consideration must be given to the other parties to the cause ormatter at least 6 days before that day.
ORDER 45
ENFORCEMENT OF JUDGMENTS AND ORDERS
Enforcement of judgment etc. for payment of money. (0.45, r.1).
1. (1) Subject to the provisions of these Rules, a judgment or orderfor the payment of money, not being a judgment or order for the payment of moneyinto Court, may be enforced by one or more of the following means, that is tosay —
(a) writ of seizure and sale;
(b) garnishee proceedings;
(c) a charging order;
(d) the appointment of a receiver;
(e) in a case in which rule 5 applies, an order of committal.
(2) Subject to the provisions of these Rules, a judgment or order for thepayment of money into Court may be enforced by one or more of the followingmeans, that is to say —
(a) the appointment of a receiver;
(b) in a case in which rule 5 applies, an order of committal.
(3) Paragraphs (1) and (2) are without prejudice to any other remedyavailable to enforce such a judgment or order as is therein mentioned or to thewritten law relating to bankruptcy or the winding up of companies.
Judgment etc. for payment of money to person resident outside the scheduled territories. (0.45, r.2).
2. (1) Where any person is directed by any judgment, order or awardto pay any money to or for the credit of a person who is resident outside thescheduled territories, he must,
unless the Controller has given permission for the payment under the ExchangeControl Act (Chapter 141), unconditionally or upon conditions which have been compliedwith, pay the money into Court.
(2) Payment into Court under paragraph (1) shall, to the extent of theamount paid in, be a good discharge to the person making the payment, and nosteps may be taken to enforce the judgment, order or award to the extent of thatamount.
(3) Notice of a payment into Court under this rule must be given to theplaintiff or his solicitor and to any other person required by the judgment,order or award to be given notice of such payment.
Enforcement of judgment for possession of immovable property. (0.45,r.3).
3. (1) Subject to the provisions of these Rules, a judgment or orderfor the giving of possession of immovable property may be enforced by one ormore of the following means, that is to say —
(a) writ of possession;
(b) in a case in which rule 5 applies, an order of committal.
(2) A writ of possession to enforce a judgment or order for the giving ofpossession of any immovable property shall not be issued without the leave ofthe Court except where the judgment or order was given or made in a chargeaction to which Order 79 applies.
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(3) Such leave shall not be granted unless it is shown that every person inactual possession of the whole or any part of the immovable property hasreceived such notice of the proceedings as appears to the Court sufficient toenable him to apply to the Court for any relief to which he may be entitled.
(4) A writ of possession may include provision for enforcing the payment ofany money adjudged or ordered to be paid by the judgment or order which is to beenforced by the writ.
Enforcement of judgment for delivery of movable property. (0.45,r.4).
4. (1) Subject to the provisions of these Rules, a judgment or orderfor the delivery of any movable property which does not give a person againstwhom the judgment is given or order made the alternative of paying the assessedvalue of the property may be enforced by one or more of the following means,that is to say —
(a) writ of delivery to recover the property without alter-nativeprovision for recovery of the assessed value thereof (here-after in this rulereferred to as “writ of specific delivery”);
(b) in a case in which rule 5 applies, an order of committal.
(2) Subject to the provisions of these Rules, a judgment or order for thedelivery of any movable property or payment of their assessed value may beenforced by one or more of the following means, that is to say —
(a) writ of delivery to recover the property or its assessedvalue;
(b) with the leave of the Court, writ of specific delivery;
(c) in a case in which rule 5 applies, an order of committal.
(3) A writ of specific delivery, a writ of delivery to recover any movableproperty or their assessed value, may include provision for enforcing the payment of any money adjudged or ordered to be paid by the judgment ororder which is to be enforced by the writ.
(4) A judgment or order for the payment of the assessed value of any movableproperty may be enforced by the same means as to any other judgment or order forthe payment of money.
Enforcement of judgment to do or abstain from doing an act. (0.45,r.5).
5. (1 ) Where —
(a) a person required by a judgment or order to do an act within atime specified in the judgment or order refuses or neglects to do it within thattime or, as the case may be, within that time as extended or abridged underOrder 3, rule 5; or
(b) a person disobeys a judgment or order requiring him to abstainfrom doing an act,
then, subject to the provisions of these Rules, the judgment or order may beenforced by one or more of the following means, that is to say —
(i) with the leave of the Court, an order of committal;
(ii) where that person is a body corporate, with the leave of the Court,an order of committal against any director or other officer of the body.
