The Rules of the Supreme Court (Northern Ireland) (Revision) 1980

SPECIAL PROVISIONS AS TO PARTICULAR PROCEEDINGS

ORDER 74

[No Order made]

ORDER 75 ADMIRALTY PROCEEDINGS

Application and interpretation

1.—(1) This Order applies to Admiralty causes and matters, and the other provisions of these Rules apply to those causes and matters subject to the provisions of this Order.

(2) In this Order—

“action in rem” means an Admiralty action in rem;

“caveat against arrest” means a caveat entered in the caveat book under rule 6;

“caveat against release and payment” means a caveat entered in the caveat book under rule 14;

“caveat book” means the book kept in the Central Office in which caveats issued under this Order are entered;

“limitation action” means an action by shipowners or other persons under the Merchant Shipping Acts 1894 to 1974 for the limitation of the amount of their liability in connection with a ship or other property;

“marshal” means the Admiralty marshal and includes the Deputy Marshal;

“Registrar” means the Registrar (Queen's Bench and Appeals);

“ship” includes any description of vessel used in navigation.

[E.r. 1]

Certain actions to be assigned to Admiralty

2.—(1) Without prejudice to Order 1 or to any other statutory provision providing for the assignment of causes and matters to the Queen's Bench Division—

(a) every action to enforce a claim for damage, loss of life or 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 case of one or more of two or more ships, or

(iii) non-compliance, on the part of one or more of two or more ships with the collision regulations,

(b) every limitation action, and

(c) every action to enforce a claim under section 1 of the Merchant Shipping (Oil Pollution) Act 1971(1) or section 4 of the Merchant Shipping Act 1974(2)

shall be assigned to that Division.

(2) In this rule “collision regulations” means regulations under section 418 of the Merchant Shipping Act 1894(3), or any such rules as are mentioned in subsection (1) of section 421 of that Act or any rules made under subsection (2) of the said section 421.

[E.r. 2]

Proceedings against, or concerning, the International Pollution Fund

2A.—(1) All proceedings against the International Oil Pollution Compensation Fund (in this rule referred to as “ the Fund”) under section 4 of the Merchant Shipping Act 1974 shall be commenced in the Central Office.

(2) For the purpose of section 6(2) of the Merchant Shipping Act 1974, any party to proceedings brought against an owner or guarantor in respect of liability under section 1 of the Merchant Shipping (Oil Pollution) Act 1971 may give notice to the Fund of such proceedings by serving a notice in writing on the Fund together with a copy of the writ and copies of the pleadings (if any) served in the action.

(3) The Court shall, on the application made ex parte by the Fund, grant leave to the Fund to intervene in any proceedings to which the preceding paragraph applies, whether notice of such proceedings has been served on the Fund or not, and paragraphs (3) and (4) of rule 17 shall apply to such an application.

(4) Where judgment is given against the Fund in any proceedings under section 4 of the Merchant Shipping Act 1974, the Registrar shall cause a stamped copy of the judgment to be sent by post to the Fund.

(5) The Fund shall notify the Registrar of the matters set out in section 4(12)(b) of the Merchant Shipping Act 1974 by a notice in writing, sent by post to, or delivered at, the Central Office.

[E.r. 2A]

Issue of writ and entry of appearance

3.—(1) An action in rem must be begun by writ, and the writ must be in Form 1 in Appendix B.

(2) Order 6, rule 6, shall apply in relation to a writ by which an Admiralty action is begun, and Order 12 shall apply in relation to such an action.

[E.r. 3]

Service of writ out of jurisdiction

4.—(1) Subject to the following provisions of this rule, service out of the jurisdiction of a writ; or notice of a writ, containing any such claim as is mentioned in rule 2(1)(i) is permissible with the leave of the Court, if, but only if—

(a) the defendant has his habitual place of business within Northern Ireland, or

(b) the cause of action arose within inland waters of Northern Ireland or within the limits of a port of Northern Ireland, or

(c) an action arising out of the same incident or series of incidents is proceeding in the High Court or has been heard and determined in the High Court, or

(d) the defendant has submitted or agreed to submit to the jurisdiction of the High Court.

In this paragraph “inland waters” and “port” have the same meanings as in paragraph 4(1) of the First Schedule to the Administration of Justice Act 1956(4).

(2) Order 11, rule 3 and rule 4(1), (2) and (4), shall apply in relation to an application for a grant of leave under this rule as they apply in relation to an application for the grant of leave under rule 1 or 2 of that Order.

(3) Paragraph (1) shall not apply to an action in rem.

(4) The proviso to rule 6(1) of Order 6 and Order 11, rule 1(2), shall not apply to a writ by which any Admiralty action is begun or to notice of any such writ.

[E.r. 4]

Warrant of arrest

5.—(1) After a writ has been issued in an action in rem a warrant in Form No. 2 in Appendix B for the arrest of the property against which the action or any counterclaim in the action is brought may, subject to the provisions of this rule, be issued at the instance of the plaintiff or, of the defendant, as the case may be.

(2) A party applying for the issue out of the Central Office of a warrant to arrest any property shall procure a search to be made in the caveat book for the purpose of ascertaining whether there is a caveat against arrest in force with respect to that property.

(3) A warrant of arrest shall not be issued until the party applying for it has filed a praccipe in Form No. 3 in Appendix B requesting issue of the warrant together with an affidavit made by him or his agent containing the particulars required by paragraphs (6), (7), (8) and (10) so, however, that the Court may, if it thinks fit, allow the warrant to issue notwithstanding that the affidavit does not contain all those particulars.

(4) Except with the leave of the Court or where notice has been given under paragraph (11) a warrant of arrest shall not be issued in an action in rem against a foreign ship belonging to a port of a State having a consulate in Northern Ireland, being an action for possession of the ship or for wages, until notice that the action has been begun has been sent to the consul.

(5) Except with the leave of the Court, a warrant of arrest shall not be issued in an action in rem in which there is a claim arising out of bottomry until the bottomry bond and, if the bond is in a foreign language, a notarial translation thereof is produced to the Registrar.

(6) Every affidavit must state—

(a) the name, address and occupation of the applicant for the warrant;

(b) the nature of the claim or counterclaim in respect of which the warrant is required and that it has not been satisfied; and

(c) the nature of the property to be arrested and, if the property is a ship, the name of the ship and the port to which she belongs.

(7) Every affidavit in an action in rem brought against a ship by virtue of paragraph 3(4) of the First Schedule to the Administration of Justice Act 1956 must state—

(a) whether the ship against which the action is brought is the ship in connection with which the claim in the action arose;

(b) that in the belief of the deponent the person who would, apart from paragraph 4 of the First Schedule to that Act, be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer, or in possession or control, of the ship in connection with which the claim arose and was also, at the time of the issue of the writ, the beneficial owner of all the shares in the ship against which the action is brought; and

(c) the grounds of the deponent's belief.

(8) Every affidavit in an action in rem for possession of a ship or for wages must state the nationality of the ship against which the action is brough and that the notice (if any) required by paragraph (4) has been sent.

A copy of such notice must be exhibited to the affidavit.

(9) An affidavit in such an action as is referred to in paragraph (5) must have annexed thereto a certified copy of the bottomry bond, or of the translation thereof.

(10) Where, by any convention or treaty, the United Kingdom has undertaken to minimise the possibility of arrest of ships of another State, no application shall be made for the issue of a warrant of attest in an action in rem against a ship owned by that State until notice in Form No.. 14 in Appendix B has been served on a consular officer at the consular office of that State in London or the port at which it is intended to cause the ship to be arrested.

In a case to which this paragraph applies the affidavit required by paragraph (3) shall state that the notice required by this paragraph has been served and a copy of the notice shall be exhibited to the affidavit.

[E.r. 5]

Caveat against arrest

6.—(1) A person who desires to prevent the arrest of any property must file in the Central Office a praecipe, in Form No. 4 in Appendix B, signed by him or his solicitor undertaking—

(a) to enter an appearance in any action that may be begun against the property described in the praecipe, and

(b) within 3 days after receiving notice that such an action has been begun, to give bail in the action in a sum not exceeding an amount specified in the praecipe or to pay the amount so specified into court;

and on the filing of the praecipe a caveat against the issue of a warrant to arrest the property described in the praecipe shall he entered in the caveat book.

(2) The fact that there is a caveat against arrest in force shall not prevent the issue of a warrant to arrest the property to which the caveat relates.

[E.r. 6]

Remedy where property protected by caveat is arrested

7.  Where any property with respect to which a caveat against arrest is in force is arrested in pursuance of a warrant of arrest, the party at whose instance the caveat was entered may apply to the Court by motion for an order under this rule and, on the hearing of the application, the Court, unless it is satisfied that the party procuring the arrest of the property bad a good and sufficient reason for so doing, may by, order discharge the warrant and may also order the last-mentioned party to pay to the applicant damages, in respect of the loss suffered by the applicant as a result of the arrest.

[E.r. 7]

Service of writ in action in rem

8.—(1) Subject to paragraph (2), a writ by which an action in rem is begun must be served on the property against which the action is brought except—

(a) where that property is freight, in which case it must be served on the cargo in respect of which the freight is payable or on the ship in which that cargo was carried, or

(b) where that property has been sold and the proceeds of sale paid into court, in, which case it must be served on the Registrar.

(2) A writ need not be served on the property mentioned in paragraph (1) or the Registrar if the writ is deemed to have been duly served on the defendant by virtue of Order 10, rule 1(4) or (5).

(3) Where by virtue of this rule a writ is required to be served on any property, the plaintiff may request service of the writ to be effected by the marshal if, but only if, a warrant of arrest has been issued for service against the property or the property is under arrest, and in that case the plaintiff must file in the Central Office a praecipe in form No. 5 in Appendix B and lodge—

(a) the writ and copy thereof, and

(b) an undertaking to pay on demand all expenses incurred by the marshal or his substitute in respect of the service of the writ,

and thereupon the marshal or his substitute shall serve the writ on the property described in the praecipe.

(4) Where the plaintiff in an action in rem, or his solicitor, becomes aware that there is in force a caveat against arrest with respect to the property against which the action is brought, he must serve the writ forthwith on the person at whose instance the caveat was entered.

(5) Where a writ by which an action in rem is begun is amended under Order 20, rule 1, after service thereof, Order 20, rule 1(2), shall not apply and, unless the Court otherwise directs on an application made ex parte, the amended writ must be served on any defendant who has entered an appearance in the action or, if no defendant has entered an appearance therein, on the property mentioned in paragraph (1) or the Registrar.

[E.r. 8]

Committal of solicitor failing to comply with undertaking

9.  Where the solicitor of a party to an action in rem fails to comply with a written undertaking given by him to any other party or his solicitor to enter an appearance in the action, give bail or pay money into court in lieu of bail, he shall be liable to committal.

[E.r. 9]

Execution, etc., of warrant of arrest

10.—(1) A warrant of arrest is valid for 12 months beginning with the date of its issue.

(2) A warrant of arrest may be executed only by the marshal or his substitute.

(3) A warrant of arrest shall not be executed until an undertaking to pay on demand the fees of the marshal and all expenses incurred by him or on his behalf in respect of the arrest of the property and the care and custody of it while under arrest has been lodged in the marshal's office.

(4) A warrant of arrest shall not be executed if the party at whose instance it was issued lodges a written request to that effect with the marshal.

(5) A warrant of arrest issued against freight may be executed by serving the warrant on the cargo in respect of which the freight is payable or on the ship in which that cargo was carried or on both of them.

(6) Subject to paragraph (5), a warrant of arrest must be served on the property against which it is issued.

(7) Within 7 days after the service of a warrant of arrest, the warrant must be filed in the Central Office.

[E.r. 10]

Service on ships, etc. : how effected

11.—(1) Subject to paragraph (2), service of a warrant of arrest or writ in an action in rem against a ship, freight or cargo shall be effected by—

(a) affixing the warrant or writ for a short time on any mast of the ship or on the outside of any suitable part of the ship's superstructure, and

(b) on removing the warrant or writ, leaving a copy of it affixed (in the case of the warrants) in its place or (in the case of the writ) on a sheltered, conspicuous part of the ship.

(2) Service of a warrant of arrest or writ in an action in rem against freight or cargo or both shall, if the cargo has been landed or transhipped, be effected—

(a) by placing the warrant or writ for a short time on the cargo and, on removing the warrant or writ, leaving a copy of it on the cargo, or

(b) if the cargo is in the custody of a person who will not permit access to it, by leaving a copy of the warrant or writ with that person.

[E.r. 11]

Applications with respect to property under arrest

12.—(1) The marshal may at any time apply to the Court for directions with respect to property under arrest in an action and may, or, if the Court so directs, shall, give notice of the application to any or an of the parties to every action against the property.

(2) The marshal shall send a copy of any order made under paragraph (1) to all parties to every action against the property to which the order relates.

[E.r. 12]

Release of property under arrest

13.—(1) Except where property arrested in pursuance of a warrant of arrest is sold under an order of the Court, property which has been so arrested shall only be released under the authority of an instrument of release (in this rule referred to as a “ release”), in Form No. 6 in Appendix B, issued out of the Central Office.

(2) A party at whose instance any property was arrested may, before an appearance is entered in the action, file a notice withdrawing the warrant of arrest and, if he does so, a release shall, subject to paragraphs (3) and (5), be issued with respect to that property.

(3) Unless the Court otherwise orders, a release shall not be issued with respect to property as to which a caveat against release is in force.

(4) A release may be issued at the instance of a party interested in the property under arrest if the Court; so orders, or, subject to paragraph (3), if all the other parties to the action in which the warrant of arrest was issued consent.

(5) Before a release is issued the party entitled to its issue must—

(a) if there is a caveat against release in force as to the property in question, give notice to the party at whose instance it was entered or his solicitor requiring the caveat to be withdrawn, and

(b) file a praecipe in Form No. 7 in Appendix B requesting issue of a release.

(6) Before property under arrest is released in compliance with a release issued under this rule, the party at whose instance it was issued must, in accordance with the directions of the marshal, either—

(a) pay the fees of the marshal already incurred and lodge in the marshal's office an undertaking to pay on demand the other fees and expenses in connection with the arrest of the property and the care and custody of it while under arrest and of its release, or

(b) lodge in the marshal's office an undertaking to pay on demand all such fees and expenses, whether incurred or to be incurred.

(7) The Court, on the application of any party who objects to directions given to him by the marshal under paragraph (6), may vary or revoke the directions.

[E.r. 13]

Caveat against release and payment

14.—(1) A person who desires to prevent the release of any property under arrest in an action in rem and the payment out of Court of any money in court representing the proceeds of sale of that property must file in the Central Office a praecipe in Form No. 8 in Appendix B, and on the filing of the praecipe a caveat against the issue of a release with respect to that property and the payment out of court of that money shall be entered in the caveat book.

(2) Where the release of any property under arrest is delayed by the entry of a caveat under this rule, any person having an interest in that property may apply to the Court by motion for an order requiring the person who procured the entry of the caveat to pay to the applicant damages in respect of the loss suffered by the applicant by reason of the delay, and the Court, unless it is satisfied that the person procuring the entry of the caveat had a good and sufficient reason for so doing, may make an order accordingly.

[E.r. 14]

Duration of caveats

15.—(1) Every caveat entered in the caveat book is valid for 6 months beginning with the date of its entry but the person at whose instance a caveat was entered may withdraw it by filing a praecipe in Form No. 9 in Appendix B.

(2) The period of validity of a caveat may not be extended but this provision shall not be taken as preventing the entry of successive caveats.

[E.r. 15]

Bail

16.—(1) Bail on behalf of a party to an action in rem must be given by bond in Form No. 10 in Appendix B; and the sureties to the bond must enter into the bond before a commissioner to administer oaths, not being a commissioner who, or whose partner, is acting as solicitor or agent for the party on whose behalf the bail is to be given, or before the Registrar.

(2) Subject to paragraph (3), a surety to a bail bond must make an affidavit stating that he is able to pay the sum for which the bond is given.

(3) Where a corporation is a surety to a bail bond given on behalf of a party, no affidavit shall be made under paragraph (2) on behalf of the corporation unless the opposite party requires it, but where such an affidavit is required it must be made by a director, manager, secretary or other similar officer of the corporation.

(4) The party on whose behalf bail is given must serve on the Opposite party a notice of bail containing the names and addresses of the persons who have given bail on his behalf and of the commissioner or Registrar before whom the bail bond was entered into; and after the expiration of 24 hours from the service of the notice (or sooner with the consent of the opposite party) he may file the bond and must at the same time file the affidavits (if any) made under paragraph (2) and an affidavit proving due service of the notice of bail to which a copy of that notice must be exhibited.

[E.r. 16]

Interveners

17.—(1) Where property against which an action in rem is brought is under arrest or money representing the proceeds of sale of that property is in court, a person who has an interest in that property or money but who is not a defendant to the action may, with the leave of the Court, intervene in the action.

(2) An application for the grant of leave under this rule must be made ex parte by affidavit showing the interest of the applicant in the property against which the action is brought or in the money in court.

(3) A person to whom leave is granted to intervene in an action must enter an appearance therein in the Central Office within the period specified in the order granting leave; and Order 12, rules 1 to 4, shall, with the necessary modifications, apply in relation to the entry of appearance by an intervener as if he were a defendant named in the writ.

(4) The Court may order that a person to whom it grants leave to intervene in an action shall, within such period as may be specified in the order, serve on every other party to the action such pleading as may be so specified.

[E.r. 17]

Preliminary acts

18.—(1) In an action to enforce a claim for damage, loss of life or personal injury arising out of a collision between ships, unless the Court otherwise orders, the plaintiff must, within 2 months after issue of the writ, and the defendant must, within 2 months after entering an appearance in the action, and before any pleading is served, lodge in the Central Office a document (in these rules referred to as a preliminary act) containing a statement of the following particulars :—

(i) the names of the ships which came into collision and their ports, of registry;

(ii) the date and time of the collision;

(iii) the place of the collision;

(iv) the direction and force of the wind;

(v) the state of the weather;

(vi) the state, direction and force of the tidal or other current;

(vii) the course steered and speed through the water of the ship when the other ship was first seen or immediately before any measures were taken with, reference to her presence, whichever was the. earlier;

(viii) the lights (if any) carried by the ship;

(ix) (a) the distance and bearing of the other ship if and when her echo was first observed by radar;

(b) the distance, bearing and approximate heading of the other ship when first seen;

(x) what light or combination of lights (if any) of the other ship was first seen;

(xi) what other lights or combinations of lights (if any) of the other ship were subsequently seen before the collision, and when;

(xii) what alterations (if any) were made to the course and speed of the ship after the earlier of the two times referred to in article (vii) up to the time of the collision, and, when, and what measures (if any), other than alterations of course and speed, were taken to avoid the collision, and when;

(xiii) the parts of each ship which first came into contact and the approximate angle between the two ships at the moment of contact;

(xiv) what sound signals (if any) were given, and when;

(xv) what sound signals (if any) were heard from the other ship, and when.

