1. Subject to the provisions of these Rules and of the Civil Evidence Act (Northern Ireland) 1971(1) and any other statutory provision relating to evidence, any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of witnesses orally and in open court.
[E.r. 1]
2.—(1) The Court may, at or before the trial of an action begun by writ, order that the affidavit of any witness may be read at the trial if in the circumstances of the case it thinks it reasonable so to order.
(2) An order under paragraph (1) may be made on such terms as to the filing and giving of copies of the affidavits and as to the production of the deponents for cross-examination as the Court thinks fit but, subject to any such terms and to any subsequent order of the Court, the deponents shall not be subject to cross-examination and need not attend the trial for the purpose.
(3) In any cause or matter begun by originating summons, originating motion or petition, and on any application made by summons or motion , evidence may be given by affidavit unless in the case of any such cause, matter or application any provision of these Rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.
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3.—(1) Without prejudice to rule 2, the Court may, at or before the trial of any action, order that evidence of any particular fact shall be given at the trial in such manner as may be specified by the order.
(2) The power conferred by paragraph (1) extends in particular to ordering that evidence of any particular fact may be given at the trial—
(a)by statement on oath of information or belief, or
(b)by the production of documents or entries in books, or
(c)by copies of documents or entries in books, or
(d)in the case of a fact which is or was a matter of common knowledge either generally or in a particular district, by the production of a specified newspaper which contains a statement of that fact.
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4. Any order under rule 2 or 3 (including an order made on appeal) may, on sufficient cause being shown, be revoked or varied by a subsequent order of the Court made at or before the trial.
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5.—(1) A party to any cause or matter who intends to adduce in evidence a finding or decision on a question of foreign law by virtue of section 114(4) of the Act shall, not later than 21 days before the date of trial or within such other period as the Court may specify, in accordance with section 114(5) or the Act, serve written notice that he intends to do so on each of the other parties to the proceedings or his solicitor.
(2) The notice shall specify the question on which the finding or decision was given or made and specify the document in which it is reported or recorded in citable form.
(3) In any cause or matter in which evidence may be given by affidavit, an affidavit specifying the matters contained in paragraph (2) shall constitute notice under paragraph (1) if served within the period mentioned in that paragraph.
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6. The foregoing rules of this Order shall apply to trials of issues or questions of fact or law, references, inquiries and assessments of damages as they apply to the trial of actions.
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7.—(1) No deposition taken in any cause or matter shall be received in evidence at the trial of the cause or matter unless—
(a)the deposition was taken in pursuance of an order tinder Order 39, rule 1, and
(b)either the party against whom the evidence is offered consents or it is proved to the satisfaction of the Court that the deponent is dead, or beyond the jurisdiction of the Court or unable from sickness or other infirmity to attend the trial.
(2) A party intending to use any deposition in evidence at the trial of a cause or matter must, a reasonable time before the trial, give notice of his intention to do so to the other party.
(3) A deposition purporting to be signed by the person before whom it was taken shall be receivable in evidence without proof of the signature being the signature of that person.
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8.—(1) Office conies of writs, records, pleadings and documents filed in the High Court shall be admissible in evidence in any cause or matter and between all parties to the same extent as the original would be admissible.
(2) Without prejudice to the provisions of any statutory provision, every document purporting to be sealed with the seal of the Supreme Court shall be received in evidence without further proof, and any document purporting to be so sealed and to be a copy of a document filed in, or issued out of, an office of the Supreme Court shall be deemed to be an office copy of that document without further proof unless the contrary is shown.
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9. A document purporting to contain the written consent of a person to act as trustee and to bear his signature verified by some other person shall be evidence of such consent.
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10. Any evidence taken at the trial of any cause or matter may be used in any subsequent proceedings in that cause or matter.
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11.—(1) At any stage in a cause or matter the Court may order any person to attend any proceedings in the cause or matter and produce any document, to be specified or described in the order, the production of which appears to the Court to be necessary for the purpose of that proceeding.
(2) No person shall be compelled by an order under paragraph (1) to produce any document at a proceeding in a cause or matter which he could not be compelled to produce at the trial of that cause or matter.