(2) Where a judgment or order requires a person to do an act within a timetherein specified and an order is subsequently made under rule 6 requiring theact to be done within some other time, references in paragraph (1) of this ruleto a judgment or order shall be construed as references to the order made underrule 6.
(3) Where under any judgment or order requiring the delivery of any movable property the person liable to execution has the alternative ofpaying the assessed value of the property, the judgment or order shall not beenforceable by order of committal under paragraph (1), but the Court may, on theapplication of the person entitled to enforce the judgment or order, make anorder requiring the first mentioned person to deliver the property to theapplicant within a time specified in the order, and that order may be soenforced.
Judgment etc. requiring act to be done: Order fixing time for doing it. (0.45, r.6).
6. (1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, theCourt shall, without prejudice to Order 3, rule 5, have power to make an orderrequiring the act to be done within another time, being such time after serviceof that order, or such other time as may be specified therein.
(2) Where, notwithstanding Order 42, rule 6(1) or by reason of Order 42,rule 6(2) a judgment or order requiring a person to do an act does not specify atime within which the act is to be done the Court shall have power subsequentlyto make an order requiring the act to be done within such time after service ofthat order, or such other time, as may be specified therein.
(3) An application for an order under this rule must be made by summons andthe summons must, notwithstanding anything in Order 62, rule 10, be served onthe person required to do the act in question.
Service of copy of judgment etc. prerequisite to enforcement under rule 5.(0.45, r.7).
7. (l) In this rule references to an order shall be construed asincluding references to a judgment.
(2) Subject to Order 24, rule 16(3) Order 26, rule 7(3), and paragraphs (6)and (7) of this rule, an order shall not be enforced under rule 5 unless—
(a) a copy of the order has been served personally on the personrequired to do or abstain from doing the act in question; and
(b) in the case of an order requiring a person to do an act, thecopy has been so served before the expiration of the time within which he wasrequired to do the act.
(3) Subject as aforesaid, an order requiring a body corporate to do orabstain from doing an act shall not be enforced as mentioned in rule 5(1)(ii)unless —
(a) a copy of the order has also been served personally on theofficer against whose property leave is sought to issue a writ of seizure andsale or against whom an order of committal is sought; and
(b) in the case of an order requiring the body corporate to do anact, the copy has been so served before the expiration of the time within whichthe body was required to do the act.
(4) There must be indorsed on the copy of an order served under this rule anotice in Form 87 informing the person on whom the copy is served —
(a) in the case of service under paragraph (2), if he neglects toobey the order within the time specified therein, or, if the order is to abstainfrom doing an act, that if he disobeys the order, he is liable to process ofexecution to compel him to obey it; and
(b) in the case of service under paragraph (3), that if the body corporate neglects to obey the order within the time so specified,or, if the order is to abstain from doing an act, that if the body corporatedisobeys the order, he is liable to process of execution to compel the body toobey it.
(5) With the copy of an order required to be served under this rule, beingan order requiring a person to do an act, there must also be served a copy ofany order made under Order 3, rule 5, extending or abridging the time for doingthe act and, where the first mentioned order was made under rule 5(3) or 6 ofthis Order, a copy of the previous order requiring the act to be done.
(6) An order requiring a person to abstain from doing an act may be enforcedunder rule 5 notwithstanding that service of a copy of the order has not beeneffected in accordance with this rule if the Court is satisfied that, pendingsuch service, the person against whom or against whose property it is sought toenforce the order has had notice thereof either —
(a) by being present when the order was made; or
(b) by being notified of the terms of the order, whether bytelephone, telegram or otherwise.
(7) Without prejudice to its powers under Order 62, rule 5, the Court maydispense with service of a copy of an order under this rule if it thinks it justto do so.
Court may order act to be done at expense of disobedient party. (0.45,r.8).
8. If an order of mandamus, a mandatory order, an injunction or ajudgment or order for the specific performance of a contract is not compliedwith, then, without prejudice to its powers under the Act and its powers topunish the disobedient party for contempt, the Court may direct that the actrequired to be done may, so far as practicable, be done by the party by whom theorder or judgment was obtained or some other person appointed by the Court, atthe cost of the disobedient party, and upon the act being done the expensesincurred may be ascertained in such manner as the Court may direct and executionmay issue against the disobedient party for the amount so ascertained and forcosts.