(2) Every preliminary act shall be sealed by the proper officer and shall be filed in a closed envelope (stamped with an official stamp showing the date of filing) and, unless the Court otherwise orders, no envelope shall be opened until the pleadings are closed and a consent signed by each of the parties or his solicitor to the opening of the preliminary acts is filed with the proper officer.

(3) Where the Court orders the preliminary acts to be opened, the Court may further order the action to be tried without pleadings but, where the Court orders the action to be so tried, any party who intends to rely on the defence of compulsory pilotage must give notice of his intention to do so to the other parties within 7 days after the opening of the preliminary acts.

(4) Where the Court orders the action to be tried without pleadings, it may also order each party, within such period as may be specified in the order, to file a statement of the grounds on which he charges any other party with negligence in connection with the collision and to serve a copy thereof on that other party.

(5) Order 18, rule 1, shall not apply to an action in which preliminary acts are required but, unless the Court orders the action to be tried without pleadings, the plaintiff must serve a statement of claim on each defendant within 14 days after the latest date on which the preliminary act of any party to the action is filed.

[E.r. 18]

Failure to lodge preliminary act: proceedings against party in default

19.—(1) Where in such an action as is referred to in rule 18(1) the plaintiff fails to lodge a preliminary act within the prescribed period, any defendant who has lodged such an act may apply to the Court by summons for an order to dismiss the action, and the Court may by order dismiss the action or make such other order on such terms as it thinks just.

(2) Where in such an action, being an action in personam, a defendant fails to lodge a preliminary act within the prescribed period, Order 19, rules 2 and 3, shall apply as if the defendant's failure to lodge the preliminary act within that period were a failure by him to serve a defence on the plaintiff within the period fixed by or under these rules for service thereof, and the plaintiff, if he has lodge a preliminary act may, subject to Order 77, rule 9, accordingly enter judgment against that defendant in accordance with the said rule 2 or the said rule 3, as the circumstances of the case require.

(3) Where in such an action, being an action in rem, a defendant fails to lodge a preliminary act within the prescribed period, the plaintiff, if he has lodged such an act, may apply to the Court by motion for judgment against that defendant, and it shall not be necessary for the plaintiff to file or serve a statement of claim or an affidavit before the hearing of the motion.

(4) On the hearing of a motion under paragraph (3) the Court may make such order as it thinks just, and where the defendant does not appear on the hearing and the Court is of opinion that judgment should be given for the plaintiff provided he proves his case, it shall order the plaintiff's preliminary act to be opened and require the plaintiff to satisfy the Court that his claim is well founded.

The plaintiff's evidence may, unless the Court otherwise orders, be given by affidavit without any order or direction in that behalf.

(5) Where the plaintiff in accordance with a requirement under paragraph (4) satisfies the Court that his claim is well founded, the Court may give judgment for the claim with or without a reference to the Registrar and may at the same time order the property against which the action is brought to be appraised and sold and the proceeds to be paid into court or make such an order as it thinks just.

(6) The Court may, on such terms as it thinks just, set aside any judgment entered in pursuance of this rule.

(7) In this rule references to the prescribed period shall be construed as references to the period within which by virtue of rule 18(1) or of any order of the Court the plaintiff or defendant, as the context of the reference requires, is required to lodge a preliminary act.

[E.r. 19]

Special provisions as to pleadings in collision, etc. actions

20.—(1) Notwithstanding anything in Order 18, rule 3, the plaintiff in any such action as is referred to in rule 2(1)(a) may not serve a reply or a defence to counterclaim on the defendant except with the leave of the Court.

(2) If in such an action there is a counterclaim and no defence to counterclaim by the plaintiff, then, notwithstanding Order 18, rule 14(3), but without prejudice to the other provisions of that rule, there is an implied joinder of issue on the counterclaim, and the joinder of issue operates as a denial of every material allegation of fact made in the counterclaim.

[E.r. 20]

Judgment by default

21.—(1) Where a writ is served under rule 8(4) on a party at whose instance a caveat against arrest was issued, then if—

(a) the sum claimed in the action begun by the writ does not exceed the amount specified in the undertaking given by that party or his solicitor to procure the entry of the caveat, and

(b) that party or his solicitor does not within 14 days after service of the writ fulfil the undertaking given by him as aforesaid,

the plaintiff may, after filing an affidavit verifying the facts on which the action "is based, apply to the Court for judgment by default.

(2) Judgment given under paragraph (1) may be enforced by the arrest of the property against which the action was brought and by committal of the party at whose instance the caveat with respect to that property was entered.

(3) Where a defendant to an action in rem fails to enter an appearance within the time limited for appearing, then, on the expiration of 14 days after service of the writ and upon filing an affidavit proving due service of the writ, an affidavit verifying the facts on which the action is based and, if a statement of claim was not indorsed on the writ, a copy of the statement of claim, the plaintiff may apply to the Court for judgment by default.

Where the writ is deemed to have been duly served on the defendant by virtue of Order 10, rule 1(4) or was served on the Registrar under rule 8 of this Order, an affidavit proving due service of the writ need not be filed under this paragraph, but the writ indorsed as mentioned in the said rule 1(4) or indorsed by the Registrar with a statement that he accepts service of the writ must be lodged with the affidavit verifying the facts on which the action is based.

(4) Where a defendant to an action in rem fails to serve a defence on the plaintiff, then, after the expiration of the period fixed by or under these Rules for service of the defence and upon filing an affidavit stating that no defence was served on him by that defendant during that period, an affidavit verifying the facts on which the action is based and, if a statement of claim was not indorsed on the writ, a copy of the statement of claim, the plaintiff may apply to the Court for judgment by default.

(5) Where a defendant to a counterclaim in an action in rem fails to serve a defence to counterclaim on the defendant making the counterclaim, then, subject to paragraph (6), after the expiration of the period fixed by or under these Rules for service of the defence to counterclaim and upon filing an affidavit stating that no defence to counterclaim was served on him by the first-mentioned defendant during that period; an affidavit verifying the facts on which the counterclaim is based and a copy of the counterclaim, the defendant making the counterclaim may apply to the Court for judgment by default.

(6) No application may be made under paragraph (5) against the plaintiff in any such action as is referred to in rule 2(1)(a).

(7) An application to the Court under this rule must be made by motion and if, on the hearing of the motion, the Court is satisfied that the applicant's claim is well founded it may give judgment for the claim with or without a reference to the Registrar and may at the same time order the property against which the action or; as the case may be, counterclaim is brought to be appraised and sold and the proceeds to be put into court or may make such other order as it thinks just.

(8) In default actions in rem evidence may, unless the Court otherwise orders, be given by affidavit without any order or direction in that behalf.

(9) The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this rule.

(10) Order 13 and Order 19 (except rule 1) shall not apply to actions in rem.

[E.r. 21]

Order for sale of ship: determination of priority of claims

22.—(1) Where in an action in rem against a ship the Court has ordered the ship to be sold, any party who has obtained or obtains judgment against the ship or proceeds of sale of the ship may—

(a) in a case where the order for sale contains the further order referred to in paragraph (2), after the expiration of the period specified in the order under paragraph (2)(a), or

(b) in any other case, after obtaining judgment,

apply to the Court by motion for an order determining the order of priority of the claims against the proceeds of sale of the ship.

(2) Where in an action in rem against a ship the Court orders the ship to be sold, it may further order—

(a) that the order of priority of the claims against the proceeds of sale of the ship shall not be determined until after the expiration of 90 days, or of such other period as the Court may specify, beginning with the day on which the proceeds of sale are paid into court;

(b) that any party to the action or to any other action in rem against the ship or the proceeds of sale thereof may apply to the Court in the action to which he is a party to end the period specified in the order;

(c) that within 7 days after the date of payment into court of the proceeds of sale the marsal shall send for publication in Lloyd's List and Shipping Gazette and such other newspaper, if any, as the Court may direct, a notice complying with paragraph (3).

(3) The notice referred to in paragraph (2)(c) must state—

(a) that the ship (naming her) has peen sold by order or the High Court in an action in rem, identifying the action;

(b) that the gross proceeds of the sale, specifying the amount thereof, have been paid into court;

(c) that the order of priority of the claims against the said proceeds will not be determined until after the expiration of the period (specifying it) specified in the order for sale; and

(d) that any person with a claim against the ship or the proceeds of sale thereof, on which he intends to proceed to judgment should do so before the expiration of that period.

(4) The marshal must lodge in the Central Office a copy of each newspaper in which the notice referred to in paragraph (2)(c) appeared.

(5) The expenses incurred by the marshal in complying with an order of the Court under this rule shall be included in his expenses relating to the sale of the ship.

(6) An application to the Court to extend the period referred to in paragraph (2)(a) must be made by motion, and a copy of the notice of motion must, at least 3 days before the day fixed for the hearing thereof, be served on each party who has begun an action in rem against the ship or the proceeds of sale thereof.

(7) In this rule “the Court” means the judge in person.

[E.r. 22]

Appraisement and sale of property

23.—(1) A commission for the appraisement and sale of any property under an order of the Court shall not be issued until the party applying for it has filed a praecipe in Form No. 11 in Appendix B.

(2) Such a commission must, unless the Court otherwise orders, be executed by the marshal and must be in Form No. 12 in Appendix B.

(3) A commission for appraisement and sale shall not be executed until an undertaking in writing satisfactory to the marshal to pay the fees and expenses of the marshal on demand has been lodged in the marshal's office.

(4) The marshall shall pay into court the gross proceeds of the sale of any property sold by him under a commission for sale and shall bring into court the account relating to the sale (with vouchers in support) for taxation.

(5) On the taxation of the marshal's account relating to a sale any person interested in the proceeds of the sale shall be entitled to be heard, and any decision of the Registrar made on the taxation to which objection is taken may be reviewed in the same manner and by the same persons as any decision made in taxation proceedings under Order 62, and rules 35 to 37 of that Order shall apply accordingly with the necessary modifications.

[E.r. 23]

Undertakings as to expenses, etc.

23A.—(1) Every undertaking under rule 8(3), 10(3); 13(7) or 23(3) shall be given in writing to the satisfaction of the marshal.

(2) Where a party is required by rule 8(3), 10(3), 13(7) or 23(3) to give to the marshal an undertaking to pay any fees or expenses, the marshal may accept instead of an undertaking the deposit with him of such sum as he considers reasonable to meet those fees and expenses.

(3) The Court may on the application of any party who is dissatisfied with a direction or determination of the marshal under rule 13(7) of this rule, vary or revoke the direction or determination.

[E.r. 23A]

Payment into and out of court

24.—(1) Order 22 (except rules 3, 4, S and 11) shall apply in relation to an Admiralty action as it applies to an action for a debt or damages.

(2) Subject to paragraphs (3) and (4) money paid into court shall not be paid out except in pursuance of an order of the judge in person.

(3) The Registrar may, with the consent of the parties interested in money paid into court, order the money to be paid out to the person entitled thereto in the following cases, that is to say—

(a) where a claim has been referred to the Registrar for decision and all the parties to the reference have agreed to accept the Registrar's decision and to the payment out of any money in court in accordance with that decision;

(b) where property has been sold and the proceeds of sale thereof paid into court, and the parties are agreed as to the persons to whom the proceeds shall be paid and the amount to be paid to each of the persons;

(c) where in any other case there is no dispute between the parties.

(4) Where in an Admiralty action money has been paid into court pursuant to an order made under Order 29, rule 12, the Registrar may make an order under paragraph (3) of that rule for the money to be paid out to the person entitled thereto.

[E.r. 24]

Summons for directions

25.—(1) The time and place and mode of trial of an Admiralty action shall be settled by the judge on the hearing of a summons and such summons shall be served on the plaintiff within one month after the pleadings in the action are deemed to be closed, and in case the plaintiff shall not serve such summons within the time aforesaid, then any other party in the action may serve such summons, and on the hearing of such summons any party may apply for discovery including interrogatories, commissions for and examination of witnesses. Such summons shall not be necessary ii a consent be filed in the registry whereby the parties agree on the time, place and mode of trial.

(2) Unless a judge in person otherwise directs, the summons shall be heard by a judge in person.

(3) An order made on the summons shall determine whether the trial is to be without assessors or with one or more assessors.

[E.r. 25]

Fixing date for trial, etc.

26.—(1) The Court may at any stage of an action, either on an application made by summons by any party or by order made by virtue of rule 34, fix a date for the trial and vacate or alter any such date.

(2) Not later than 7 days after a date for the trial of the action has been fixed, the action must be set down for trial—

(a) where the date was fixed on an application made under paragraph (1), by the applicant;

(b) where the date was fixed by order made by virtue of rule 34, by the plaintiff.

Where the applicant or plaintiff does not, within the period fixed by this paragraph, set the action down for trial, any other party may set it down or an application may be made to the Court to dismiss the action for want of prosecution and, on the hearing of any such application, the Court may order the action to be dismissed accordingly or make such other order as it thinks just.

(3) Not less than 7 days before the date fixed for the trial, or such other period before that date as may be specified in general directions given by the Lord Chief Justice the party by whom the action was set down for trial must, unless the Court otherwise orders, file in the registry—

(a) if trial with one or more assessors has been ordered, a praecipe for his or their attendance, and

(b) three copies or, in the case of a trial with one or more assessors, four copies (if with one assessor) and five copies (if with two) of any pleadings, preliminary acts, notices given under rule 18(3) and statements filed under rule 18(4).

(4) If an action which has been set down for trial is settled or withdrawn it shall be the duty of all the parties to notify the Central Office of the fact without delay and take such steps as may be necessary to vacate the date fixed for the trial.

(5) Order 21, rule 2(4), Order 33, rule 4, and Order 34 (except rule 9) shall not apply to Admiralty actions.

[E.r. 26]

Stay of proceedings in collision, etc. actions until security given

27.  Where an action in rem, being an action to enforce any such claim as is referred to in rule 2(1)(a), is begun and a cross action in rem arising out of the same collision or other occurrence as the first mentioned action is subsequently begun, or a counterclaim arising out of that occurrence is made in the first mentioned action, then—

(a) if the ship in respect of or against which the first mentioned action is brought has been arrested or security given to prevent her arrest, but

(b) the ship in respect of or against which the cross action is brought or the counterclaim made cannot be arrested and security has not been given to satisfy any judgment given in favour of the party bringing the cross action or making the counterclaim,

the Court may stay proceedings in the first mentioned action until security is given to satisfy any judgment given in favour of that party.

[E.r. 27]

Inspection of ship, etc.

28.  Without prejudice to its powers under Order 29, rules 2 and 4, and Order 35, rule 5, the Court may, on the application of any party, make an order for the inspection by the assessors (if the action is tried with assesors), or by any party or witness, of any ship or other property, whether real or personal, the inspection of which may be necessary or desirable for the purpose of obtaining full information or evidence in connection with any issue in the action.

[E.r. 28]

Examination of witnesses and other persons

29.—(1) The court may make an order authorising the examination of a witness or person on oath before a judge sitting-in court as if for the trial bf the cause or matter, without that cause or matter having been set down for trial or called on for trial.

(2) The power conferred by paragraph (1) shall also extend to the making of an order, with the consent of the parties, providing for the evidence of a witness being taken as if before an examiner, but without an examiner actually being appointed or being present.

(3) Where an order is made under paragraph (2), it may make provision for any consequential matters and, subject to any provision so made, the following provisions shall have effect—

(a) the party whose witness is to be examined shall provide a shorthand writer to take down the evidence of the witness;

(b) any representative, being counsel or solicitor, of either of the parties shall have authority to administer the oath to the witness;

(c) the shorthand writer need not himself be sworn but shall certify in writing as correct a transcript of his notes of the evidence and deliver it to the solicitor for the party whose witness was examined, and that solicitor must file it in the registry;

(d) unless the parties otherwise agree or the Court otherwise orders, the transcript or a copy thereof shall, before the transcript is filed, be made available to the counsel or other persons who acted as advocates at the examination, and if any of those persons is of opinion that the transcript does not accurately represent the evidence he shall make a certificate specifying the corrections which in his opinion should be made therein, and that certificate must be filed with the transcript.

(4) In actions in which preliminary acts fall to be filed under rule 18, an order shall not be made under paragraph (1) authorising any examination of a witness before the preliminary acts have been filed, unless for special reasons the Court thinks fit so to direct.

(5) The Lord Chief Justice may appoint such number of barristers or solicitors as he thinks fit to act as examiners of the Court in connection with Admiralty causes and matters, and may revoke any such appointment.

[E.r. 30]

Trial as an Admiralty short cause

30.—(1) Where any defendant has entered an appearance in an Admiralty action, the plaintiff or that defendant may, within 7 days after the entry of the appearance, apply by summons, returnable before the Registrar, for an order that the action be tried as an Admiralty short cause.

(2) The summons shall be served on every other party to the action not less than 7 days before the hearing.

(3) On the hearing of the application the Registrar may, if he decides to make an order under paragraph (1)—

(a) exercise any power which could be exercised under Order 18, rule 21 or Order 75, rule 18(4), on an application for the trial of the action without pleadings or further pleadings,

(b) abridge the period within which a person is required or authorised by these rules to do any act in the proceedings and fix the period within which any notice under Order 38, rule 19, must be served,

(c) in the case of such an action as is referred to in rule 18(1), fix the time within which, notwithstanding the provisions of that rule, preliminary acts are to be lodged;

(d) require the parties to the action to make mutual discovery of documents notwithstanding that the action is ordered to be tried without pleadings,

(e) if the parties so agree, order that the evidence in support of their respective cases may he given in whole or in part by the production of documents or entries in books,

(f) give such directions as could be given on a summons for directions in the action; and

(g) fix a date for the trial of the action.

(4) The party taking out a summons under this rule shall include in it an application for such orders or directions as he desires the Registrar to make or give in the exercise of powers set out in paragraph (3), and any party on whom the summons is served shall, within 3 days after service of the summons on him give notice to every other party of any other order or direction he desires the Registrar to make or give as aforesaid and lodge a copy of such notice in the registry.

(5) An application for an order under Order 18, rule 21, that an Admiralty action be tried without pleadings or further pleadings shall be made by way of an application for an order under paragraph (1) and not otherwise.

(6) Where an order is made under paragraph (1), the writ or originating summons by which the action was begun shall be marked in the top left-hand corner “Admiralty Short Cause”.

(7) Any application subsequent to a summons under paragraph (1) and before judgment as to any matter capable of being dealt with on an interlocutory application in the action shall be made under the summons by 2 clear days' notice to the other party stating the grounds of the application.

[E.r. 31]

Further provisions with respect to evidence

31.—(1) Notwithstanding anything in Order 38, rule 6, rules 1 and 2 of that Order shall not apply to a reference to the Registrar.

(2) Unless the Court otherwise directs, Order 38, rule 19(1), shall not apply in relation to any statement which is admissible in evidence by virtue of section 1 or 2 of the Civil Evidence Act (Northern Ireland) 1971(5) and which an applicant for judgment in, default under rule 19 or 21 desires to give in evidence at the hearing of the motion by which the application for judgment is made.