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12.—(1) A writ of subpoena must be in Form 24, 25 or 26 in Appendix A. whichever is appropriate.
(2) Issue of a writ of subpoena takes place upon its being sealed by an officer of the appropriate office.
(3) Before a writ of subpoena is issued a praecipe for the issue of the writ must be filed in the office out of which the writ is to issue; and the praecipe must contain the name and address of the party issuing the writ, if he is acting in person, or the name or firm and business address of that party's solicitor.
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13. The names of two or more persons may be included in one writ of subpoena ad testicandum.
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14. Where there is a mistake in any person's name or address in a writ of subpoena, then, if the writ has not been served, the party by whom the writ was issued may have the writ re-sealed in correct form by filing a second praecipe under rule 12(5) indorsed with the words “Amended and re-sealed”.
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15. A writ of subpoena must be served personally and, subject to rule 17, the service shall not be valid unless effected within 12 weeks after the date of issue of the writ.
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16. Subject to rule 17, a writ of subpoena continues to have effect until the conclusion of the trial at which the attendance of the witness is required.
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17.—(1) The office of the Supreme Court out of which a writ of subpoena ad testificandum or a writ of subpoena duces tecum in aid of an inferior court or tribunal may be issued is the Crown Office, and no order of the Court for the issue of such a writ is necessary.
(2) A writ of subpoena in aid of an inferior court or tribunal continues to have effect until the disposal of the proceedings before that court or tribunal at which the attendance of the witness is required.
(3) A writ of subpoena issued in aid of an inferior court or tribunal must be served personally.
(4) Unless a writ of subpoena issued in aid of an inferior court or tribunal is duly served on the person to whom it is directed not less than 4 days, or such other period as the Court may fix, before the day on which the attendance of that person before the court or tribunal is required by the writ, that person shall not be liable to any penalty or process for failing to obey the writ.
(5) An application to set aside a writ of subpoena issued in aid of an inferior court or tribunal may be heard by the Master (Queen's Bench and Appeals).
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18.—(1) In this Part of this Order “the Civil Evidence Act” means the Civil Evidence Act (Northern Ireland) 1971.
(2) Any expressions used in this Part of this Order and in Part I of the Civil Evidency Act have the same meanings in this Part of this Order as they have in the said Part I.
(3) This Part of this Order shall apply in relation to the trial or hearing of an issue or question arising in a cause or matter, and to a reference, inquiry and assessment of damages, as it applies in relation to the trial or hearing of a cause or matter.
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19.—(1) Subject to the provisions of this rule, a party to a cause or matter who desires to give in evidence at the trial or hearing of the cause or matter any statement contained in a document which is admissible in evidence by virtue of section 1 or 2 of the Civil Evidence Act must not later than 21 days before the date of trial serve on every other party to the cause or matter notice of his desire to do so, and the notice must comply with the provisions of rule 20 or 21, as the circumstances of the case require.
(2) Paragraph (1) shall not apply in relation to any statement contained in a document which any party to a probate action desires to give in evidence at the trial of that action and which is alleged to have been made by the deceased person whose estate is the subject of the action.
(3) Where by virtue of any provision of these rules or of any order or direction of the Court the evidence in any proceedings is to be given by affidavit then paragraph (1) shall not apply in relation to any statement contained in a document which any party to the proceedings desires to have included in any affidavit to be used on his behalf in the proceedings but nothing in this paragraph shall affect the operation of Order 41, rule 5, or the powers of the Court under this Order.
(4) Unless the Court otherwise directs, paragraph 0) shall not apply in relation to any statement contained in a document which is admissible by virtue of section 1 or 2 of the Civil Evidence Act and which an applicant for judgment in default of appearance in admiralty proceedings under Order 75, rule 21, desires to give in evidence at the hearing.
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20.—(1) If the statement contained in a document is admissable by virtue of section 1 of the Civil Evidence Act, the notice must have annexed to it a copy or transcript of the document containing the statement, or of the relevant part thereof, and must contain—
(a)particulars of—
(i)the person by whom the record containing the statement was compiled;
(ii)the person who originally supplied information from which the record was compiled; and
(iii)any other person through whom that information was supplied to the compiler of that record;
and, in the case of any such person as is referred to in (i) or (iii) above, a description of the duty under which that person was acting when compiling that record or supplying information from which that record was compiled, as the case may be;
(b)if not apparent on the face of the document annexed to the notice, a description of the nature of the record which, or part of which, contains the statement; and
(c)particulars of the time, place and circumstances at or in which that record or part was compiled.