Execution by or against person not being a party. (0.45, r.9).
9. (1) Any person, not being a party to a cause or matter, whoobtains any order or in whose favour any order is made, shall be entitled toenforce obedience to the order by the same process as if he were a party.
(2) Any person, not being a party to a cause or matter against whomobedience to any judgment or order may be enforced, shall be liable to the sameprocess for enforcing obedience to the judgment or order as if he were aparty.
Conditional judgment: Waiver. (0.45, r.10).
10. A party entitled under any judgment or order to any relief subjectto the fulfilment of any condition who fails to fulfil that condition is deemedto have abandoned the benefit of the judgment or order and, unless the Court otherwise directs, any otherperson interested may take any proceedings which either are warranted by thejudgment or order or might have taken if the judgment or order had not beengiven or made.
Matters occurring after judgment: Stay of execution etc. (0.45,r.11).
11. Without prejudice to Order 27, rule 1, a party against whom ajudgment has been given or an order made may apply to the Court for a stay ofexecution of the judgment or order or other relief on the ground of matterswhich have occurred since the date of the judgment or order, and the Court mayby order grant such relief, and on such terms, as it thinks fit.
Forms of writs. (0.45, r.12).
12. (1) A writ of seizure and sale must be in Form 88.
(2) A writ of delivery must be in Form 89.
(3) A writ of possession must be in Form 90.
Enforcement of judgments and orders for recovery of money etc. (0.45,r.13).
13. (1) Rule (1) of this Order, with the omission of sub-paragraph (e) thereof, and Orders 46 to 51 shall apply in relation to a judgment or order for the recovery ofmoney as they apply in relation to a judgment or order for the payment ofmoney.
(2) Rule 3 of this Order, with the omission of paragraph (1) (b) thereof, and Order 47, rule 2(2), shall apply in relation to a judgment or orderfor the recovery of possession of immovable property as they apply in relationto a judgment or order for the giving or delivery of possession of immovableproperty.
(3) Rule 4 of this Order, with the omission of paragraphs l (b) and(2) (c) thereof, and Order 47, rule 2(2) shall apply in relation to ajudgment or order that a person do have a return of any movable property and toa judgment or order that a person do have a return of any movable property or dorecover the assessed value thereof as they apply in relation to a judgment ororder for the delivery of any movable property and a judgment or order for thedelivery of any movable property or payment of the assessed value thereofrespectively.
ORDER 46
WRITS OF EXECUTION: GENERAL
Definition. (0.46, r.1).
1. In this Order, unless the context otherwise requires, “writof execution” includes a writ of seizure and sale, a writ of possessionand a writ of delivery.
When leave to issue any writ of execution is necessary. (0.46,r.2).
2. (1) A writ of execution to enforce a judgment or order may notissue without the leave of the Court in the following cases, that is to say—
(a) where six years or more have lapsed since the date of thejudgment or order;
(b) where any change has taken place, whether by death orotherwise, in the parties entitled or liable to execution under the judgment ororder;
(c) where the judgment or order is against the assets of a deceasedperson coming to the hands of his executors or administrators after the date ofthe judgment or order, and it is sought to issue execution against suchassets;
(d) where under the judgment or order any person is entitled torelief subject to the fulfilment of any condition which it is alleged has beenfulfilled;
(e) where any movable property sought to be seized under a writ ofexecution is in the hands of a receiver appointed by the Court.
(2) Paragraph (1) is without prejudice to any written law or rule by virtueof which a person is required to obtain the leave of the Court for the issue ofa writ of execution or to proceed to execution on or otherwise the enforcementof a judgment or order.
(3) Where the Court grants leave, whether under this rule or otherwise, forthe issue of a writ of execution, and the writ is not issued within one yearafter the date of the order granting such leave, the order shall cease to haveeffect, without prejudice, however, to the making of a fresh order.
Application for leave to issue writ. (0.46, r.3).
3. (1) An application for leave to issue a writ of execution may bemade ex parte by summons in Form 91.