(3) In any Admiralty action in which a summons for directions is required by virtue of rule 37(7) to be taken out, any notice under Order 38, rule 19, must, if given by the party who takes out that summons, be served with that summons and, if given by any other party, be served within 21 days after service of the summons for directions on him.

(4) In any proceedings on a reference to the Registrar any notice under Order 38, rule 19, must be served not less than 6 weeks before the day appointed for the hearing of the reference.

(5) On the day on which any party serves on any other party a notice under Order 38, rule 19, or a counter-notice under Order 38, rule 23, he must lodge two copies of the notice or counter-notice in the Central Office.

(6) Unless the Court otherwise directs, an affidavit for the purposes of rule 19(4), 21 or 37(2) may, except in so far as it relates to the service of a writ, contain statements of information or belief with the sources and grounds thereof.

[E.r. 32]

Proceedings for apportionment of salvage

32.—(1) Proceedings for the apportionment of salvage the aggregate amount of which has already been ascertained shall be assigned to the Queen's Bench Division and be begun by originating motion.

(2) The notice of such motion, together with the affidavits in support thereof, must be filed in the Central Office 7 days at least before the hearing of the motion, unless the Court gives leave to the contrary, and a copy of the notice and of the affidavits must be served on all the other parties to the proceedings before the originals are filed.

(3) On the hearing of the motion the judge may exercise any of the jurisdiction conferred by section 556 of the Merchant Shipping Act 1894.

[E.r. 33]

Filing and service of notice of motion

33.—(1) Notice of a motion in any action, together with the affidavits (if any) in support thereof, must be filed in the Central Office 3 days at least before the hearing of the motion unless the Court gives leave to the contrary.

(2) A copy of the notice of motion and of the affidavits (if any) in support thereof must be served on all the other parties to the proceedings before the originals are filed.

[E.r. 34]

Agreement between solicitors may be made order of court

34.  Any agreement in writing between the solicitors of the parties to a cause or matter, dated and signed by those solicitors, may, if the Registrar thinks it reasonable and such as a judge would under the circumstances allow, be filed in the Central Office, and the agreement shall thereupon become an order of court and have the same effect as if such order had been made by a judge in person.

[E.r. 35]

Originating summons procedure

35.—(1) An originating summons in Admiralty may be issued out of the Central Office.

(2) Order 12 shall apply in relation to an originating summons in Admiralty to which appearance is required to be entered.

(3) Order 28, rule 2, shall apply in relation to Admiralty proceedings begun by originating summons.

(4) Rule 26 (except paragraph (3)) shall, with any necessary modifications, apply in relation to an Admiralty cause or matter begun by originating summons, and Order 28, rule 9, shall not apply to such a cause or matter.

[E.r. 36]

Limitation action: parties

36.—(1) In a limitation action the person seeking relief shall be the plaintiff and shall be named in the writ by his name and not described merely as the owner of, or as bearing some other relation to, a particular ship or other property.

(2) The plaintiff must make one of the persons with claims against him in respect of the casualty to which the action relates defendant to the action and may make any or all of the others defendants also.

(3) At least one of the defendants to the action must be named in the writ by his name but the other defendants may be described generally and not named by their names.

(4) The writ must be served on one or more of the defendants who are named by their names therein and need not be served on any other defendant.

(5) in this rule and rules 37, 38 and 39 “name” includes a firm name or the name under which a person carries on his business, and where any person with a claim against the plaintiff in respect of the casualty to which the action relates has described himself for the purposes of his claim merely as the owner of, or as bearing some other relation to, a ship or other property, he may be so described as defendant in the writ and, if so described; shall be deemed for the purposes of the rules aforesaid to have been named in the writ by his name.

[E.r. 37]

Limitation action: summons for decree or directions

37.—(1) Within 21 days after the entry of appearance by one of the defendants named by their names in the writ, or, if none of them enters an appearance, within 21 days after the time limited for appearing, the plaintiff, without serving a statement of claim, must take out a summons returnable in chambers before the Registrar asking for a decree limiting his liability or, in default of such a decree, for directions as to the further proceedings in the action.

(2) The summons must be supported by an affidavit or affidavits proving—

(a) the plaintiff's case in the action, and

(b) if none of the defendants named in the writ by their names has entered an appearance, service of the writ on at least one of the defendants so named.

(3) The affidavit in support of the summons must state—

(a) the names of all the persons who, to the knowledge of the plantiff, have claims against him in respect of the casualty to which the action relates, not being defendants to the action who are named in the writ by their names, and

(b) the address of each of those persons, if known to the plaintiff.

(4) The summons and every affidavit in support thereof must, at least 7 clear days before the hearing of the summons, be served on any defendant who has entered an appearance.

(5) On the hearing of the summons the Registrar, if it appears to him that it is not disputed that the plaintiff has a right to limit his liability, shall make a decree limiting the plaintiff's liability and fix the amount to which the liability is to be limited.

(6) On the hearing of the summons the Registrar, if it appears to him that any defendant has not sufficient information to enable him to decide whether or not to dispute that the plaintiff has a right to limit his liability, shall give such directions as appear to him to be appropriate for enabling the defendant to obtain such information and shall adjourn the heating.

(7) If on the hearing or resumed hearing of the summons the Registrar does not make a decree limiting the plaintiff's liability, he shall give such directions as to the further proceedings in the action as appear to him to be appropriate including a direction fixing the period within which any notice under Order 38, rule 19, must be served.

(8) Any defendant who, after the Registrar has given directions under paragraph (7), ceases to dispute the plaintiff's right to limit his liability must forthwith file a notice to that effect in the Central Office and serve a copy on the plaintiff and on any other defendant who has entered an appearance.

(9) If every defendant who disputes the plaintiff's right to limit his liability serves a notice on the plaintiff under paragraph (8), the plaintiff may take out a summons returnable in chambers before the Registrar asking for a decree limiting his liability; and paragraphs (4) and (5) shall apply to a summons under this paragraph as they apply to a summons under paragraph (1).

[E.r. 38]

Limitation action: proceedings under decree

38.—(1) Where the only defendants in a limitation action are those named in the writ by their names and all the persons so named have either been served with the writ or entered an appearance, any decree in the action limiting the plaintiff's liability (whether made by the Registrar or on the trial of the action)—

(a) need not be advertised, but

(b) shall only operate to protect the plaintiff in respect of claims by the persons so named or persons claiming through or under them.

(2) In any case not falling within paragraph (1), any decree in the action limiting the plaintiff's liability (whether made by the Registrar or on the trial of the action)—

(a) shall be advertised by the plainttiff in such manner and within such time as may be provided by the decree;

(b) shall fix a time within which persons with claims against the plaintiff in respect of the casualty to which the action relates may enter an appearance in the action (if they have not already done so) and file their claims, and, in cases to which rule 39 applies, take out a summons, if they think fit, to set the order aside.

(3) The advertisement to be required under paragraph (2)(a) shall, unless for special reasons the Registrar or judge thinks fit otherwise to provide, be a single advertisement in each of three newspapers specified in the decree, identifying the action, the casualty and the relation of the plaintiff thereto (whether as owner of a ship involved in the casualty or otherwise as the case may be), stating that the decree has been made and specifying the amounts fixed thereby as the limits of the plaintiff's liability; and the time allowed thereby for the entering of appearances, the filing of claims and the taking out of summonses to set the decree aside.

The plaintiff must Within the time fixed under paragraph (2)(b) file in the registry a copy of each newspaper in which the advertisement under paragraph (2)(a) appears.

(4) The time to be allowed under paragraph (2)(b) shall, unless for special reasons the Registrar or judge thinks fit otherwise to provide, be not less than 2 months from the latest date allowed for the appearance of the advertisements; and after the expiration of the time so allowed, no appearance may be entered, claim filed or summons taken out to set aside the decree except with the leave of the Registrar or, on an appeal, of the judge.

(5) Save as aforesaid, any decree limiting the plaintiff's liability (whether made by the Registrar or on the trial of the action) may make any such provision as is authorised by section 504 of the Merchant Shipping Act 1894.

[E.r. 39]

Limitation action: proceedings to set aside decree

39.—(1) Where a decree limiting the plaintiff's liability (whether made by the Registrar or on the trial of the action) fixes a time in accordance with rule 38(2), any person with a claim against the plaintiff in respect of the casualty to which the action relates, who—

(a) was not named by his name in the writ as a defendant to the action, or

(b) if so named, neither was served with the writ nor entered an appearance,

may, within that time, after entering an appearance, take out a summons returnable in chambers before the Registrar asking that the decree be set aside.

(2) The summons must be supported by an affidavit or affidavits showing that the defendant in question has a bona fide claim against the plaintiff in respect of the casualty in question and that he has sufficient prima facie grounds for the contention that the plaintiff is not entitled to the relief given him by the decree.

(3) The summons and every affidavit in support thereof must, at least 7 clear days before the hearing of the summons, be served on the plaintiff and any defendant who has entered an appearance.

(4) On the hearing of the summons the Registrar, if he is satisfied that the defendant in question has a bona fide claim against the plaintiff and sufficient prima facie grounds for the contention that the plaintiff is not entitled to the relief given him by the decree, shall set the decree aside and give such directions as to the further proceedings in the action as appear to him to be appropriate.

[E.r. 40]

References to Registrar

40.—(1) Any party (hereafter in this rule referred to as the “ claimant”) making a claim which is referred to the Registrar for decision must, within 2 months after the order is made, or, in a limitation action, within such other period as the Court may direct, file his claim and, unless the reference is in such an action, serve a copy of the claim on every other party.

(2) At any time after the claimant's claim has been filed or, where the reference is in a limitation, action, after the expiration of the time limited by the Court for the filing of claims but, in any case, not less than 28 days before the day appointed for the hearing of the reference, any party to the cause or matter may apply to the Registrar by summons for directions as to the proceedings on the reference, and the Registrar shall give such directions, if any, as he thinks fit including, without prejudice to the generality of the foregoing words, a direction requiring any party to serve on any claimant, within such period as the Registrar may specify, a defence to that claimant's claim.

(3) The reference shall be heard on a day appointed by the Registrar and, unless the reference is in a limitation action or the parties to the reference consent to the appointment of a particular day, the appointment must be made by order on an application by summons made by any party to the cause or matter.

(4) An appointment for the hearing of a reference shall not be made until after the claimant has filed his claim or, where the reference is in a limitation action, until after the expiration of the time limited by the Court for the filing of claims.

(5) Not later than 7 days after an appointment for the hearing of a reference has been made the claimant or, where the reference is in a limitation action, the plaintiff must enter the reference for hearing by lodging in the registry by praecipe requesting the entry of the reference in the list for hearing on the day appointed.

(6) Not less than 14 days before the day appointed for the hearing of the reference the claimant must file—

(a) a list, signed by him and every other party, of the items (if any) of his claim which are not disputed, stating the amount (if any) which he and the other parties agree should be allowed in respect of each such item, and

(b) such affidavits or other documentary evidence as is required to support the items of his claim which are disputed;

and, unless the reference is in a limitation action, he must at the same time serve on every other party a copy of every document filed under this paragraph.

(7) If the claimant fails to comply with paragraph (1) or (6)(b); the Court may, on the application of any other party to the cause or matter, dismiss the claim.

[E.r. 41]

Hearing of reference

41.—(1) The Registrar may adjourn the hearing of a reference from time to time as he thinks fit.

(2) At or before the hearing of a reference, the Registrar may give a direction limiting the witnesses who may be called, whether expert witnesses or not, but any such direction may, on sufficient cause being shown, be revoked or varied by a subsequent direction given at or before the hearing.

(3) Subject to paragraph (2), evidence may be given orally or by affidavit or in such other manner as may be agreed upon.

(4) When the hearing of the reference has been concluded, the Registrar shall—

(a) reduce in writing his decision on the questions arising in the reference (including any order as to costs) and cause it to be filed;

(b) cause to be filed either with his decision or subsequently such statement (if any) on the grounds of the decision as he thinks fit; and

(c) send to the parties to the reference notice that he has done so.

(5) Where no statement of the grounds of the Registrar's decision is filed with his decision and no intimation has been given by the Registrar that he intends to file such a statement later, any party to the reference may, within 14 days after the filing of the decision, make a written request to the Registrar to file such a statement.

[E.r. 42]

Objection to decision on reference

42.—(1) Any party to a reference to the Registrar may, by motion in objection, apply to a judge in court to set aside or vary the decision of the Registrar on the reference, but notice of the motion, specifying the points of objection to the decision, must be filed within 14 days after the date on which notice of the filing of the decision was sent to that party under rule 41(4) or, if a notice of the filing of a statement of the grounds of the decision was subsequently sent to him thereunder, within 14 days after the date on which that notice was sent.

(2) The decision of the Registrar shall be deemed to be given on the date on which it is filed, but, unless he or the judge otherwise directs, the decision shall not be acted upon until the time has elapsed for filing notice of a motion in objection thereto, or while such a motion is pending or remains undisposed of.

(3) A direction shall not be given under paragraph (2) without the parties being given an opportunity of being heard, but may, if the Registrar announces his intended decision at the conclusion of the hearing of the reference, be incorporated in his decision as reduced to writing under rule 41(4).

[E.r. 43]

Drawing up and entry of judgments and orders

43.  Every judgment given or order made in an Admiralty cause or matter shall be drawn up in the Central Office and shall be entered by an officer of the Central Office in the book kept for the purpose.

[E.r. 45]

ORDER 76 CONTENTIOUS PROBATE PROCEEDINGS

Application and interpretation

1.—(1) This Order applies to probate causes and matters, and the other provisions of these Rules apply to those causes and matters subject to the provisions of this Order.

(2) In these Rules “probate action” means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business.

(3) In this Order—

“the Order” means the Administration of Estates (Northern Ireland) Order 1979(6);

"the Office;, means the Probate and Matrimonial Office;

“will” includes a codicil.

[E.r. 1]

Requirements in connection with issue of writ

2.—(1) A probate action must be begun by writ, issued out of the Office.

(2) Before a writ beginning a probate action is issued it must be indorsed with—

(a) a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased to which the action relates; and

(b) a memorandum signed by the Master showing that the writ has been produced to him for examination.

[E.r. 2]

Parties to action for revocation of grant

3.  Every person who is entitled or claims to be entitled to administer the estate of a deceased person under or by virtue of an unrevoked grant of probate of his will or letters of administration of his estate shall be made a party to any action for revocation of the grant.

[E.r. 3]

Lodgment of grant in action for revocation

4.—(1) Where, at the commencement of ail action for the revocation of a grant of probate of the will or letters of administration of the estate of a deceased person, the probate or letters of administration as the case may be, have not been lodged in the Office, then—

(a) if the action is commenced by a person to whom the grant was made, he shall lodge the probate or letters of administration in the Office within 7 days after the issue of the writ;

(b) if any defendant to the action has the probate or letters of administration in his possession or under his control he shall lodge it or them in the Office within 14 days after the service of the writ upon him.

(2) Any person who fails to comply with paragraph (1) may, on the application of any party to the action, be ordered by the Court to lodge the probate or letters of administration in the Office within a specified time; and any person against whom such an order is made shall not be entitled to take any step in the action without the leave of the Court until he has complied with the order.

[E.r. 4]

Affidavit of testamentary scripts

5.—(1) Unless the Court otherwise directs, the plaintiff and every defendant who has entered an appearance in a probate action must swear an affidavit—

(a) describing any testamentary scripts of the deceased person whose estate is the subject of the action of which he has any knowledge or, if such be the case, stating that he knows of no such script, and

(b) if any such script of which he has knowledge is not in his possession or under his control, giving the name and address of the person in whose possession or under whose control it is or, if such be the case, stating that he does not know the name or address of that person.

(2) Any affidavit required by this rule (together with any testamentary script referred to therein which is in the possession or under the control of the deponent) must be filed in the Office within 14 days after the entry of appearance by a defendant to the action or, if no defendant enters an appearance therein and the Court does not otherwise direct, before the plaintiff sets down the action.

(3) Where any testamentary script required by this rule to be filed or any part thereof is written in pencil, then, unless the Court otherwise directs, a facsimile copy of that script, or of the page or pages thereof containing the part written in pencil, must also be filed and the words which appear in pencil in the original must be underlined in red ink in the copy.

(4) Except with the leave of the Court, a party to a probate action shall not be allowed to inspect an affidavit filed, or any testamentary script filed by any other party to the action under this rule, unless and until an affidavit sworn by him containing the information referred to in paragraph (1) has been filed.

(5) In this rule “testamentary script” means a will or draft thereof, written instructions for a will made by or at the request or under the instructions of the testator and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed.

[E.r. 5]

Default of appearance

6.—(1) Order 13 shall not apply in relation to a probate action.

(2) Where any of several defendants to a probate action fails to enter an appearance, the plaintiff upon filing an affidavit proving due service of the writ, or notice of the writ, on that defendant may, after the time limited for appearing, proceed with the action as if that defendant had entered an appearance.

(3) Where the defendant, or all the defendants, to a probate action, fails or (ail to enter an appearance, then, unless on the application of the plaintiff the Court orders the action to be discontinued, the plaintiff may after the time limited for appearing by the defendant set down the action for trial.

(4) Before setting down the action for trial the plaintiff must file an affidavit proving due service of the writ, or notice of the writ, on the defendant and, if no statement of claim is indorsed on the writ, he must lodge a statement of claim in the Office.

[E.r. 6]

Service of statement of claim

7.  The plaintiff in a probate action must, unless the Court gives leave to the contrary or unless a statement of claim is indorsed on the writ, serve a statement of claim on every defendant who enters an appearance in the action and must do so before the expiration of 6 weeks after entry of appearance by that defendant or of 8 days after the filing by that defendant of an affidavit under rule 5, whichever is the later.

[E.r. 7]

Counterclaim

8.—(1) Notwithstanding anything in Order 15, rule 2(1), a defendant to a probate action who alleges that he has any claim or is entitled to any relief or remedy in respect of any matter relating to the grant of probate of the will, or letters of administration of the estate, of the deceased person which is the subject of the action must add to his defence a counterclaim in respect of that matter.

(2) If the plaintiff fails to serve a statement of claim, any such defendant may, with the leave of the Court, serve a counterclaim and the action shall then proceed as if the counterclaim were the statement of claim.

[E.r. 8]

Contents of pleadings

9.—(1) Where the plaintiff in a probate action disputes the interest of a defendant he must allege in his statement of claim that he denies the interest of that defendant.

(2) In a probate action in which the interest by virtue of which a party claims to be entitled to a grant of letters of administration is disputed, the party disputing that interest must show in his pleading that if the allegations made therein are proved he would be entitled to an interest in the estate.

[E.r. 9]

Default of pleadings

10.—(1) Order 19 shall not apply in relation to a probate action.

(2) Where any party to a probate action fails to serve on any other party a pleading which he is required by these Rules to serve on that other party, then, unless the Court orders the action to be discontinued or dismissed, that other party may, after the expiration of the period fixed by or under these rules for service of the pleading in question, set down the action for trial.