(2) If the party giving the notice alleges that any person, particulars of whom are contained in the notice, cannot or should not be called as a witness at the trial or hearing for any of the reasons specified in rule 22, the notice must contain a statement to that effect specifying the reason relied on.
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21.—(1) If the statement is contained in a document produced by a computer and is admissible by virtue of section 2 of the Civil Evidence Act, the notice must have annexed to it a copy or transcript of the document containing the statement, or of the relevant part thereof, and must contain particulars of—
(a)a person who occupied a responsible position in relation to the management of the relevant activities for the purpose of which the computer was used regularly during the material period to store or process information;
(b)a person who at the material time occupied such a position in relation to the supply of information to the computer, being information which is reproduced in the statement or information from which the information contained in the statement is derived;
(c)a person who occupied such a position in relation to the operation of the computer during the material period;
and where there are two or more persons who fall within any of the foregoing sub-paragraphs and some only of those persons are at the date of service of the notice capable of being called as witnesses at the trial or hearing, the person particulars of whom are to be contained in the notice must be such one of those persons as is at that date so capable.
(2) The notice must also state whether the computer was operating properly throughout the material period and, if not, whether any respect in which it was not operating properly or was out of operation during any part of that period was such as to affect the production of the document in which the statement is contained or the accuracy of its contents.
(3) If the party giving the notice alleges that any person, particulars of whom are contained in the notice, cannot or should not be called as a witness at the trial or hearing for any of the reasons specified in rule 22, the notice must contain a statement to that effect specifying the reason relied on.
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22. The reasons referred to in rules 20(2) and 21(3) are that the person in question is dead, or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness or that despite the exercise of reasonable diligence it has not been possible to identify or find him or that he cannot reasonably be expected to have any recollection of matters relevant to the accuracy or otherwise of the statement to which the notice relates.
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23.—(1) Subject to paragraphs (2) and (3), any party to a cause or matter on whom a notice under rule 19 is served may within 21 days after service of the notice on him serve on the party who gave the notice a counter-notice requiring that party to call as a witness at the trial or hearing of the cause or matter any person (naming him) particulars of whom are contained in the notice.
(2) Where any notice under rule 19 contains a statement that any person particulars of whom are contained in the notice cannot or should not be called as a witness for the reason specified therein, a party shall not be entitled to serve a counter-notice under this rule requiring that person to be called as a witness at the trial or hearing of the cause or matter unless he contends that that person can or, as the case may be, should be called, and in that case he must include in his counter-notice a statement to that effect.
(3) Where a statement to which a notice under rule 19 relates is one to which rule 25 applies, no party on whom the notice is served shall be entitled to serve a counter-notice under this rule in relation to that statement, but the foregoing provision is without prejudice to the right of any party to apply to the Court under rule 25 for directions with respect to the admissibility of that statement.
(4) If any party to a cause or matter by whom a notice under rule 19 is served fails to comply with a counter-notice duly served on him under this rule, then, unless any of the reasons specified in rule 22 applies in relation to the person named in the counter-notice, and without prejudice to the powers of the Court under rule 26, the statement to which the notice under rule 19 relates shall not be admissable at the trial or hearing of the cause or matter as evidence of any fact stated therein by virtue of section 1 or 2 of the Civil Evidence Act, as the case may be.
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24.—(1) Where in any cause or matter a question arises whether any of the reasons specified in rule 22 applies in relation to a person particulars of whom are contained in a notice under rule 19, the Court may, on the application by summons of any party to the cause or matter, determine that question before the trial or hearing of the cause or matter or give directions for it to be determined before the trial or hearing and for the manner in which it is to be so determined.
(2) Unless the Court otherwise directs, the summons by which an application under paragraph (1) is made must be served by the party making the application on every other party to the cause or matter.