(2) Such an application must be supported by an affidavit —
(a) identifying the judgment or order to which the applicationrelates and, if the judgment or order is for the payment of money, stating theamount originally due thereunder and the amount due thereunder at the date ofthe application;
(b) stating, where the case falls within rule 2(1) (a) , thereasons for the delay in enforcing the judgment or order;
(c) stating, where the case falls within rule 2(1) (b) , thechange which has taken place in the parties entitled or liable to executionsince the date of the judgment or order;
(d) stating, where the case falls within rule 2(1) (c) or (d) , that a demand to satisfy the judgment or order was made on theperson liable to satisfy it and that he has refused or failed to do so;
(e) giving such other information as is necessary to satisfy the Courtthat the applicant is entitled to proceed to execution on the judgment or orderin question and that the person against whom it is sought to issue execution is liable to execution on it.
(3) The Court hearing such application may grant leave in accordance withthe application or may order that any issue or question, a decision on which isnecessary to determine the rights of the parties, be tried in any manner inwhich any question of fact or law arising in an action may be tried and, ineither case, may impose such terms as to costs or otherwise as it thinksjust.
Issue of writ of execution. (0.46, r.4).
4. (1) Issue of a writ of execution takes place on its being sealedby an officer of the Registry.
(2) Before such a writ is issued a praecipe in one of the forms in Form 92for its issue must be filed.
(3) The praecipe must be signed by the solicitor of the person entitled toexecution or, if that person is acting in person, by him.
(4) No such writ shall be sealed unless at the time of the tender thereoffor sealing —
(a) the person tendering it produces —
(i) the judgment or order on which the writ is to issue, or an office copythereof;
(ii) where the writ may not issue without the leave of the Court, theorder granting such leave or evidence of the granting of it;
(iii) where rule 5(2) applies, the written permission of the Controllerof Foreign Exchange therein referred to; and
(b) the officer authorised to seal it is satisfied that the period,if any, specified in the judgment or order for the payment of any money or thedoing of any other act has expired.
(5) Every writ of execution shall bear the date of the day on which it isissued.
Writ and praecipe where Exchange Control Act applies. (0.46,r.5).
5. (1) Where any party entitled to enforce a judgment or order forthe payment of money is resident outside the scheduled territories, then, unlessthe Controller has given permission under the Exchange Control Act (Chapter141), for payment of the money to him unconditionally or on conditions whichhave been complied with, any writ of execution to enforce that judgment or ordermust direct the sheriff to pay the proceeds of execution into Court.
Notice of payment into Court in compliance with such a direction must begiven by the sheriff to the party by whom the writ of execution was issued or tohis solicitor.
(2) Where the Controller has given such permission unconditionally or onconditions which have been complied with, the praecipe for the issue of a writof execution to enforce the judgment or order in question must be indorsed withsuch a certificate of that fact.
Duration and renewal of writ of execution. (0.46, r.6).
6. (1) For the purpose of execution, a writ of execution is valid inthe first instance for 12 months beginning with the date of the issue.
(2) Where a writ has not been wholly executed the Court may by order extendthe validity of the writ from time to time for a period of 12 months at any timebeginning with the day on which the order is made, if an application forextension is made to the Court before the day next following that on which thewrit would otherwise expire.
(3) Before a writ the validity of which has been extended under this rule isexecuted the writ must be marked in Form 5 showing the date on which the orderextending its validity was made.
(4) The priority of a writ, the validity of which has been extended underthis rule, shall be determined by reference to the date on which it wasoriginally issued.
(5) The production of a writ of execution, purporting to be sealed asmentioned in paragraph (3), shall be evidence that the validity of that writ hasbeen extended this rule.
Fees, expenses etc. to be levied. (0.46, r.7).
7. In every case of execution the party entitled to execution may levythe commission, fees and expenses of execution over and above the sumrecovered.
Costs of writs. (0.46, r.8).
8. Subject to these Rules, the costs of and incidental to writs ofexecution or distress, whether executed or unexecuted, or unproductive, shall beallowed against the person liable, unless the Court otherwise orders.
Satisfaction by consent. (0.46, r.9).
9. (1) Any person who has satisfied a judgment debt may on filing aconsent of the judgment creditor in Form 93 apply to the Court for satisfactionto be entered in the Cause Book and the Court may order satisfaction to beentered accordingly.
(2) The consent of the judgment creditor must be attested by his solicitoror if he has no solicitor, by a Commissioner of Oaths.