[E.r. 10]

Discontinuance and dismissal

11.—(1) Order 21 shall not apply in relation to a probate action.

(2) At any stage of the proceedings in a probate action the Court may, on the application of the plaintiff or of any party to the action who has entered an appearance therein, order the action to be discontinued or dismissed on such terms as to costs or otherwise as it thinks just, and may further order that a grant of probate of the will or letters of administration of the estate, of the deceased person, as the case may be, which is the subject of the action, be made to the person entitled thereto.

(3) An application for an order under this rule may be made by summons.

[E.r. 11]

Compromise of action: trial on affidavit evidence

12.  Where, whether before or after the service of the defence in a probate action, the parties to the action agree to a compromise, the Court may order the trial of the action on affidavit evidence.

[E.r. 12]

Application for order to bring in will, etc.

13.—(1) Any application in a probate action under Article 15 of the Order for—

(a) an order requiring a person to bring a will or other testamentary paper into the Office shall be made by summons in the action, which must be served on the person against whom the order is sought;

(b) the issue of a subpoena requiring a person to bring into the Office a will or other testamentary paper may be made to the Master ex parte and must be supported by an affidavit setting out the grounds of the application.

(2) Any person against whom a subpoena is issued under the said Article 15, and who denies that the will or other testamentary paper referred to in the subpoena is in his possession or under his control may file an affidavit to that effect.

[E.r. 14]

Administration pendente lite

14.—(1) An application under Article 6 of the Order for an order for the grant of administration may be made by summons.

(2) Where an order for a grant of administration is made under the said Article 6, Order 30, rules 2, 4 and 6 and (subject to paragraph (3) of the said Article) rule 3, shall apply as if the administrator were a receiver appointed by the court.

[E.r. 15]

Probate counterclaim in other proceedings

15.—(1) In this rule “ probate counterclaim” means a counterclaim in any action other than a probate action by which the defendant claims any such relief as is mentioned in rule 1(2).

(2) Subject to the following paragraphs, this Order shall apply with the necessary modifications to a probate counterclaim as it applies to a probate action.

(3) A probate counterclaim must contain a statement of the nature of the interest of the defendant and of the plaintiff in the estate of the deceased to which the counterclaim relates.

(4) Before it is served a probate counterclaim must be indorsed with a memorandum signed by the Master showing that the counterclaim has been produced to him for examination.

(5) Unless an application under Order 15, rule 5(2), is made within 7 days after the service of a probate counterclaim for the counterclaim to be struck out and the application is granted, the Court shall, if necessary of its own motion, order the transfer of the action to the Family Division.

[E.r. 16]

ORDER 77 PROCEEDINGS BY AND AGAINST THE CROWN

Application and interpretation

1.—(1) These rules apply to civil proceedings to which the Crown is a party subject to the following rules of this Order.

(2) In this Order—

“the Act” means the Crown Proceedings Act 1947(7) as it applies in Northern Ireland in relation to Her Majesty's Government in the United Kingdom and in relation to Her Majesty's Government in Northern Ireland;

“civil proceedings by the Crown”, “civil proceedings against the Crown” and “civil proceedings by or against the Crown” have the same respective meanings as in Part II of the Act and do not include any of the proceedings specified in section 23(3) of that Act;

“civil proceedings to which the Crown is a party” has the same meaning as it has for the purposes of Part IV of the Act, by virtue of section 38(4) of that Act;

“order against the Crown” means any order (including an order for costs) made in any civil proceedings by or against the Crown or in any proceedings on the Crown side of the Queen's Bench Division, or in connection with any arbitration to which the Crown is a party, in favour of any person against the Crown or against a government department or against an officer of the Crown as such;

“order” includes a judgment, decree, rule, award or declaration.

[E.r. 1]

Particulars to be included in indorsement of claim

2.—(1) In the case of a writ which begins civil proceedings against the Crown the indorsement of claim required by Order 6, rule 2, shall include a statement of the circumstances in which the Crown's liability is alleged to have arisen and as to the government department and officers of the Crown concerned.

(2) If in civil proceedings against the Crown a defendant considers that the writ does not contain a sufficient statement as required by this rule, he may, before the expiration of the time limited for appearing, apply to the plaintiff by notice for a further and better statement containing such information as may be specified in the notice.

(3) Where a defendant gives a notice under this rule, the time limited for appearing shall not expire until 7 days after the defendant has notified the plaintiff in writing that the defendant is satisfied with the statement supplied in compliance with the notice or 7 days after the Court has, on the application of the plaintiff by summons served on the defendant not less than 7 days before the return day, decided that no further information as to the matters referred to in paragraph (1) is reasonably required.

[E.r. 3]

Service on the Crown

3.—(1) Order 10, Order 11 and any other provision of these Rules relating to service out of the jurisdiction shall not apply in relation to the service of any process by which civil proceedings against the Crown are begun.

(2) Personal service of any document required to be served on the Crown for the purpose of or in connection with any civil proceedings is not requisite; but where the proceedings are by or against the Crown service on the Crown must be effected—

(a) by leaving the document at the office of the person who is in accordance with section 18 of the Act to be served, or of any agent whom that person has nominated for the purpose, but in either case with a member of the staff of that person or agent, or

(b) by posting it in a prepaid envelope addressed to the person who is to be served as aforesaid or to any such agent as aforesaid.

(3) In relation to the service of any document required to be served on the Crown for the purpose of or in connection with any civil proceedings by or against the Crown, Order 65, rules 5 and 9, shall not apply, and Order 65, rule 7, shall apply as if the reference therein to rules 2 and 5(1)(a) of that Order were a reference to paragraph (2)(a) of this rule.

[E.r. 4]

Counterclaim and set-off

4.—(1) Notwithstanding Order 15, rule 2, and Order 18, rules 17 and 18, a person may not in any proceedings by the Crown make any counterclaim or plead a set-off if the proceedings are for the recovery of, or the counterclaim or set-off arises out of a right or claim to repayment in respect of, any taxes, duties or penalties.

(2) Notwithstanding Order 15, rule 2, and Order 18, rules 17 and 18, no counterclaim may be made, or set-off pleaded, without the leave of the Court, by the Crown in proceedings against the Crown, or by any person in proceedings by the Crown—

(a) if the Crown is sued or sues in the name of a government department and the subject-matter of the counterclaim or set-off does not relate to that department; or

(b) if the Crown is sued or sues in the name of the Attorney-General.

(3) Any application for leave under this rule must be made by summons.

[E.r. 6]

Summary judgment

5.—(1) No application against the Crown shall be made under Order 14, rule 1, or Order 86, rule 1, in any proceedings against the Crown nor under Order 14, rule 5, in any proceedings by the Crown.

(2) Where an application is made by the Crown under Order 14, rule 1, Order 14, rule 5, or Order 86, rule 1, the affidavit required in support of the application must be made by—

(a) the solicitor acting for the Crown, or

(b) an officer duly authorised by the solicitor so acting or by the department concerned;

and the affidavit shall be sufficient if it states that in the deponent's belief the applicant is entitled to the relief claimed and there is no defence to the claim or part of a claim to which the application relates or no defence except as to the amount of any damages claimed.

[E.r. 7]

Summary applications to the Court in certain revenue matters

6.—(1) This rule applies to applications under section 14 of the Act.

(2) An application to which this rule applies may be made by originating motion or originating summons.

(3) The person from whom any account or information or payment is claimed or by whom any books are required to be produced must be made respondent or, where the application is made by originating summons, defendant to the application.

(4) An originating summons or notice of originating motion under this rule—

(a) must be entitled in the matter or matters out of which the need for the application arises and in the matter of the Act; and

(b) must refer to the statutory provision under which the account or information or payment or the production of books is claimed and, where information is claimed, must show (by appropriate questions or otherwise) what information is required.

(5) Upon any application to which this rule applies an affidavit by a duly authorised officer of the government department concerned setting out the state of facts upon which the application is based and stating that he has reason to think that those facts exist shall be evidence of those facts; and if evidence is filed disputing any of those facts, further evidence may be filed, and the Court may either decide the matter upon the affidavits (after any cross-examination that may have been ordered) or may direct that it be decided by oral evidence in court.

(6) An order in favour of the Crown on an application to which this rule applies shall, unless the Court otherwise determines, name a time within which each of its terms is to be complied with.

(7) For the purpose of Order 59, rule 4, all orders made on applications to which this rule applies shall be deemed to be interlocutory.

(8) Nothing in this rule shall, in relation to any case in which the only relief claimed by the Crown is the payment of money, be construed as requiring the Crown to proceed by way of an application to which this rule applies or as preventing the Crown from availing itself of any other procedure which is open to it under these rules.

[E.r. 8]

Joinder of Commissioners of Inland Revenue under Order 15 rule 6(2)(b)(ii)

7.  Nothing in Order 15, rule 6(2)(b)(ii), shall be construed as enabling the Commissioners of Inland Revenue to be added as a party to any cause or matter except with their consent signified in writing or in such manner as may be authorised.

[E.r. 8A]

Judgment in default

8.—(1) Except with the leave of the Court, no judgment in default of appearance or of pleading shall be entered against the Crown in civil proceedings against the Crown or in third party proceedings against the Crown.

(2) Except with the leave of the Court, Order 16, rule 5(1)(a), shall not apply in the case of third party proceedings against the Crown.

(3) An application for leave under this rule may be made by summons or, except in the case of an application relating to Order 16, rule 5, by motion; and the summons or, as the case may be, notice of the motion must be served not less than 7 days before the return day.

[E.r. 9]

Third party notices

9.—(1) Notwithstanding anything in Order 16, a third party notice (including a notice issuable by virtue of Order 16, rule 9) for service on the Crown shall not be issued without the leave of the Court, and the application for the grant of such leave must be made by summons, and the summons must be served on the plaintiff and the Crown.

(2) Leave to issue such a notice for service on the Crown shall not be granted unless the Court is satisfied that the Crown is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the departments and officers of the Crown concerned.

[E.r. 10]

Interpleader: application for order against Crown

10.  No order shall be made against the Crown under Order 17, rule 3(3), except upon an application by summons served not less than 7 days before the return day.

[E.r. 11]

Discovery and interrogatories

11.—(1) Order 24, rules 1 and 2, shall not apply in civil proceedings to which the Crown is a party.

(2) In any civil proceedings to which the Crown is a party any order of the Court made under the powers conferred by section 28(1) of the 1947 Act shall be construed as not requiring the disclosure of the existence of any document the existence of which it would, in the opinion of a Minister of the Crown, be injurious to the public interest to disclose.

(3) Where in any such proceedings an order of the Court directs that a list of documents made in answer to an order for discovery against the Crown shall be verified by affidavit, the affidavit shall be made by such officer of the Crown as the Court may direct.

(4) Where in any such proceedings an order is made under the said section 28 for interrogatories to be answered by the Crown, the Court shall direct by what officer of the Crown the interrogatories are to be answered.

(5) In any proceedings by the Crown for the enforcement of any right tor the enforcement of which proceedings by way of English information might have been taken if the Act had not passed the Crown may serve interrogatories or further interrogatories (except any third or subsequent set of interrogatories) under Order 26 without the leave of the Court.

[E.r. 12]

Place of trial

12.—(1) Civil proceedings by or against the Crown shall not, except with the consent of the Crown, be directed to be tried elsewhere than at the Royal Courts of Justice, Belfast.

(2) Nothing in any of these Rules shall prejudice the right of the Crown to demand a local venue for the trial of any proceedings in which the Attorney General has waived his right to a trial at bar.

[E.r. 13]

Evidence

13.—(1) Civil proceedings against the Crown may be instituted under Order 39, rule 15; in any case in which the Crown is alleged to have an interest or estate in the honour, title, dignity or office or property in question.

(2) For the avoidance of doubt it is hereby declared that any powers exercisable by the Court in regard to the taking of evidence are exercisable in proceedings by or against the Crown as they are exercisable in proceedings between subjects.

[E.r. 14]

Enforcement and satisfaction of orders

14.—(1) Nothing in Orders 45 to 52 shall apply in respect of any order against the Crown.

(2) An application under the proviso to subsection (1) of section 25 of the Act for a direction that a separate certificate shall be issued under that subsection with respect to the costs (if any) ordered to be paid to the applicant, may be made to the Court ex parte without summons.

[E.r. 15]

Attachment of debts, etc.

15.  Every application to the Court for an order under section 27(1) of the Act restraining any person from receiving money payable to him by the Crown and directing payment of the money to the applicant or some other person must be made by summons served at least 4 days before the return day on the Crown and, unless the Court otherwise orders, on the person to be restrained or his solicitor; and the application must be supported by an affidavit setting out the facts giving rise to it, and in particular identifying the particular debt from the Crown in respect of which it is made.

[E.r. 16]

Proceedings relating to postal packets

16.—(1) An application by any person under section 9(3) of the Act for leave to bring proceedings in the name of the sender or addressee of a postal packet or his personal representatives must be made by originating summons in the Queen's Bench Division.

(2) The Crown and the person in whose name the applicant seeks to bring proceedings must be made defendants to a summons under this rule.

(3) No appearance need be entered to a summons under this rule.

[E.r. 17]

Applications under ss. 17 and 29 of the Act

17.—(1) Every application to the Court under section 17(4) of the Act must be made by summons.

(2) An application such as is referred to in section 29(2) of the Act may be made to the Court at any time before trial by motion or summons, or may be made at the trial of the proceedings.

[E.r. 18]

ORDER 78 REMITTAL AND REMOVAL OF PROCEEDINGS

Interpretation and assignment of proceedings

1.—(1) In this Order :—

“remittal” means remittal from the High Court to a county court under section 31 of the Act;

“removal” means removal from a county court to the High Court, under section 31 of the Act.

(2) Where proceedings commenced in a county court by equity civil bill are removed to the High Court they shall be assigned to the Chancery Division.

Remittal and removal of proceedings

2.—(1) Any party may apply for the remittal or removal of any civil proceedings by summons to be served on every other party to the proceedings.

(2) The following particulars must be endorsed on the back of the summons :—

(a) in an application for the remittal of proceedings, the county court, or courts if more than one, in which the proceedings could apart from any limitation by reason of amount or value or annual value have been commenced;

(b) in an application for the remittal of proceedings, the county court to which it is proposed by the applicant, or has been agreed by the parties, that the proceedings should be remitted;

(c) in an application for the removal of proceedings, the county court in which the proceedings are pending;

(d) which, if any, parties concur in the application and to what extent;

(e) where the whole of the proceedings are not to be remitted or removed the part to which the application relates;

(f) the nature of the proceedings;

(g) the stage which has been reached in the proceedings; and

(h) the grounds on which the order is sought.

(3) The said summons shall be supported by an affidavit verifying the particulars endorsed on the summons and stating any other facts grounding the application.

Remittal and removal on consent

3.  Where all parties consent to the remittal or removal of any proceedings any party may apply ex parte on a consent executed by the parties or their solicitors setting forth :—

(a) the county court to or from which it has been agreed that the proceedings should be remitted or removed;

(b) where the whole of the proceedings are not to be remitted or removed the part to which the consent relates;

(c) the nature of the proceedings; and

(d) the terms of any order as to costs which has been agreed upon.

Opposing an application for remittal or removal

4.  A party opposing the remittal or removal of any proceedings may show by affidavit or, with the leave of the Court, by oral evidence, that the proceedings or any part thereof ought not to be remitted or removed, as the case may be.

Reports of experts

5.  For the purpose of making or opposing any application under this Order a party may exhibit or adduce in evidence the reports of medical or other experts.

Service of affidavits and exhibits

6.  Every party shall serve on every other party to the proceedings a copy of every affidavit and exhibit intended to be used on the hearing of any application under this Order.

Directions

7.  An order for the removal of any proceedings may include such directions as to the further conduct of the proceedings as may be necessary and may direct that the action be set down for trial forthwith, with or without further pleadings.

Procedure on remittal

8.  Where an order is made for the remittal of any proceedings, the proper officer shall :—

(a) give notice of the remittal to every party to the proceedings and to the Accountant General;

(b) send a copy of the order of remittal and the original documents other than the affidavit referred to in rule 2(3) to the principal clerk for thy court to which the proceedings are to be remitted:

(c) upon receipt of the notice of remittal the Accountant General shall thereupon transfer to the county court to which the proceedings are to be remitted any sum of money paid into court under Order 22 in satisfaction of a claim or cause of action.

Procedure on removal

9.—(1) Where an order is made for the removal of any proceedings the proper officer shall send a copy of the order of removal to the chief clerk for the court from which the proceedings are to be removed.

(2) On receipt by the proper officer of the documents referred to in Order 22, rule 13, of the County Court Rules (Northern Ireland) 1976(8), that officer must forthwith :—

(a) file the said documents and make an entry of the filing thereof in the cause book;

(b) give notice to all the parties to the proceedings in the county court that the action is proceeding in the High Court and that the defendant is required to enter an appearance in the action in the appropriate office (naming it).

(3) The defendant must within 10 days after receipt of the notice referred to in rule 10 enter an appearance in accordance with Order 12, rules 1 to 4, and Order 12, rules 1, 2 and 4 shall apply as if the proceedings removed were an action begun by writ.

(4) The memorandum of appearance in an action begun in the county court and removed to the High Court shall be in Form No. 13 in Appendix A.

(5) The proceedings shall thereupon, subject to rules 7 and 10, continue as if they had been commenced in the court to which they have been removed.

(6) If the defendant, or any defendant (if more than one), fails to enter an appearance within the period prescribed by paragraph (3), the plaintiff may, with the leave of the court, enter judgment against the defendant or defendants, as the case may be, with costs.

Procedure on counterclaim

10.—(1) Where only the proceedings on a counterclaim are remitted or removed this Order shall apply as if the party setting up the counterclaim were the plaintiff and the party resisting it were the defendant, and references in this Order to the plaintiff and the defendant shall be construed accordingly.

(2) References in this Order to the plaintiff and the defendant shall, where the context so requires, be construed as references to the applicant and the respondent respectively.

ORDER 79

[No Order made]

ORDER 80 DISABILITY

Interpretation

1.  In this Order—

“patient” means a person suffering or appearing to be suffering from mental disorder as defined in section 7 of the Mental Health Act (Northern Ireland) 1961(9);

“person under disability” means a person who is a minor or a person who by reason of mental disorder within the meaning of the Mental Health Act (Northern Ireland) 1961 is incapable of managing or administering his property and affairs.

[E.r. 1]

Person under disability must sue, etc. by next friend or guardian, ad litem

2.—(1) A person under disability may not bring, or make a claim in, any proceedings except by his next friend and may not defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which bas been served on him, except by his guardian ad litem.

(2) Subject to the provision of these Rules, anything which in the ordinary conduct of any proceedings is required or authorised by a provision of these Rules to be done by a party to the proceedings shall or may, if the party is a person under disability, be done by his next friend or guardian ad litem.

(3) A next friend or guardian ad litem of a person under disability must act by a solicitor.

[E.r. 2]

Appointment of next friend or guardian ad litem

3.—(1) Except as provided by paragraph (3) or (4) or by rule 4, an order appointing a person next friend or guardian ad litem of a person under disability is not necessary.