(3) Where any such question as is referred to in paragraph (1) has been determined under or by virtue of that paragraph, no application to have it determined afresh at the trial or hearing of the cause or matter may be made unless the evidence which it is sought to adduce in support of the application could not with reasonable diligence have been adduced at the hearing which resulted in the determination.
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25. Where a party to a cause or matter has given notice in accordance with rule 19 that he desires to give in evidence at the trial or hearing of the cause or matter a statement falling within section 1(1) of the Civil Evidence Act which is contained in a record of direct oral evidence given in some other legal proceedings (whether civil or criminal), any party to the cause or matter may apply to the Court for directions under this rule, and the Court hearing such an application may give directions as to whether, and if so on what conditions, the party desiring to give the statement in evidence will be permitted to do so and (where applicable) as to the manner in which that statement and any other evidence given in those other proceedings is to be proved.
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26.—(1) Without prejudice to section 1(2)(a) of the Civil Evidence Act and rule 25, the Court may, if it thinks just to do so, allow a statement falling within section 1(1) or 2(1) of the Civil Evidence Act to be given in evidence at the trial or hearing of a cause or matter notwithstanding—
(a)that the statement is one in relation to which rule 19(1) applies and that the party desiring to give the statement in evidence has failed to comply with that rule, or
(b)that that party has failed to comply with any requirement of a counter-notice relating to that statement which was served on him in accordance with rule 23.
(2) Without prejudice to the generality of paragraph (1), the Court may exercise its powers under that paragraph to allow a statement to be given in evidence at the trial or hearing of a cause or matter if a refusal to exercise that power might oblige the party desiring to give the statement in evidence to call as a witness at the trial or hearing an opposite party or a person who is or was at the material time the servant or agent of an opposite party.
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27. Where—
(a)notice given under rule 19 in a cause or matter relates to a statement which is admissable by virtue of section 1 of the Civil Evidence Act, and
(b)the person who originally supplied the information from which the record containing the statement was compiled, is not called as a witness at the trial or hearing of the cause or matter, and
(c)none of the reasons mentioned in rule 22 applies so as to prevent the party who gave the notice from calling that person as a witness,
no other party to the cause or matter shall be entitled except with the leave of the Court, to adduce in relation to that person any evidence which could otherwise be adduced by him by virtue of section 4 of the Civil Evidence Act unless he gave a counter-notice under rule 23 in respect of that person or applied under rule 23 for a direction that that person be called as a witness at the trial or hearing of the cause or matter.
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28.—(1) Where a person, particulars of whom were contained in a notice given under rule 19 in a cause or matter, is not to be called as a witness at the trial or hearing of the cause or matter, any party to the cause or matter who is entitled and intends to adduce in relation to that person any evidence which is admissible for the purpose mentioned is section 4(1)(b) of the Civil Evidence Act must, not more than 21 days after service of that notice on him, serve on the party who gave that notice, notice of his intention to do so.
(2) If the statement sought to be adduced was made otherwise than in a document, the notice must contain particulars of—
(a)the time, place and circumstances at or in which the statement was made;
(b)the person by whom, and the person to whom the statement was made; and
(c)the substance of the statement or, if material, the words used.
(3) If the statement sought to be adduced was made in a document, a copy or transcript of the document, or of the relevant part thereof, must be annexed to the notice and the notice must contain such (if any) of the particulars mentioned in paragraph 2(a) and (b) as are not apparent on the face of the document or part.
(4) The Court may, if it thinks it just to do so, allow a party to give in evidence at the trial or hearing of a cause or matter any evidence which is admissible for the purpose mentioned in the said section 4(1)(b) notwithstanding that that party has failed to comply with the provisions of paragraph (1).
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29. If—
(a)a party to a cause or matter serves a counter-notice under rule 23 in respect of any person who is called as a witness at the trial of the cause or matter in compliance with a requirement of the counter-notice, and
(b)it appears to the Court that it was unreasonable to require that person to be called as a witness,
then, without prejudice to Order 62, rule 14, the Court may direct that any costs to that party in respect of the preparation and service of the counter-notice shall not be allowed to him and that any costs occasioned by the counter-notice to any other party shall be paid by him to that other party.
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