Where consent refused. (0.46, r.10).
10. (1) If a judgment creditor refuses or neglects to give suchconsent when requested, or cannot be found, the judgment debtor may apply to theRegistrar for an order that satisfaction be entered.
(2) The summons must be served on the judgment creditor at least 2 cleardays before the hearing thereof unless the Registrar otherwise orders.
(3) If on such application the Registrar is satisfied that the judgment debthas been satisfied and that the judgment creditor has no reasonable ground forrefusing or neglecting to give such consent, the Registrar may order thatsatisfaction be entered in the cause book and that the judgment creditor pay thecosts of and incidental to the application.
Deposit costs of execution with Sheriff. (0.46, r.11).
11. Before any writ of execution or distress is executed the person atwhose instance the writ was issued (hereinafter called the “executioncreditor”) must, if the sheriff so requests, deposit in the Registry asufficient sum of money to defray the costs of the execution.
Where Sheriff in possesion more than 14 days. (0.46, r.12).
12. Where the sheriff has to remain in possession of movable propertyfor more than 14 days, the execution creditor must before or at the end of thefirst 14 days of the sheriff keeping possession deposit in the Registry, if thesheriff so requests, a further sum of money to provide for the costs ofexecution for the next ensuing 14 days and must continue to make such depositsin advance before or at the end of each successive period of 14 days so long asthe sheriff continues in possession.
Proper officer to give receipt. (0.46, r.13).
13. (1) The proper officer in the Registry must give a receipt foreach sum of money deposited and he shall apply such sums or so much thereof asis necessary for the costs of the execution.
(2) The sheriff must return to the execution creditor any balance of moneyremaining over after the release of the person or the movable property seized,as the case may be, under the writ of execution or distress.
(3) Where the movable property seized under a writ of execution or distressis sold by the sheriff or he receives the amount of the levy without sale, anysums of money deposited by the execution creditor must, so far as the moniescoming to the hands of the sheriff will allow, be refunded to the executioncreditor.
Duties of Sheriff
Time of lodgment to be forthwith indorsed on writ. (0.46, r.14).
14. Whenever any writ of execution or distress is issued, the sheriffmust indorse thereon the day, hour and minute of the receipt of it.
Time of execution. (0.46, r.15).
15. Any writ of execution or distress may be executed between thehours of 9 a.m. and 4
p.m., unless the sheriff otherwise orders.
Notice of seizure and inventory. (0.46, r.16).
16. (1) Where any movable property is seized by the sheriff under awrit of execution or distress, he must give to the execution debtor a notice ofseizure in Form 94, and a copy of the notice must be filed.
(2) Where the sheriff removes from a place any movable property that isseized, he must give to the execution debtor at the time the property is removedor immediately afterwards an inventory of the property so removed.
(3) The notice of seizure under paragraph (1) and notice of removal andinventory under paragraph (2) may be —
(a) handed to the execution debtor personally; or
(b) sent to him by post to his place of residence; or
(c) left at or sent by post addressed to him at the place from whichthe property was seized.
Proper officer to keep records and to prepare statement of accounts. (0.46, r.17).
17. (1) The proper officer receiving any money under any writ ofexecution or distress must give for every sum so received a receipt.
(2) The proper officer must keep a record of all sums of money received byhim under a writ of execution or distress and of the manner in which he hasapplied them, and shall indorse on or annex to the writ a statement thereof.
(3) Subject to these Rules, the proper officer must prepare a statement ofaccount in respect of the monies received by him under a writ of execution ordistress as follows —
(a) first the Court fees and commission;
(b) next the expenses of execution;
(c) next monies due to the execution creditor under rule 13 which havenot been returned to him;
(d) next monies claimed by the landlord, not exceeding 6months’ rent, due under a writ of distress;
(e) next monies available for payment to the execution creditor tosatisfy the judgment or order in respect of which the execution was issued;
(f) next where there is more than one writ of execution in his handsagainst the same defendant, monies available to satisfy the various executioncreditors in the order of the priority of their writs according to the dates ofissue;
(g) next after accounting for the monies - for payment to the execution creditors, show - any balance due to the execution debtor.