(2) Where a person is authorised under the Lunacy Regulation (Ireland) Act 1871(10) to conduct legal proceedings in the name of a patient or on his behalf, that person shall be entitled to be next friend or guardian ad litem, as the cast, may be, of the patient in any proceedings to which his authority extends unless, in a case to which paragraph (3) or (4) or rule 4 applies, some other person is appointed by the Court under that paragraph or rule to be next friend or guardian ad litem, as the case may be; of the patient in those proceedings.

(3) Where a person has been or is next friend or guardian ad litem of a person under disability in any proceedings, no other person shall be entitled to act as such friend or guardian, as the case may be, of the person under disability in those proceedings unless the Court makes an order appointing him such friend or guardian in substitution for the person previously acting in that capacity.

(4) Where, after any proceedings have been begun, a party to the proceedings becomes a patient, an application must be made to the Court for the appointment of a person to be next friend or guardian ad litem, as the case may be, of that party.

(5) Except where the next friend or guardian ad litem, as the case may be, of a person under disability has been appointed by the Court—

(a) the name of any person shall not be used in a cause or matter as next friend of a person under disability,

(b) an appearance shall not be entered in a cause or matter for a person under disability, and

(c) a person under disability shall not be entitled to appear by his guardian ad litem on the hearing of a petition, summons or motion which, or notice of which, has been served on him,

unless and until the documents listed in paragraph (6) have been filed in the appropriate office.

(6) The documents referred to in paragraph (5) are the following—

(a) a written consent to be next friend or guardian ad litem, as the case may be, of the person under disability in the cause or matter in question given by the person proposing to be such friend or guardian;

(b) where the person proposing to be such friend or guardian of the person under disability, being a patient, is authorised to conduct the proceedings in the cause or matter in question in the name of the patient or on his behalf, an office copy, sealed with the official seal of the Office of Care and Protection, of the order or other authorisation made or given under the Lunacy Regulation (Ireland) Act 1871 by virtue of which he is so authorised; and

(c) except where the person proposing to be such friend or guardian of the person under disability, being a patient, is authorised as mentioned in sub-paragraph (b), a certificate made by the solicitor for the person under disability certifying—

(i) that he knows or believes, as the case may be, that the person to whom the certificate relates is a minor or a patient, giving (in the case of a patient) the grounds of his knowledge or belief; and

(ii) where the person under disability is a patient, that there is no person authorised as aforesaid; and

(iii) except where the person named in the certificate as next friend or guardian ad litem, as the case may be, is the Official Solicitor, that the person so named has no interest in the cause or matter in question adverse to that of the person under disability.

[E.r. 3]

Appointment of guardian where person under disability does not appear

4.—(1) Where—

(a) in an action against a person under disability begun by writ, or by originating summons to which an appearance is required to be entered, no appearance is entered in the action for that person, or

(b) the defendant to an action serves a defence and counterclaim on a person under disability who is not already a party to the action; and no appearance is entered for that person,

an application for the appointment by the Court of a guardian ad litem of that person must be made by the plaintiff or defendant, as the case may be, after the time limited (as respects that person) for appearing and before proceeding further with the action or counterclaim.

(2) Where a party to an action has served on a person under disability who is not already a party to the action a third party notice within the meaning of Order 16 and no appearance is entered for that person to the notice, an application for the appointment by the Court of a guardian ad litem of that person must be made by that party after the time limited (as respects that person) for appearing and before proceeding further with the third party proceedings.

(3) Where in any proceedings against a person under disability begun by petition or originating motion, or by originating summons to which no appearance need be entered, that person does not appear by a guardian ad litem at the hearing of the petition, motion or summons, as the case may be, the Court hearing it may appoint a guardian ad litem of that person in the proceedings or direct that an application be made by the petitioner or applicant, as the case may be, for the appointment of such a guardian.

(4) At any stage in the proceedings in the Chancery Division under any judgment or order, notice of which has been served on a person under disability, the Court may, if no appearance is entered for that person, appoint a guardian ad litem of that person in the proceedings or direct that an application be made for the appointment of such a guardian.

(5) An application under paragraph (1) or (2) must be supported by evidence proving—

(a) that the person to whom the application relates is a person under disability,

(b) that the person proposed as guardian ad litem is willing and a proper person to act as such and has no interest in the proceedings adverse to that of the person under disability,

(c) that the writ, originating summons, defence and counterclaim or third party notice, as the case may be, was duly served on the person under disability, and

(d) subject to paragraph (6), that notice of the application was, after the expiration of the time limited for appearing and at least 7 days before the day named in the notice for hearing of the application, so served on him.

(6) If the Court so directs, notice of an application under paragraph (1) or (2) need not be served on a person under disability.

(7) An application for the appointment of a guardian ad litem made in compliance with a direction of the Court given under paragraph (3) or (4) must be supported by evidence proving the matters referred to in paragraph (5)(b).

[E.r. 6]

Application to discharge or vary certain orders

5.  An application to the Court on behalf of a person under disability served with an order made ex parte under Order 15, rule 7, for the discharge or variation of the order must be made—

(a) if a next friend or guardian ad litem is acting for that person in the cause or matter in which the order is made within 14 days after the service of the order on that person;

(b) if there is no next friend or guardian ad litem acting for that person in that cause or matter, within 14 days after the appointment of such a friend or guardian to act for him.

[E.r. 7]

Admission not to be implied from pleading of person under disability

6.  Notwithstanding anything in Order 18, rule 13(1), a person under disability shall not be taken to admit the truth of any allegation of fact made in the pleading of the opposite party by reason only that he has not traversed it in his pleadings.

[E.r. 8]

Discovery and interrogatories

7.  Orders 24 and 26 shall apply to a person under disability and to his next friend or guardian ad litem.

[E.r. 9]

Compromise, etc., by person under disability

8.  Where in any proceedings money is claimed by or on behalf of a person under disability, no settlement, compromise or payment and no acceptance of money paid into court, whenever entered into or made, shall so far as it relates to that person's claim be valid without the approval of the Court.

[E.r. 10]

Approval of settlement

9.—(1) Where, before proceedings in which a claim for money is made by or on behalf of a person under disability (whether alone or in conjunction with any other person) are begun, an agreement is reached for the settlement of the claim, and it is desired to obtain the Court's approval to the settlement, then, notwithstanding anything in Order 5, rule 2, the claim may be made in proceedings begun by originating summons, and in the summons an application may also be made for—

(a) the approval of the Court to the settlement and such orders or directions as may be necessary to give effect to it or as may be necessary or expedient under Article 21 of the County Courts (Northern Ireland) Order 1980(11), or rule 10, or

(b) alternatively; directions as to the further prosecution of the claim.

(2) Where in proceedings under this rule a claim is made under the Fatal Accidents Order (Northern Ireland) 1977(12), the originating summons must include the particulars mentioned in Article 4 of the Order.

(3) No appearance need be entered to an originating summons under this rule.

(4) In this rule “settlement” includes a compromise.

[E.r. 11]

Control of money recovered by person under disability

10.—(1) Where in any proceedings—

(a) money is recovered by or on behalf of, or adjudged or ordered or agreed to be paid to, or for the benefit of, a person under disability, or

(b) money paid into court is accepted by or on behalf of a plaintiff who is a person under disability,

the money shall be dealt with in accordance with directions given by the Court, whether under Article 21 of the County Courts (Northern Ireland) Order 1980 or this rule, or under both that Article and this rule and not otherwise.

(2) Directions given under this rule may provide that the money shall, as to the whole or any part thereof, be paid into the High Court and invested or otherwise dealt with there.

(3) Without prejudice to the foregoing provisions of this rule, directions given under this rule may include any general or special direction that the Court thinks fit to give and, in particular, directions as to how the money is to be applied or dealt with and as to any payment to be made, either directly or out of the amount paid into court and whether before or after the money is transferred to or paid into a county court, to the plaintiff, or to the next friend in respect of moneys paid or expenses incurred for or on behalf or for the benefit of the person under disability or for his maintenance or otherwise for his benefit or to the plaintiff's solicitor in respect of costs.

(4) Where in pursuance of directions given under this rule money is paid into the High Court, to be invested or otherwise dealt with there, the money (including any interest thereon) shall not be paid out, nor shall any securities in which the money is invested, or the dividends thereon, be sold, transferred or paid out of court, except in accordance with an order of the Court.

(5) The foregoing provisions of this rule shall apply in relation to a counterclaim by or on behalf of a person under disability, and a claim made by or on behalf of such a person in an action by any other person for relief under section 504 of the Merchant Shipping Act 1894(13), as if for references to a plaintiff and a next friend there were substituted references to a defendant and to a guardian ad litem respectively.

[E.r. 12]

Provision supplementary to rule 10

11.—(1) Where under Article 21 of the County Courts (Northern Ireland) Order 1980 money to which a person under disability is entitled is ordered to be transferred from the High Court to a county court or to be paid into a county court, the following provisions of this rule apply.

(2) Where the money is ordered to be transferred to a county court, the proper officer of the High Court shall send a sealed copy of the order and the payment schedule to the Accountant General, who shall proceed in accordance with rule 50 of the Court Funds Rules (Northern Ireland) 1979(14).

(3) Where the money is ordered to be paid into a county court, the proper officer of the High Court shall send a sealed copy of the judgment or order to the chief clerk of the county court.

[E.r. 13]

Proceedings under Fatal Accidents Order: apportionment by court

12.—(1) Where a single sum of money is paid into court under Order 22, rule 1, in satisfaction of causes of action arising under the Fatal Accidents Order (Northern Ireland) 1977 and the Law Reform (Miscellaneous Provisions) Act 1937(15), and that sum is accepted, the money shall be apportioned between the different causes of action by the Court either when giving directions for dealing with it under rule 10 (if that rule applies) or when authorising its payment out of court.

(2) Where, in an action in which a claim under the Fatal Accidents Order (Northern Ireland) 1977 is made by or on behalf of more than one person, a sum in respect of damages is adjudged or ordered or agreed to be paid in satisfaction of the claim, or a sum of money paid into court under Order 22, rule 1, is accepted in satisfaction of the cause of action under the said Order, then, unless the sum has been apportioned between the persons entitled thereto by the jury, it shall be apportioned between those persons by the Court.

The reference in this paragraph to a sum of money paid into court shall be construed as including a reference to part of a sum so paid, being the part apportioned by the Court under paragraph (1) to the cause of action under the said Order.

[E.r. 15]

Service of certain documents on person under disability

13.—(1) Where in any proceedings a document is required to be served personally or in accordance with Order 10, rule 1(2) on any person and that person is a person under disability this rule shall apply.

(2) Subject to the following provisions of this rule and to Order 24, rule 15(3), and Order 26, rule 6(3), the document must be served—

(a) in the case of a minor who is not also a patient, on his father or guardian or, if he has no father or guardian, on the person with whom he resides or in whose care he is;

(b) in the case of a patient, on the person (if any) who is authorised to conduct in the name of the patient or on his behalf the proceedings in connection with which the document is to be served or, if there is no person so authorised, on the person with whom he resides or in whose care he is;

and must be served in the manner required by these Rules with respect to the document in question.

(3) Notwithstanding anything in paragraph (2), the Court may order that a document which has been, or is to be, served on the person under disability or on a person other than a person mentioned in that paragraph shall be deemed to be duly served on the person under disability;

(4) A judgment or order requiring a person to do, or refrain from doing, any act, a notice of motion or summons for the committal of any person, and a writ of subpoena against any person, must, if that person is a person under disability, be served personally on him unless the Court otherwise orders.

This paragraph shall not apply to an order for interrogatories or for discovery or inspection of documents.

[E.r. 16]

ORDER 81 PARTNERS

Actions by and against firms within jurisdiction

1.  Subject to the provisions of any statutory provision, any two or more persons claiming to be entitled, or alleged to be liable, as partners in respect of a cause of action and carrying on business within the jurisdiction may sue, or be sued, in the name of the firm (if any) of which they were partners at the time when the cause of action accrued.

[E.r. 1]

Disclosure of partners' names

2.—(1) Any defendant to an action brought by partners in the name of a firm may serve on the plaintiffs or their solicitor a notice requiring them or him forthwith to furnish the defendant with a written statement of the names and places of residence of all the persons who were partners in the firm at the time when the cause of action accrued; and if the notice is not complied with the Court may order the plaintiffs or their solicitor to furnish the defendant with such a statement and to verify it on oath or otherwise as may be specified in the order, or may order that further proceedings in the action be stayed on such terms as the Court may direct.

(2) When the names of the partners have been declared in compliance with a notice or order given or made under paragraph (1), the proceedings shall continue in the name of the firm but with the same consequences as would have ensued if the persons whose names have been so declared had been named as plaintiffs in the writ.

(3) Paragraph (1) shall have effect in relation to an action brought against partners in the name of a firm as it has effect in relation to an action brought by partners iii the name of a firm but with the substitution, for references to the defendant and the plaintiffs, of references to the plaintiff and the defendants respectively, and with the omission of the words “or may order” to the end.

[E.r. 2]

Service of writ

3.—(1) Where by virtue of rule 1 partners are sued in the name of a firm, the writ may, except in the case mentioned in paragraph (2), be served—

(a) on any one or more of the partners, or

(b) at the principal place of business of the partnership within the jurisdiction, on any person having at the time of service the control or management of the partnership business there; or

(c) by sending a copy of the writ by ordinary first class post (as, defined in Order 10, rule 1(2)) to the firm at the principal place of business of the partnership within the jurisdiction;

and, subject to paragraph (2), where service of the writ is effected in accordance with this paragraph, the writ shall be deemed to have been duly served on the firm, whether or not any member of the firm is out of the jurisdiction.

(2) Where a writ is served on a firm in accordance with sub-paragraph (1)(c)—

(a) the date of service shall, unless the contrary is shown, be deemed to be the seventh day (ignoring Order 3, rule 2(5)) after the date on which the copy was sent to the firm; and

(b) any affidavit proving due service of the writ must contain a statement to the effect that—

(i) in the opinion of the deponent the copy of the writ, if sent to the firm at the address in question, will have come to the knowledge of one of the persons mentioned in paragraph (1)(a) or (b) within 7 days thereafter, and

(ii) the copy of the writ has not been returned to the plaintiff through the post undelivered to the addressee.

(3) Where a partnership has, to the knowledge of the plaintiff, been dissolved before an action against the firm is begun, the writ by which the action is begun must be served on every person within the jurisdiction sought to be made liable in the action.

(4) Every person on whom a writ is served under paragraph (1)(a) or (b) must at the time of service be given a written notice stating whether he is served as a partner or as a person having the control or management of the partnership business or both as a partner and as such a person; and any person on whom a writ is so served but to whom no such notice is given shall be deemed to be served as a partner.

[E.r. 3]

Entry of appearance in an action against firm

4.—(1) Where persons are sued as partners in the name of their firm appearance may not be entered in the name of the firm but only by the partners thereof in their own names, but the action shall nevertheless continue in the name of the firm.

(2) Where in an action against a firm the writ by which the action is begun is served on a person as a partner, that person, if he denies that he was a partner or liable as such at any material time, may enter an appearance in the action and state in his memorandum of appearance that he does so as a person served as a partner in the defendant firm but who denies that he was a partner at any material time.

An appearance entered in accordance with this paragraph shall, unless and until it is set aside, be treated as an appearance for the defendant firm.

(3) Where an appearance has been entered for a defendant in accordance with paragraph (2), then—

(a) the plaintiff may either apply to the Court to set it aside on the ground that the defendant was a partner or liable as such at a material time or may leave that question to be determined at a later stage of the proceedings;

(b) the defendant may either apply to the Court to set aside the service of the writ on him on the ground that he was not a partner or liable as such at a material time or may at the proper time serve a defence on the plaintiff denying in respect of the plaintiff's "Claim either his liability as a partner or the liability of the defendant firm or both.

(4) The Court may at any stage of the proceedings in an action in which a defendant has entered an appearance in accordance with paragraph (2), on the application of the plaintiff or of that defendant, order that any question as to the liability of that defendant or as to the liability of the defendant firm be tried in such manner; and at such time as the Court directs.

(5) Where in an action against a firm the writ by which the action is begun is served on a person as a person having the control or management of the partnership business, that person may not enter an appearance in the action unless he is a member of the firm sued.

[E.r. 4]

Leave to enforce judgment against firm

5.—(1) Where a judgment is given against a firm, leave to enforce the judgment against the property of a partner in the firm may be granted upon the ex parte application of the party who has obtained that judgment against a person who—

(a) entered an appearance in the action as a partner, or

(b) having been served as a partner with the writ of summons, failed to enter an appearance in the action, or

(c) admitted in his pleading that he is a partner, or

(d) was adjudged to be a partner.

(2) Leave under paragraph (1) shall not be granted against a member of the firm who was out of the jurisdiction when the writ of summons was issued unless he—

(a) entered an appearance to the action as a partner, or

(b) was served within the jurisdiction with the writ as a partner, or

(c) was, with the leave of the Court given under Order 11, served out of the jurisdiction with the writ, or notice of the writ, as a partner;

and, except as against any property of the firm within the jurisdiction or as provided by the foregoing provisions of this paragraph, a judgment given or made against a firm shall not render liable, release or otherwise affect a member of the firm who was out of the jurisdiction when the writ was issued.

(3) Where a party who has obtained a judgment against a firm claims that a person is liable to satisfy the judgment as being a member of the firm, and the foregoing provisions of this rule do not apply in relation to that person, that party may apply to the Court for leave to enforce the judgment against that person, the application to be made by summons which must be served personally on that person.

(4) Where the person against whom an application under paragraph (3) is made does not dispute his liability, the Court hearing the application may, subject to paragraph (2) give leave to enforce against that person, and, where that person disputes his liability, the Court may order that the liability of that person be tried and determined in any manner in which any issue or question in an action may be tried and determined.

[E.r. 5]

Leave to enforce judgment in actions between partners, etc

6.—(1) Upon an application for leave to enforce a judgment given in—

(a) an action by or against a firm in the name of the firm against or by a member of the firm, or

(b) an action by a firm in the name of the firm against a firm in the name of the firm where those firms have one or more members in common

the Court may give such directions, including directions as to the taking of accounts and the making of inquiries, as may be just.

[E.r. 6]

Actions begun by originating summons

7.  Rules 2 to 6 shall, with the necessary modifications, apply in relation to an action by or against partners in the name of their firm begun by originating summons as they apply in relation to such an action begun by writ.

[E.r. 8]

Application to person carrying on business in another name

8.  An individual carrying on business within the jurisdiction in a name or style other than his own name, may be sued in that name or style as if it were the name of a firm, and rules 2 to 7 shall, so far as applicable, apply as if he were a partner and the name in which he carries on business were the name of his firm.

[E.r. 9]

ORDER 82 DEFAMATION ACTIONS

1.  These Rules apply to actions for libel or slander subject to the following rules of this Order.

[E.r. 1]

Indorsement of claim in libel action

2.  Before a writ in an action for libel is issued it must be indorsed with a statement giving sufficient particulars of the publications in respect of which the action is brought to enable them to be identified.

[E.r. 2]

Obligation to give particulars

3.—(1) Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in support of such sense.

(2) Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.

(3) Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published on a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.

(4) This rule shall apply in relation to a counterclaim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made the defendant.

[E.r. 3]

Provision as to payment into court

4.—(1) Where in an action for libel or slander against several defendants sued jointly the plaintiff, in accordance with Order 22, rule 3(1), accepts money paid into court by any of those defendants in satisfaction of his cause of action against that defendant, then, notwithstanding anything in rule 3(2) of that Order, the action shall be stayed against that defendant only, but—

(a) the sum recoverable under any judgment given in the plaintiff's favour against any other defendant in the action by way of damages shall not exceed the amount (if any) by which the amount of the damages exceeds the amount paid into court by the defendant as against whom the action has been stayed, and

(b) the plaintiff shall not be entitled to his costs of the action against the other defendant after the date of the payment into court unless either the amount of the damages awarded to him is greater than the amount paid into court and accepted by him or the judge is of opinion that there was reasonable ground for him to proceed with the action against the other defendant.

(2) Where in an action for libel a party pleads the defence for which section 2 of the Libel Act 1843(16) provides, Order 22, rule 7, shall not apply in relation to that pleading.

[E.r. 4]

Statement in open court

5.—(1) Where a party accepts money paid into court in satisfaction of a cause of action for libel or slander, the plaintiff or defendant, as the case may be, may apply to a judge in chambers by summons for leave to make in open court a statement in terms approved by the judge.

(2) Where a party to an action for libel or slander which is settled before trial desires to make a statement in open court, an application must be made to the Court for an order that the action be set down for trial, and before the date fixed for the trial the statement must be submitted for the approval of the judge before whom it is to be made.

[E.r. 5]

Interrogatories not allowed in certain cases

6.  In an action for libel or slander where the defendant pleads that the words or matters complained of are fair comment on a matter of public interest or were published on a privileged occasion, no interrogatories as to the defendant's sources of information or grounds of belief shall be allowed.

[E.r. 6]

Evidence in mitigation of damages

7.  In an action for libel or slander in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled 01;1 the trial to give evidence in chief, with a view, to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless 7 days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence.

[E.r. 7]

Fulfilment of offer of amends under s. 4 of Defamation Act (Northern Ireland) 1955

8.—(1) An application to the Court under section 4 of the Defamation Act (Northern Ireland) 1955(17) to determine any question as to the steps to be taken in fulfilment of an offer of amends made under that section must, unless the application is made in the course of proceedings for libel or slander in respect of the publication to which the offer relates, be made in chambers in the Queen's Bench Division, but only a judge may determine such question.

(2) No appearance need be entered to an originating summons by which such an application is made.

[E.r. 8]

ORDER 83 REOPENING OF AGREEMENTS UNDER THE CONSUMER CREDIT ACT 1974

Interpretation

1.  In this Order a section referred to by number means the section so numbered in the Consumer Credit Act 1974(18).

[E.r. 1]

Notice to reopen agreement

2.—(1) Where in any such proceedings in the High Court as are mentioned in section 139(1)(b) the debtor or a surety desires to have a credit agreement reopened, he shall serve a notice to that effect on every other party to the proceedings and file a copy of the notice.

(2) If at the time of serving a notice under paragraph (1) the debtor or surety has not entered an appearance in the proceedings, the notice must specify an address for service as if it were a memorandum of appearance.

[E.r. 2]

No default judgment without leave

3.—(1) After a notice under rule 2 has been served in an action begun by writ, judgment in default of appearance or in default of defence shall not be entered except with the leave of the Court.

(2) An application for the grant of leave under paragraph (1) must be made by summons supported by affidavit, and, notwithstanding anything in Order 65, rule 9, the summons and a copy of the affidavit must be served on every other party to the proceedings.

(3) If the application is for leave to enter judgment in default of appearance, the summons shall not be issued until after the time limited for appearing.

[E.r. 3]

Court's powers on hearing of application

4.  On the hearing of an application under rule 3(2) or of any proceedings in which a notice under rule 2 has been filed, the Court may whether or not the debtor or surety has entered an appearance or appears at the hearing, exercise the powers of the Court under sections 137 to 140 and where, on an application under rule 3(2), the Court refuses leave to enter judgment on a claim or any part of a claim, it may make or give any such order or direction as it might have made or given if the application had been made an application under Order 14, rule 1, for judgment on the claim.

[E.r. 4]

ORDER 84

[No Order made]

ORDER 85 ADMINISTRATION AND SIMILAR ACTIONS

Interpretation

1.  In this Order “ administration action” means an action for the administration under the direction of the Court of the estate of a deceased person or for the execution under the direction of the Court of a trust.

[E.r. 1]

Determination of questions, etc., without administration

2.—(1) An action may be brought for the determination of any question or for any relief which could be determined or granted, as the case may be, in an administration action and a claim need not be made in the action for the administration or execution under the direction of the Court of the estate or trust in connection with which the question arises or the relief is sought.

(2) Without prejudice to the generality of paragraph (1), an action may be brought for the determination of any of the following questions:—

(a) any question arising in the administration of the estate of a deceased person or in the execution of a trust;

(b) any question as to the composition of any class of persons having a claim against the estate of a deceased person or a beneficial interest in the estate of such a person or in any property subject to a trust;

(c) any question as to the rights or interests of a person claiming to be a creditor of the estate of a deceased person or to be entitled under a will or on the intestacy of a deceased person or to be beneficially entitled under a trust.

(3) Without prejudice to the generality of paragraph (1), an action may be brought for any of the following reliefs:—

(a) an order requiring an executor, administrator or trustee to furnish and, if necessary, verify accounts;

(b) an order requiring the payment into court of money held by a person in his capacity as executor, administrator or trustee;

(c) an order directing a person to do or abstain from doing a particular act in his capacity as executor, administrator or trustee;

(d) an order approving any sale, purchase, compromise or other transaction by a person in his capacity as executor, administrator or trustee;

(e) an order directing any act to be done in the administration of the estate of a deceased person or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed, as the case may be, under the direction of the Court.

[E.r. 2]

Parties

3.—(1) All the executors or administrators of the estate or trustees of the trust, as the case may be, to which an administration action or such an action as is referred to in rule 2 relates must be parties to the action, and where the action is brought by executors, administrators or trustees, any of them who does not consent to being joined as a plaintiff must be made a defendant.

(2) Notwithstanding anything in Order 15, rule 4(2), and without prejudice to the powers of the Court under that Order, all the persons having a beneficial interest in or claim against the estate or having a beneficial interest under the trust, as the case may be, to which such an action as is mentioned in paragraph (1) relates need not be parties to the action; but the plaintiff may make such of those persons, whether all or any one or more of them, parties as, having regard to the nature of the relief or remedy claimed in the action, he thinks fit.

(3) Where, in proceedings under a judgment or order given or made in an action for the administration under the direction of the Court of the estate of a deceased person, a claim in respect of a debt or other liability is made against the estate by a person not a party to the action, no party other than the executors or administrators of the estate shall be entitled to appear in any proceedings relating to that claim without the leave of the Court, and the Court may direct or allow any other party to appear either in addition to, or in substitution for, the executors or administrators on such terms as to costs or otherwise as it thinks fit.

[E.r. 3]

Grant of relief in action begun by originating summons

4.  In an administration action or such an action as is referred to in rule 2, the Court may make any certificate or order and grant any relief to which the plaintiff may be entitled by reason of any breach of trust, wilful default or other misconduct of the defendant notwithstanding that the action was begun by originating summons, but the foregoing provision is without prejudice to the power of the Court to make an order under Order 28, rule 8, in relation to the action.

[E.r. 4]

Judgments and orders in administration actions

5.—(1) A judgment or order for the administration or execution under the direction of the Court of an estate or trust need not be given or made unless in the opinion of the Court the questions at issue between the parties cannot properly be determined otherwise than under such a judgment or order.

(2) Where an administration action is brought by a creditor of the estate of a deceased person or by a person claiming to be entitled under a will or on the intestacy of a deceased person or to be beneficially entitled under a trust, and the plaintiff alleges that no or insufficient accounts have been furnished by the executors, administrators or trustees, as the case may be, then, without prejudice to its other powers, the Court may—

(a) order that proceedings in the action be stayed for a period specified in the order and that the executors, administrators or trustees, as the case may be, shall within that period furnish the plaintiff with proper accounts;

(b) if necessary to prevent proceedings by other creditors or by other persons claiming to be entitled as aforesaid, give judgment or make an order for the administration of the estate to which the action relates and include therein an order that no proceedings are to be taken under the judgment or order, or under any particular account or inquiry directed, without the leave of the judge in person.

[E.r. 5]

Conduct of sale of trust property

6.  Where in an administration action an order is made for the sale of any property vested in executors, administrators or trustees, those executors, administrators or trustees, as the case may be, shall have the conduct of the sale unless the Court otherwise directs.

[E.r. 6]

ORDER 86 ACTIONS FOR SPECIFIC PERFORMANCE, ETC. : SUMMARY JUDGMENT

Application by plaintiff for summary judgment

1.—(1) In any action in the Chancery Division begun by writ indorsed with a claim—

(a) for specific performance of an agreement (whether in writing or not) for the sale, purchase or exchange of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages, or

(b) for rescission of such an agreement, or

(c) for the forfeiture or return of any deposit made under such an agreement,

the plaintiff may, on the ground, that the defendant has no defence to the action, apply to the Court for judgment.

(2) An application may be made against a defendant under this rule whether or not he has entered an appearance in the action.

[E.r. 1]

Manner in which application under rule 1 must be made

2.—(1) An application under rule 1 shall be made by summons supported by an affidavit verifying the facts on which the cause of action is based and stating that in the deponent's belief there is no defence to the action.

Unless the Court otherwise directs, an affidavit for the purposes of this paragraph may contain statements of information or belief with the sources and grounds thereof.

(2) The summons must set out or have attached thereto minutes of the judgment sought by the plaintiff.

(3) The summons, a copy of the affidavit in support and of any exhibit referred to therein must be served on the defendant not less than 4 clear days before the return day.

[E.r. 2]

Judgment for plaintiff

3.  Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the action, the Court may give judgment for the plaintiff in the action.

[E.r. 4]

Leave to defend

4.—(1) A defendant may show cause against an application under rule 1 by affidavit or otherwise to the satisfaction of the Court.

(2) The Court may give a defendant against whom such an application is made leave to defend the action either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit.

(3) On the hearing of such an application the Court may order a defendant showing cause or, where that defendant is a body corporate, any director, manager, secretary or other similar officer thereof, or any person purporting to act in any such capacity—

(a) to produce any document;

(b) if it appears to the Court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath.

[E.r. 5]

Directions

5.  Where the Court orders that a defendant have leave to defend the action, the Court shall give directions as to the further conduct of the action.

[E.r. 6]

Costs

6.  If the plaintiff makes an application under rule 1 where the case is not within this Order, or if it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, then, without prejudice to Order 62, and, in particular, to rule 4(1) thereof, the Court may dismiss the application with costs and may, if the plaintiff is not an assisted person, require the costs to be paid by him forthwith.

[E.r. 7]

Setting aside judgment

7.  Any judgment given against a defendant who does not appear at the hearing of an application under rule 1 may be set aside or varied by the Court on such terms as it thinks just.

[E.r. 8]

ORDER 87 DEBENTURE HOLDERS' ACTIONS : RECEIVER'S REGISTER

Receiver's register

1.  Every receiver appointed by the Court in an action to enforce registered debentures or registered debenture stock shall, if so directed by the Court, keep a register of transfers, of, and other transmissions of title to, such debentures or stock (in this Order referred to as "the receiver's register").

[E.r. 1]

Registration of transfers, etc.

2.—(1) Where a receiver is required by rule 1 to keep a receiver's register, then, on the application of any person entitled to any debenture or debenture stock by virtue of any transfer or other transmission of title, and on production of such evidence of identity and title as the receiver may reasonably require, the receiver shall, subject to the following provisions of this rule, register the transfer or other transmission of title in that register.

(2) Before registering a transfer the receiver must, unless the due execution of the transfer is proved by affidavit, send by post to the registered holder of the debentures or debenture stock transferred at his registered address a notice stating—

(a) that an application for the registration of the transfer has been made, and

(b) that the transfer will be registered unless within the period specified in the notice the holder informs the receiver that he objects to the registration,

and no transfer shall be registered until the period so specified has elapsed.

The period to be specified in the notice shall in no case be less than 7 days after a reply from the registered holder would in the ordinary course of post reach the receiver if the holder had replied to the notice on the day following the day when in the ordinary course of post the notice would have been delivered at the place to which it was addressed.

(3) On registering a transfer or other transmission of title under this rule the receiver must indorse a memorandum thereof on the debenture or certificate of debenture stock, as the case may be, transferred or transmitted, containing a reference to the action and to the order appointing him receiver.

[E.r. 2]

Application for rectification of receiver's register

3.—(1) Any person aggrieved by any thing done or omission made by a receiver under rule 2 may apply to the Court for rectification of the receiver's register, the application to be made by summons in the action in which the receiver was appointed.

(2) The summons shall in the first instance be served only on the plaintiff or other party having the conduct of the action but the Court may direct the summons or notice of the application to be served on any other person appearing to be interested.

(3) The Court hearing an application under this rule may decide any question relating to the title of any person who is party to the application to have his name entered in or Omitted from the receiver's register and generally may decide any question necessary or expedient to be decided for the rectification of that register.

[E.r. 3]

Receiver's register evidence of transfers, etc.

4.  Any entry made in the receiver's register, if verified by an affidavit made by the receiver or by such other person as the Court may direct, shall in all proceedings in the action in which the receiver was appointed be evidence of the transfer or transmission of title to which the entry relates and, in particular, shall be accepted as evidence thereof for the purpose of any distribution of assets, notwithstanding that the transfer or transmission has taken place after the making of a certificate in the action certifying the holders of the debentures or debenture stock certificates.

[E.r. 4]

Proof of title of holder of bearer debenture, etc.

5.—(1) This rule applies in relation to an action to enforce bearer debentures or to enforce debenture stock in respect of which the company has issued debenture stock bearer certificates.

(2) Notwithstanding that judgment has been given in the action and that a certificate has been made therein certifying the holders of such debentures or certificates as are referred to in paragraph (1), the title of any person claiming to be such a holder shall (in the absence of notice of any defect in the title) be sufficiently proved by the production of the debenture or debenture stock certificate, as the case may be, together with a certificate of identification signed by the person producing the debenture or certificate identifying the debenture or certificate produced and certifying the person (giving his name and address) who is the holder thereof.

(3) Where such a debenture or certificate as is referred to in paragraph (1) is produced in the Chancery Office, the solicitor of the plaintiff in the action must cause to be indorsed thereon a notice stating—

(a) that the person whose name and address is specified in the notice (being the person named as the holder of the debenture or certificate in the certificate of identification produced under paragraph (2)) has been recorded in the Chancery Office as the holder of the debenture or debenture stock certificate, as the case may be, and

(b) that that person will, on producing the debenture or debenture stock certificate, as the case may be, be entitled to receive payment of any dividend in respect of that debenture or stock unless before payment a new holder proves his title in accordance with paragraph (2), and

(c) that if a new holder neglects to prove his title as aforesaid he may incur additional delay, trouble and expense in obtaining payment.

(4) The solicitor of the plaintiff in the action must preserve any certificates of identification produced under paragraph (2) and must keep a record of the debentures and debenture stock certificates so produced and of the names and addresses of the persons producing them and of the holders thereof, and, if the Court requires it, must verify the record by affidavit.

[E.r. 5]

Requirements in connection with payments

6.—(1) Where in an action to enforce any debentures or debenture stock an order is made for payment in respect of the debentures or stock, the Accountant General shall not make a payment in respect of any such debenture or stock unless either there is produced to him the certificate for which paragraph (2) provides or the Court has in the case in question for special reason dispensed with the need for the certificate and directed payment to be made without it.

(2) For the purpose of obtaining any such payment the debenture or debenture stock certificate must be produced to the solicitor of the plaintiff in the action or to such other person as the Court may direct, and that solicitor or other person must indorse thereon a memorandum of payment and must make and sign a certificate certifying that the statement set out in the certificate has been indorsed on the debenture or debenture stock certificate, as the case may be, and send the certificate to the Accountant General.

[E.r. 6]

ORDER 88 MORTGAGE ACTIONS

Application and interpretation

1.—(1) This Order applies to any action (whether begun by writ or originating summons) by a mortgagee or mortgagor or by any person having the right to foreclose or redeem any mortgage, being an action in which there is a claim for any of the following reliefs, namely—

(a) payment of moneys secured by the mortgage,

(b) sale of the mortgaged property,

(c) foreclosure,

(d) delivery of possession to the mortgagee by the mortgagor or by any other person who is or is alleged to be in possession of the property,

(e) redemption,

(f) reconveyance of the property or its release from the security,

(g) delivery of possession by the mortgagee.

(2) In this Order “mortgage” includes a legal and an equitable mortgage and a legal and an equitable charge, and references to a mortgagor, a mortgagee and mortgaged property shall be construed accordingly.

(3) An action to which this Order applies is referred to in this Order as a mortgage action.

(4) These Rules apply to mortgage actions subject to the following provisions of this Order.

[E.r. 1]

Assignment of certain actions to Chancery Division

2.  Without prejudice to Order 1, rule 10, any action in which there is a claim for—

(a) payment of moneys secured by a mortgage of any real or leasehold property, or

(b) delivery of possession to the mortgagee of any such property by the mortgagor or by any other person who is or is alleged to be in possession of the property,

shall be assigned to the Chancery Division.

[E.r. 2]

Commencement of action

3.  The writ or originating summons by which a mortgage action is begun shall be indorsed with or contain a statement showing—

(a) where the mortgaged property is situated, and

(b) if the plaintiff claims possession of the mortgaged property, whether the property consists of or includes a dwelling house and, if so, whether the dwelling house is one to which the Rent (Northern Ireland) Order, 1978, applies.

[E.r. 3]

Documents to be lodged on taking appointment for hearing

4.—(1) The plaintiff in a mortgage action in the Chancery Division begun by originating summons, on applying for an appointment under Order 28, rule 2(1), must produce the originating summons and leave in the Chancery Office—

(a) a copy of the originating summons, and

(b) the copy memorandum of appearance, stamped in accordance with Order 12, rule 4, of any defendant to the action or, if any defendant has failed to enter an appearance, a certificate of his non-appearance.

(2) Not less than 2 clear days before the day fixed for the first or any adjourned hearing of the originating summons the plaintiff must leave in the Chancery Office the original or an office copy of any affidavit intended to be used by him at the hearing with the exhibits thereto.