(4) If the proceeds of the sale received by the proper officer areinsufficient to cover the fees, commission and expenses of execution, theexecution creditor must pay to the proper officer the amount of the deficiencyand shall be entitled to add such amount to the judgment debt to be eventuallyrecovered from the judgment debtor.
Sheriff to give information if required. (0.46, r.18).
18. (1) On a written application by the execution creditor, or theexecution debtor, or any claimant to movable property seized by him, the sheriffmust within 2 days furnish to such applicant a memorandum stating —
(a) the date on which the writ was delivered to him;
(b) the amount leviable under the writ;
(c) the particulars of property seized;
(d) the place of seizure;
(e) particulars of any claim to such property of which he has receivednotice;
(f) the gross proceeds of sale;
(g) the amount of the fees, commission and expenses; and
(h) the monies paid by him into the Registry and to whosecredit.
(2) The sheriff shall at all times permit the execution creditor, orjudgment debtor, or any claimant to property seized by him to inspect and copyfree of charge any inventory of property seized, sale account, or not of thefees, commission and expenses together with all vouchers in support thereof.
Date of arrest to be indorsed. (0.46, r.19).
19. The sheriff executing an order to arrest shall indorse thereon theday, hour and minute of the arrest.
Sheriff may be required to show cause for neglect of duty. (0.46,r.20).
20. Any person aggrieved by any alleged non-observance by the sheriffof any duty imposed on him by any written law or by these Rules, may apply tothe Court for an order that the sheriff show cause why he should not do thething required, and the sheriff may be required to show cause accordingly.
Payment out. (0.46, r.21).
21. Subject to these Rules and to any other written law, any sum ofmoney paid by the sheriff to the credit of the execution creditor or by thejudgment debtor, under rule 17 shall, subject to any order of Court, be paid to the execution creditor or judgment debtor respectively on hisapplication without an order:
Provided that the sheriff may, in his discretion, require the execution creditor or judgment debtor, as the case may be, to apply to Courtfor an order for payment out.
Sale by Sheriff
Sheriff to sell. (0.46, r.22).
22. Subject to these Rules, the sheriff must sell all property seizedby him under a writ of execution or distress.
Sale by public auction. (0.46, r.23).
23. Unless the sheriff otherwise orders, all sales must be by publicauction between the hours of 9 a.m. and 4 p.rn. and notice in Form 95 of theday, hour and place of any intended sale must be posted on the Notice Board ofthe Registry and as far as practicable at the place of intended sale 7 daysbefore the sale.
Where property exceeds $5,000 sale by licensed auctioneer. (0.46,r.24).
24. (1) Where the value of the property attached or seized isestimated by the sheriff to exceed $5,000, the sale must, unless the sheriffotherwise orders, be conducted by a licensed auctioneer and the sale must bepublicly advertised by the sheriff or auctioneer on and during 2 days nextpreceding the day of sale.
(2) In any other case the sale may be conducted by the sheriff.
Negotiable instruments. (0.46, r.25).
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25. Negotiable instruments may, with the leave of the Court, be soldthrough the agency of such broker and on such terms as the Court shall thinkjust.
Sheriff may execute or indorse documents. (0.46, r.26).
26. Where the execution or indorsement of any document is ordinarilylawfully required to give effect to any sale by the sheriff, the sheriff mayexecute or indorse such document; and the execution or indorsement thereof bythe sheriff shall have the same effect as the execution or indorsement by thejudgment debtor.
Interpretation of terms. (0.46, r.27).
27. In this Order, where a writ of distress has been issued, the term“execution creditor”
shall include a “landlord” and the term “judgmentdebtor” shall include a “tenant”.
ORDER 47
WRITS OF SEIZURE AND SALE
Power to stay execution by writ of seizure and sale. (0.47, r.1).
1. (1) Where a judgment is given or an order made for the payment byany person of money, and the Court is satisfied, on an application made at thetime of the judgment or order, or at any time thereafter, by the judgment debtoror other party liable to execution —
(a) that there are special circumstances which render itinexpedient to enforce the judgment or order; or
(b) that the applicant is unable from any cause to pay themoney,
then notwithstanding anything in rule 2 or 3, the Court may by order stay theexecution of the judgment or order by writ of seizure and sale either absolutelyor for such period and subject to such conditions as the Court thinks fit.
(2) An application under this rule, if not made at the time the judgment isgiven or order made, must be made by summons and may be so made notwithstanding