[E.r. 4]

Claim for possession: non-appearance by a defendant

5.—(1) Where in a mortgage action in the Chancery Division begun by originating summons, being an action in which the plaintiff is the mortgagee and claims delivery of possession or payment of moneys secured by the mortgage or both, any defendant fails to enter an appearance, the following provisions of this rule shall apply, and references in those provisions to the defendant shall be construed as references to any such defendant.

This rule shall not be taken as affecting Order 28, rule 3, or rule 5(2), in so for as it requires any document to be served on, or notice given to, a defendant who has entered an appearance in the action.

(2) Not less than 4 clear days before the day fixed for the first hearing of the originating summons the plaintiff must serve on the defendant a copy of the notice of appointment for the hearing and a copy of the affidavit in support of the summons.

(3) Where the plaintiff claims delivery of possession there must be indorsed on the outside fold of the copy of the affidavit served on the defendant a notice informing the defendant that the plaintiff intends at the hearing to apply for an order to the defendant to deliver up to the plaintiff possession of the mortgaged property and for such other relief (if any) claimed by the originating summons as the plaintiff intends to apply for at the hearing.

(4) Where the hearing is adjourned, then, subject to any directions given by the Court, the plaintiff must serve notice of the appointment for the adjourned hearing, together with a copy of any further affidavit intended to be used at that hearing, on the defendant not less than 2 clear days before the day fixed for the hearing.

A copy of any affidavit served under this paragraph must be indorsed in accordance with paragraph (3).

(5) Service under paragraph (2) or (4), and the manner in which it was effected, may be proved by a certificate signed by the plaintiff, if he sues in person, and otherwise by his solicitor.

The certificate may be indorsed on the affidavit in support of the summons or, as the case may be, on any further affidavit intended to be used at an adjourned hearing.

(6) A copy of any exhibit to an affidavit need not accompany the copy of the affidavit served under paragraph (2) or (4).

(7) Where the plaintiff gives notice to the defendant under Order 3, rule 6, of his intention to proceed, service of the notice, and the manner in which it was effected, may be, proved by a certificate signed as mentioned in paragraph (5).

[E.r. 5]

Action in Chancery Division for possession or payment: evidence

6.—(1) The affidavit in support of the originating summons by which an action to which this rule applies is begun must comply with the following provisions of this rule.

This rule applies to a mortgage action in the Chancery Division begun by originating summons in which the plaintiff is the mortgagee and claims delivery of possession or payment of moneys secured by the mortgage or both.

(2) The affidavit must exhibit the original mortgage or a true copy thereof, and the original mortgage or, in the, case of a registered charge, the certificate of charge must be produced at the hearing of the summons.

(3) Where the plaintiff claims delivery of possession the affidavit must show the circumstances under which the right to possession arises and, except where the Court in any case or class of case otherwise directs; the state of the account between the mortgagor and mortgagee with particulars of—

(a) the amount of the advance,

(b) the amount of the periodic payments required to be made,

(c) the amount of any interest or instalments in, arrear at the date of issue of the originating summons and at the date of the affidavit, and

(d) the amount remaining due under the mortgage.

(4) Where the plaintiff claims delivery of possession, the affidavit must give particulars of every person who to the best of the plaintiff's knowledge is in possession of the mortgaged property.

(5) If the mortgage creates a tenancy other than a tenancy at will between the mortgagor and the mortgagee, the affidavit must show how and when the tenancy was determined and if by service of notice when the notice was duly served.

(6) Where the plaintiff claims payment of moneys secured by the mortgage, the affidavit must prove that the money is due and payable and give the particulars mentioned in paragraph (3).

(7) Where the plaintiff’s claim includes a claim for interest to judgment, the affidavit must state the amount of a day's interest.

[E.r. 6]

Action by writ: judgment in default

7.—(1) Notwithstanding anything in Order 13 or Order 19; in a mortgage action begun by writ judgment in default of appearance or in default of defence shall not be entered except with the leave of the Court.

(2) An application for the grant of leave under this rule must be made by summons and the summons must, notwithstanding anything in Order 65, rule 9, be served on the defendant.

(3) Where a summons for leave under this rule is issued in an action in the Chancery Division, rule 5(2) to (7) shall apply in relation to the action subject to the modification that for references therein to the originating summons, and for the reference in paragraph (2) to the notice of appointment there shall be substituted references to the summons.

(4) Where a summons for leave under this rule is issued in an action to which rule 6 would apply had the action been begun by originating summons, the affidavit in support of the summons must contain the information required by that rule.

[E.r. 7]

Action for sale of mortgaged property : parties: disposal of surplus proceeds of sale: sale of unsold property

8.—(1) This rule applies to a mortgage action in the Chancery Division in which the plaintiff is a mortgagee and claims sale of the mortgaged property.

(2) Notwithstanding anything in Order 15, rule 4(2), and without prejudice to the powers of the Court under that Order, no other mortgagee or trustee for such mortgagee need be a party to the action unless he is in actual possession or receipt of the rents and profits of the mortgaged property.

(3) A person at whose suit or for whose benefit a receiver has been appointed, or continues to receive the rents and profits of the mortgaged property, shall not be deemed to be in receipt of such rents and profits within the meaning of paragraph (2).

(4) Where mortgaged property has been sold and surplus produce of such sale remains in court after payment of the demands and costs of the plaintiff and prior and contemporaneous mortgages, the Court may order such surplus to be distributed amongst the mortgagees who have proved their demand in the action under an inquiry directed pursuant to paragraph (6), according to their priorities.

(5) Where any part of the mortgaged property the subject of such action remains unsold after payment of the plaintiff's demand, and, prior and contemporaneous mortgages, any mortgagee subsequent in order, of priority to the demand of the plaintiff may apply to the Court for an order directing a sale of such unsold property, or a competent part thereof, for payment of the demands subsequent to that of the plaintiff which have been proved as aforesaid, and the Court may direct such sale if it shall be of opinion that such mortgagees, or any of them, would be entitled to have their demands raised by a sale of such property, or may direct a receiver to be appointed or continued over such unsold property, for the benefit of such subsequent mortgagees, and distribute the funds to be received by such receiver accordingly.

(6) Subject to paragraph (7), an order for sale in a mortgage action shall direct an account to be taken of all mortgages subsequent as well as prior to, or contemporaneous with, the plaintiff's demand, and an inquiry as to the respective priorities of all such demands as shall be proved.

(7) If the Court shall be of opinion that extending the account to mortgages subsequent to the demand of the plaintiff will improperly delay the plaintiff in recovering his demand, the account may be confined to the rights of the plaintiff and of mortgagees prior to and contemporaneous, with him.

ORDER 89 CO-ORDINATION OF EXERCISE OF JURISDICTION IN RELATION TO PERSONS UNDER DISABILITY

Application

1.  The rules of this Order shall apply for the purposes of avoiding conflict and of co-ordinating jurisdiction exercised in relation to any person under disability.

Interpretation

2.  In this Order—

“the assigned judge” includes any judge who exercises jurisdiction in a cause or matter assigned to the assigned judge referred to in section 29 of the Act;

“the seised judge” means any judge, including the assigned judge, referred to in section 29 of the Act, who exercises jurisdiction in any other cause or matter;

the expression “the assigned judge” and “the seised judge” include a master when exercising the corresponding jurisdiction;

“patient” means a person under disability, other than minority, the management of whose affairs is under the control of the Court;

“person under disability” means a person who is a minor or a person who by ;reason of mental disorder within the meaning of the Mental Health Act (Northern Ireland) 1961(19) is incapable of managing and administering his property and affairs.

Powers of seised judge

3.—(1) Where a cause or matter affecting a person under disability is brought before the seised judge or any question affecting such a person arises in a cause or matter so brought, the seised judge may—

(a) make an order making a minor a ward of court, if he considers it proper to do so, and shall thereupon transfer the matter of the wardship to the assigned judge;

(b) refer the question of wardship to the assigned judge;

(c) where a question arising in the proceedings affects the welfare (including the care, custody and control) or property of a person under disability either—

(i) refer the question to the assigned judge, or

(ii) make such order as he considers necessary to dispose of the question (not being an order which conflicts with an order previously made in wardship proceedings in Northern Ireland affecting a minor).

(2) Any order made under paragraph (1)(c)(ii) may be varied or discharged by the seised judge or the assigned judge.

Report by seised judge

4.  The seised judge shall, when he makes an order under rule 3(1), furnish to the Office of Care and Protection for the use of the assigned judge a report on the relevant facts and proceedings together with such observations and recommendations as he thinks fit.

Powers of assigned judge

5.  The assigned judge, when a cause or matter is transferred to him or a question is referred to him, may proceed as if it had originated before him.

Disability to be indorsed on writ etc.

6.—(1) Where a person under disability who is a party to or otherwise affected by a cause or matter, other than a wardship application or a matter relating to patients, is a ward of court or a patient; this must be stated in the indorsement of the writ of summons or in the petition, originating summons or originating motion, as the case may be.

(2) Where a person becomes a ward of court or a patient while a cause of matter is pending, the party acting on behalf of that person must amend the proceedings so as to comply with paragraph (1) and give notice of the amendment to any other party.

Transmission of order

7.  If the seised judge makes an order—

(a) which relates to a person under disability and which brings him within the jurisdiction of the Office of Care and Protection;

(b) which makes a minor a ward of court;

(c) which relates to or affects a ward of court or a patient, or

(d) which the judge directs to be transmitted pursuant to this rule,

a copy of the order shall be transmitted by the department in which the order is drawn up to the Office of Care and Protection.

ORDER 90 PROCEEDINGS CONCERNING MINORS

Interpretation

1.  In this Order, “ Office” means the Office of Care and Protection, and “the Master” means the Master (Care and Protection).

[E.r. 1]

Assignment and commencement of proceedings

2.  All proceedings to which "this Order relates shall be assigned to the Family Division and shall be begun in the Office.

[E.r. 2]

Application to make minor a ward of court

3.—(1) An application to make a minor a ward of court must be made by originating summons issued out of the Office.

(2) Where there is no person other than the minor who is a suitable respondent, an application may be made ex parte to the Master for leave to issue either an ex parte originating summons or an originating summons with the minor as respondent thereto; and, except where such leave is granted, the minor shall not be made a respondent to an originating summons under this rule in the first instance.

(3) The date of the minor's birth shall, unless otherwise directed, be stated in the summons and the applicant shall—

(a) on issuing the summons or before or at the first hearing thereof lodge in the Office a certified copy of the full entry in the Register of Births or, as the case may be, in the Adopted Children Register relating to the minor, or

(b) at the first hearing of the summons apply for directions as to proof of birth of the minor in some other manner.

(4) Unless the Court otherwise directs, the summons shall state the whereabouts of the minor or, as the case may be, that the applicant is unaware of his whereabouts and shall be served on the respondent, the Director of the Health and Social Services Board for the area in which the minor ordinarily resides (except where the Director is the applicant) and on such other person or persons as the Master may direct.

(5) Every respondent other than the minor shall, forthwith after being served with the summons—

(a) lodge in the Office a notice stating the address of the respondent and the whereabouts of the minor or, as the case may be, that the respondent is unaware of his whereabouts, and

(b) unless the Court otherwise directs, serve a copy of the notice on the applicant.

(6) Where any party other than the minor changes his address or becomes aware of any change in the whereabouts of the minor after the issue or, as the case may be, service of the summons, he shall, unless the Court otherwise directs, forthwith lodge notice of the change in the Office and serve a copy of the notice on every other party.

(7) The summons shall contain a notice to the respondent informing him of the requirements of paragraphs (5) and (6).

(8) In this rule any reference to the whereabouts of a minor is a reference to the address at which and the person with whom he is living and any other information relevant to the question where he may be found.

[E.r. 3]

Enforcement of order

4.  The power of the High Court to secure compliance with any direction relating to a ward of court may be exercised by an order addressed to the Official Solicitor or such other person as the judge may nominate.

[E.r. 3]

When minor ceases to be ward of court

5.—(1) A minor who, by virtue of section 26(2) of the Act, becomes a ward of court on the issue of a summons under rule 3 shall cease to be a ward of court—

(a) if an application for an appointment for the hearing of the summons is not made within the period of 21 days after the issue of the summons, at the expiration of that period;

(b) if an application for such an appointment is made within that period, on the determination of the application made by the summons unless the Court hearing it orders that the minor be made a ward of court;

(2) Nothing in paragraph (1) shall be taken as affecting the power of the Court under section 26(3) of the Act to order that any minor who is for the time being a ward of court shall cease to be a ward of court.

(3) If no application for an appointment for the hearing of a summons under rule 3 is made within the period of 21 days after the issue of the summons, a notice stating whether the applicant intends to proceed with the application made by the summons must be left at the Office immediately after the expiration of that period.

[E.r. 4]

Applications under Guardianship of Infants Act 1886

6.  Where there is pending any proceedings by reason of which a minor is a ward of court, any application under the Guardianship of Infants Act 1886(20) (in this Part of this Order referred to as “the Guardianship Act”) with respect to that minor may be made by summons in that proceeding, but except in that case any such application must be made by originating summons issued out of the Office.

[E.r. 5]

Respondents to guardianship summons

7.—(1) Where the minor with respect to whom an application under the Guardianship Act is made is not the applicant, he shall not, unless the Court otherwise directs, be made a respondent to the summons or, if the application is made by ordinary summons be served with the summons, but; subject to paragraph (2) any other person appearing to be interested in, or affected by, the application shall be made a respondent or be served with the summons, as the case may be.

(2) The Court may dispense with service of the summons (whether originating or ordinary) on any person and may order it to be served on any person not originally served.

[E.r. 6]

Guardianship proceedings may be in chambers

8.  Applications under the Guardianship Act may be disposed of in chambers.

[E.r. 7]

Jurisidiction of the Master

9.—(1) In proceedings to which this Order applies the Master may transact all such business and exercise all such authority and jurisdiction as may be transacted and exercised by a judge in chambers.

(2) Paragraph (1) is without prejudice to the power of the judge to whom the business of the Family Division has been assigned pursuant to section 17 of the Act to reserve to himself the transaction of any such business or the exercise of any such authority or jurisdiction.

[E.r. 12]

ORDER 91 REVENUE PROCEEDINGS IN CHANCERY DIVISION

Assignment to Chancery Division, etc.

1.  The following proceedings, namely—

(a) any case stated for the opinion of the High Court under section 13 of the Stamp Act 1891(21);

(b) any appeal to the High Court under section 53 or 100 of the Taxes Management Act 1970(22) or paragraph 7(3), 32(3) or 35(2) of Schedule 4 to the Finance Act 1975(23) or any application, for leave to appeal under the said paragraph 7(3)

shall be assigned to the Chancery Division.

[E.r. 1]

Appeal under paragraph 7 of Schedule 4 to the Finance Act 1975

2.—(1) Order 55 shall not apply in relation to an appeal to the High Court under paragraph 7(3) of Schedule 4 to the Finance Act 1975.

(2) Such an appeal must be brought by originating summons which must—

(a) state the date on which the Commissioners of Inland Revenue (in this rule referred to as the “Board”) gave notice to the appellant under paragraph 6 of the said Schedule of the determination which is the subject of this appeal;

(b) state the date on which the appellant gave to the Board notice of appeal under paragraph 7(1) of the said Schedule and, if the notice was not given within the time limited, whether the Board or the Special Commissioners have given consent to the appeal being brought out of time and, if they have, the date on which it was given, and

(c) either state that the appellant and the Board have agreed that the appeal may be to the High Court or contain an application for leave to appeal to the High Court.

(3) At the time of issuing the originating summons the appellant shall lodge in the Chancery Office—

(a) two copies of the notice referred to in paragraph (2)(a);

(b) two copies of the notice of appeal referred to in paragraph (2)(b); and

(c) where the originating summons contains an application for leave to appeal, an affidavit setting out the grounds on which it is alleged that the matters to be decided on the appeal are likely to be substantially confined to questions of law.

(4) The originating summons must be issued and served on the Board within 30 days of the date on which the appellant gave to the Board notice of appeal under paragraph 7(1) of the said Schedule or, if the Board or the Special Commissioners have given consent to the appeal being brought out of time, within 30 days of the date on which such consent was given.

(5) No appearance need be entered to the originating summons, but it must specify a date of hearing being not less than 40 days from the issue of the summons.

(6) Where the originating summons contains an application for leave to appeal to the High Court, a copy of the affidavit lodged pursuant to paragraph (3)(c) shall be served on the Board with the originating summons and the Board may, within 30 days after service, lodge in the Chancery Office an affidavit in answer and a copy of any such affidavit shall be served by the Board on the appellant.

(7) Except with the leave of the Court, an appellant shall not be entitled on the hearing of an appeal to rely on any grounds of appeal not specified in the notice referred to in paragraph (2)(b).

[E.r. 2]

Case stated: notice to be given of certain matters

3.  Not less than 10 days before the hearing of such a case as is mentioned in rule 1(a) either party must give notice to the other of any point which he intends to take at the hearing and which might take the other party by surprise and leave at the Chancery Office two copies of the notice for the use of the Court.

[E.r. 4]

Appeals under ss. 53 and 100 of Taxes Management Act 1970 and paragraphs 32(3) and 35(2) of Schedule 4 to the Finance Act 1975

4.—(1) The notice of an originating motion by which an appeal under section 53 or 100 of the Taxes Management Act 1970 or paragraph 32(3) or 35(2) of Schedule 4 to the Finance Act 1975 is brought must be issued out of the Chancery Office.

(2) The persons to be served with the notice are the General or Special Commissioners against whose decision or award the appeal is brought and—

(a) in the case of an appeal brought under section 100 of the Taxes Management Act 1970 or paragraph 32(3) of Schedule 4 to the Finance Act 1975 by any party other than the defendant in the proceedings before the Commissioners, that defendant;

(b) in any other case, the Commissioners of Inland Revenue.

(3) Order 55, rules 14(2) and 15(1), shall apply in relation to any such appeal as if for the period of 21 days therein specified there were substituted a period of 30 days.

(4) Within 30 days after the service on them of notice of the originating motion by which any such appeal is brought, the General or Special Commissioners, as the case may be, must lodge in the Chancery Office two copies of a note of their findings and of the reasons for their decision or award and must serve a copy of the note on every other party to the appeal.

(5) Any document required or authorised to be served on the General or Special Commissioners in proceedings to which this rule relates may be served by delivering or sending it to their clerk.

[E.r. 5.]

ORDER 92 LODGMENT, INVESTMENT, ETC. OF FUNDS IN COURT : CHANCERY DIVISION

Payment into court by life assurance company

1.—(1) A company wishing to make a payment into court under the Life Assurance Companies (Payment into Court) Act 1896(24) (hereinafter referred to as “the Act of 1896”) must file an affidavit, made by its secretary or other authorised officer, setting out—

(a) a short description of the policy in question and a statement of the persons entitled thereunder with their names and addresses so far as known to the company,

(b) a short statement of the notices received by the company claiming an interest in or title to the money assured, or withdrawing any such claim, with the dates of receipt thereof and the names and addresses of the persons by whom they were given,

(c) a statement that, in the opinion of the board of directors of the company, no sufficient discharge can be obtained otherwise than by payment into court under the Act of 1896,

(d) the submission by the company to pay into court such other sum, if any, as the Court may direct and to pay any costs ordered by the Court to be paid by the company.

(e) an undertaking by the company forthwith to send to the Accountant General any notice of claim received by the company after the making of the affidavit with a letter referring to the title of the affidavit, and

(f) an address where the company may be served with any summons or order, or notice of any proceeding, relating to the money paid into court.

(2) The company shall not deduct from the money payable by them under the policy any costs of or incidental to the payment into court.

(3) No payment shall be made into court under the Act of 1896 where any action to which the company is a party is pending in relation to the policy or moneys thereby assured except with the leave of the Court to be obtained by summons in the action.

(4) Unless the Court otherwise directs, a summons by which a claim with respect to money paid into court under the Act of 1896 is made shall not, except where the summons includes an application for payment of a further sum of costs by the company who made the payment, be served on that company, but it must be served on every person who appears by the affidavit on which the payment into court was made to be entitled to, or interested in, the money in court or to have a claim upon it or who has given a notice of claim which has been sent to the Accountant General in accordance With the undertaking referred to in rule 1(1)(e).

[E.r. 1]

Payment into court under Trustee Act (Northern Ireland) 1958

2.—(1) Subject to paragraph (2), any trustee wishing to make a payment into court under section 63 of the Trustee Act (Northern Ireland) 1958(25) must make and file an affidavit setting out—

(a) a short description of the trust and of the instrument creating it or, as the case may be, of the circumstances in which the trust arose,

(b) the names of the persons interested in or entitled to the money or securities to be paid into court with their addresses so far as known to him,

(c) his submission to answer all such inquiries relating to the application of such money or securities as the Court may make or direct, and

(d) an address where he may be served with any summons or order, or notice of any proceedings, relating to the money or securities paid into court.

(2) Where the money or securities represents a legacy, or residue or any share thereof, to which a minor or a person resident outside the United Kingdom is absolutely entitled, no affidavit need be filed under paragraph (1) and the money or securities may be paid into court in the manner prescribed by court funds rules made under section 82 of the Act.

[E.r. 2]

Payment into court under War Damage Act 1943

3.  Where the Commissioners of Inland Revenue wish to make a payment into court under section 33(1) of the War Damage Act 1943(26) in respect of war damage to a hereditament, they shall cause an affidavit to be made and filed setting out—

(a) short particulars of the hereditament;

(b) the name and address of any person who has claimed a payment in respect of war damage to the hereditament or a share of such payment, and

(c) the grounds on which the Commissioners wish to make the payment into court.

[E.r. 3]

Notice of lodgment

4.  Any person who has lodged money or securities in court in accordance with rule 1, 2 or 3 must forthwith send notice of the lodgment to every person appearing from the affidavit on which the lodgment was made to be entitled to, or to have an interest in, the money or securities lodged.

[E.r. 4]

Applications with respect to funds in court

5.—(1) Where an application to the High Court—

(a) for the payment or transfer to any person of any funds in court standing to the credit of any cause or matter or for the transfer of any such funds to a separate account or for the payment to any person of any dividend of or interest on any securities or money comprised in such funds;

(b) for the investment, or change of investment, of any funds in court;

(c) for payment of the dividends of or interest on any funds in court representing or comprising money or securities lodged in court under any enactment, or

(d) for the payment or transfer out of court of any such funds as are mentioned in sub-paragraph (c);

is made in the Chancery Division the application may be disposed of in chambers.

(2) Subject to paragraph (3), any such application made in the Chancery Division must be made by summons and, unless the application is made in a pending cause or matter or an application for the same purpose has previously been made by petition or originating summons, the summons must be an originating summons.

(3) Where an application under paragraph 1(d) is required to be made by originating summons, then, if the funds to which the application relates do not exceed £500 in value the application may be made ex parte to the Master who may dispose of the application or may direct it to be made by originating summons.

Unless otherwise directed, an ex parte application under this paragraph shall be made by affidavit.

(4) This rule does not apply to any application for an order under Order 22.

[E.r. 5]

ORDER 93 APPLICATIONS AND APPEALS TO THE HIGH COURT UNDER VARIOUS ENACTMENTS: CHANCERY DIVISION

Appeals, applications etc. under various enactments

1.—(1) Any appeal, application or reference to the High Court under any of the enactments referred to in paragraph (2), whether it is for the decision or opinion of the Court shall be assigned to the Chancery Division.

(2) The enactments are:—

(a) section 55 of the National Debt Act 1870(27),

(b) the Land Purchase Acts,

(c) the Vendor and Purchaser Act 1874(28),

(d) the Conveyancing Acts 1881 to 1911,

(e) section 17 of the Married Women's Property Act 1882(29),

(f) the Settled Land Acts 1882 to 1890,

(g) the Trade Union Act 1913(30),

(h) the Trustee Act (Northern Ireland) 1958(31),

(i) the Charities Act (Northern Ireland) 1964(32),

(j) the Building Societies Act (Northern Ireland) 1967(33),

(k) the Industrial and Provident Societies Act (Northern Ireland) 1969(34),

(l) section 7(3) of the Public Order Amendment Act (Northern Ireland) 1970(35),

(m) the Land Registration Act (Northern Ireland) 1970(36),

(n) the Friendly Societies Act (Northern Ireland) 1970(37),

(o) the Industrial Assurance (Northern Ireland) Order 1979(38).

(3) At any stage of the proceedings on an appeal under the enactments mentioned in paragraph (2) (g) (j) (k) (m) (n) and (o) the Court may direct that notice of the originating motion by which the appeal is brought be served on any person or may direct that notice be given by advertisement or otherwise of the bringing of the appeal, the nature thereof and the time when it will or is likely to be heard or may give such other directions as it thinks proper for enabling any person interested in the trade union, alleged trade union, society, or industrial assurance company concerned or in the subject matter of the appeal to appear and be heard on the appeal.

(4) An application for directions under paragraph (3) may be made by either party to the appeal by summons to the Judge in Chambers.

[E.rr. 4, 10 and 12]

Notice of petition under section 55 of National Debt Act 1870

2.  Where a petition is presented under section 55 of the National Debt Act 1870 the petitioner must, before the petition is heard, apply to the Chancery Judge in chambers for directions with respect to giving notice of the claim to which the petition relates, and the judge may direct that notice thereof be given by advertisement or in such other manner as he may direct or may dispense with the giving of such notice.

[E.r. 1]

Applications under section 57 of the Trustee Act (Northern Ireland) 1958

3.  In addition to any other persons who are necessary and proper defendants to the originating summons by which an application under section 57 of the Trustee Act (Northern Ireland) 1958 is made, the settlor and any other person who provided property for the purposes of the trusts to which the application relates must, if still alive and not the plaintiff, be made a defendant unless the Court for some special reason otherwise directs.

[E.r. 6(2)]

Application under section 7(3) of Public Order (Amendment) Act (Northern Ireland) 1970

4.—(1) Where an application is made to the High Court under section 7(3) of the Public Order (Amendment) Act (Northern Ireland) 1970 the persons to be made defendants to the originating summons by which such an application is made shall be such persons as the Attorney General may determine.

(2) In the absence of other sufficient representation the Court may appoint the Official Solicitor to represent any interests which in the opinion of the Court ought to be represented on any inquiry directed by the Court under the said section 7(3).

[E.r. 5]

Appeal under Article 18 of the Industrial Assurance (Northern Ireland) Order 1979

5.—(1) An application to the Court for leave to appeal under Article 18 of the Industrial Assurance (Northern Ireland) Order 1979 against a direction of the Industrial Assurance Commissioner for Northern Ireland under Article 18(3) of that Order must be made within 21 days after the date of the Commissioner's direction.

(2) An application for the grant of such leave must be made in chambers ex parte by an affidavit stating the material facts, the effect of the Commissioner's direction, the grounds on which the application is made and that the deponent is advised and believes that the applicant has good grounds for appealing.

(3) No order under this rule granting leave to appeal shall be drawn up but the Master shall indorse oh the notice of originating motion by which the appeal is brought a note signed by him stating that leave to appeal was granted by the Court and the date on which it was granted.

A copy of such note shall appear on any copy of such notice served on a respondent to the appeal.

(4) Notice of the originating motion by which the appeal is brought must be served, and the appeal entered within 28 days after leave to appeal was granted.

[E.r. 11]

ORDER 94

[No Order made]

ORDER 95 THE BILLS OF SALE (IRELAND) ACTS 1879 AND 1883 AND THE INDUSTRIAL AND PROVIDENT SOCIETIES ACT (NORTHERN IRELAND) 1969

Rectification of register

1.—(1) Every application to the Court under section 14 of the Bills of Sale (Ireland) Act 1879(39) for an order—

(a) that any omission to register a bill of sale or an affidavit of renewal thereof within the time prescribed by that Act be rectified by extending the time for such registration, or

(b) that any omission or mis-statement of the name, residence or occupation of any person be rectified by the insertion in the register of his true name, residence or occupation,

must be made by affidavit ex parte to the Master.

(2) Every application for such an order as is described in paragraph (1) shall be supported by an affidavit setting out particulars of the bill of sale and of the omission or mis-statement in question and stating the grounds on which the application is made.

[E.r. 1]

Entry of satisfaction

2.—(1) Every application under section 15 of the Bills of Sale (Ireland) Act 1879 to the Master for an order that a memorandum of satisfaction be written on a registered copy of a bill of sale must—

(a) if a consent to the satisfaction signed by the person entitled to the benefit of the bill of sale can be obtained, be made ex parte;

(b) in all other cases, be made by originating summons.

(2) An ex parte application under paragraph (1)(a) must be supported by—

(a) particulars of the consent referred to in that paragraph, and

(b) an affidavit by a witness who attested the consent certifying the signature on it.

(3) An originating summons under paragraph (1)(b) must be served on the person entitled to the benefit of the bill of sale and must be supported by evidence that the debt (if any) for which the bill of sale was made has been satisfied or discharged.

(4) No appearance need be entered to an originating summons under paragraph (1)(b).

[E.r. 2]

Restraining removal on sale of goods seized

3.  No appearance need be entered to an originating summons by which an application to the Court under the proviso to section 7 of the Bills of Sale (Ireland) Act (1879) (Amendment) Act 1883(40) must be made.

[E.r. 3]

Search of register

4.  Any person shall be entitled to search the register of bills of sale on payment of the prescribed fee and to inspect, examine and make extracts from any registered bill of sale, without being required to make a written application, or to specify any particulars in reference thereto, such extracts not to exceed date of execution, registration, renewal of registration, satisfaction, names, addresses and occupation of parties, and amount of consideration.

Transmission of abstract etc. to county court

5.—(1) The abstract or the contents of any bill of sale required by section 11 of the Bills of Sale (Ireland) Act (1879) Amendment Act 1883 to be transferred to the chief clerk of a county court division shall be in Form No. 42 in Appendix A—

(2) Where a bill of sale is re-registered under section 11 of the Bills of Sale (Ireland) Act 1879, an abstract of the re-registration shall be transmitted by post to the chief clerk to whom such abstract would have been transmitted had the bill of sale been registered under, the Bills of Sale (Ireland) Act (1879) Amendment Act 1883.

(3) Where a memorandum of satisfaction is written under section 15 of the Bills of Sale (Ireland) Act 1879 upon any registered or re-registered copy of a bill of sale, an abstract of which has been transmitted to any chief clerk, a notice of such satisfaction, in Form No. 43 in Appendix A, shall be transmitted to each clerk to whom au abstract of such bill of sale has been transmitted.

Local registration

6.—(1) The chief clerk of a county court (hereinafter called “ the clerk”) shall number the abstracts and notices of satisfaction in the order in which they shall respectively be received by him and shall file and keep them in his office.

(2) The clerk shall keep an index, alphabetically arranged, in which he shall enter tinder the first letter of the surname of the mortgagor or assignor, such surname with the forenames, address and description, and the number which has been affixed to the abstract.

(3) Upon receipt of a notice of satisfaction, the clerk shall enter the notice of satisfaction on the abstract of the bill to which it relates and shall note in the index against the name of the mortgagor or assignor the fact of the satisfaction having been entered.

(4) The clerk shall allow any person to search the index at any time during which be is required for the time being to keep his office open, upon payment by such person of a fee of 50 pence, and to make extracts from the abstract and notice of satisfaction (if any), upon payment of 50 pence for each abstract inspected.

(5) The clerk shall also, if required, cause an office copy to be made of any abstract or notice of satisfaction and shall be entitled for making and marking the same to the same fee as is payable to the Central Office.

Application under section 29(5) of the Industrial and Provident Societies Act (Northern Ireland) 1969

7.  Every application to the Court under section 29(5) of the Industrial and Provident Societies Act (Northern Ireland) 1969(41) for an order—

(a) that the period for making an application for recording a charge be extended, or

(b) that any omission from or mis-statement in such an application be rectified,

must be made to the Master ex parte by affidavit setting out particulars of the charge and of the omissions or mis-statement in question and stating the grounds of the application.

[E.r. 5]

Interpretation

8.  In this Order, “ the Master” means the Master (Queen's Bench and Appeals) or such other officer serving in the Supreme Court as the Lord Chief Justice may designate to be the registrar for the purposes of the Bills of Sale (Ireland) Act 1879.

ORDER 96 THE DEEDS OF ARRANGEMENT ACT 1887 AND THE DEEDS OF ARRANGEMENT AMENDMENT ACT 1890

Interpretation

1.—(1) In the rules of this Order, unless the context or subject matter otherwise requires—

“the 1887 Act” means the Deeds of Arrangement Act 1887(42);

“the 1890 Act” means the Deeds of Arrangement Amendment Act, 1890(43);

“debtor” means any person by, for, or in respect of whose affairs a deed of arrangement, as defined by the 1887 Act, shall be made or entered into and includes a firm of persons in co-partnership;

“deed” means any deed of arrangement as defined by the 1887 Act.

(2) Any terms and expressions defined by the said Acts shall have meanings assigned to them thereby.

Affidavit to register deed

2.  The affidavits to be filed pursuant to section 6 of the 1887 Act shall be in the Forms Nos. 44 and 45 in Appendix A with such variations as circumstances may require.

Form of register under 1887 Act

3.  The abstract of the contents of any deed to be entered on the register under the 1887 Act shall be in Form No. 46 in Appendix A.

lndorsement of copy deed

4.  Upon every copy of a deed which is presented for filing there shall be indorsed, by the person who presents it, the name of the debtor, the date of the deed, and of the filing thereof, the total amount of duty with which the deed is stamped, and a certificate signed by the solicitor of the debtor or the person who presents the copy for filing, certifying that the copy is a correct copy of the deed, and stating the number of folios (of seventy-two words each), which the deed contains.

Certificate of registration

5.  When a deed is registered under the said Acts there shall be written on the original deed a certificate stating that the deed has been duly registered as prescribed by the said Acts, and the date of registration.

Extracts from deed

6.  Extracts from the filed copy of a deed shall be limited to the date of execution and registration, the names, addresses, and descriptions of the debtor, and the parties to the deed, and a short statement of the nature and effect of the deed.

Copy of affidavit etc. under 1890 Act

7.  A copy petition, affidavit or order to be filed pursuant to section 2 of the 1890 Act may be a copy produced by photographic or other process giving a positive, clear and permanent representation free from blemishes.

Form of register under 1890 Act

8.  The abstract of the contents of any documents to be entered on the Register under the 1890 Act, shall be in the Form No. 47 in Appendix A.

Abstract of documents under 1890 Act

9.  Abstracts from any document filed under the 1890 Act, shall be limited to the date of the petition and order in bankruptcy mentioned in section 2, (1) and (3), of the said Act the name, address, and description of the debtor, and a short statement of the nature and effect of the resolution of creditors confirmed by the said order in bankruptcy.

Rectification of register

10.—(1) Every application to the Court under section 9 of the 1887 Act for an order—

(a) that any omission to register a deed of arrangement within the time prescribed by that Act or the 1890 Act be rectified by extending the time for such registration, or

(b) that any omission or mis-statement of the name, residence or description of any person be rectified by the insertion in the register of his true name, residence or description,

must be made ex parte to the Master (Queen's Bench and Appeals).

(2) The affidavit must set out particulars of the deed of arrangement and of the omission or mis-statement in question and must state the grounds on which the application is made.

ORDER 97 NON-CONTENTIOUS PROBATE PROCEEDINGS

lnterpretation

1.—(1) In this Order unless the context otherwise requires—

“the Order” means the Administration of Estates (Northern Ireland) Order 1979(44);

“authorised officer” means any officer of the Office or a branch office who is for the time being authorised by the Lord Chief Justice to administer any oath or take any affidavit required for any purpose connected with his duties;

“grant” means a grant of probate or administration;

“the Judge” means the Judge for the time being to whom the business of the Family Division is assigned under section 17 of the Act and any judge of the High Court exercising jurisdiction in probate causes and matters;

“the Office” means the Probate and Matrimonial Office of the Family Division;

“Master” in rules 3, 4, 5, 7, 8, 9(1) and (2), 10, 11, 12, 13, 14, 15, 17, 18, 20(6), 26(1), 31, 32; 37, 38, 58, 59 and 60 includes a circuit registrar in relation to an applicant for a grant made or proposed to be made at a branch office;

“personal applicant” means a person other than a trust corporation who seeks to obtain a grant without employing a solicitor, and

“personal application” has a corresponding meaning.

(2) A form referred to by number means the form so numbered in Appendix C; and such forms shall be used whenever applicable, with such variations as the Master may in any particular case direct or approve.

[E. Non-Contentious Probate Rules: r. 2]

Applications for grants through solicitors

2.—(1) A person applying for a grant through a solicitor may apply otherwise than by post at the Office or any branch office and may apply by post at any branch office.

(2) Every solicitor through whom an application for a grant is made shall give the address of his place of business within the jurisdiction.

[E.r. 3]

Personal Applications

3.—(1) A personal applicant may apply for a grant otherwise than by post at the Office or any branch office.

(2) A personal applicant may not apply through an agent, whether paid or unpaid, and may not be attended by any person acting or appearing to act as his adviser.

(3) No personal application shall be received or proceeded with if—

(a) it becomes necessary to bring the matter before the Court on motion or by action;

(b) an application has already been made by a solicitor on behalf of the applicant and has not been withdrawn;

(c) the Master otherwise directs.

(4) After a will has been deposited in the Office or any branch office by a personal applicant, it may not be delivered to the applicant or to any other person unless in special circumstances the Master so directs.

(5) A personal applicant shall produce a certificate of the death of the deceased or such other evidence of the death as the Master may approve.

(6) A personal applicant shall supply all information necessary to enable the papers leading to the grant to be prepared in the Office or branch office as the case may be, or may himself prepare such papers and lodge them unsworn.

(7) Unless the Master otherwise directs, every oath, affidavit or guarantee required on a personal application (other than a guarantee given by a corporation in accordance with rule 38), shall be sworn or executed by all the deponents or sureties before an authorised officer.

(8) No legal advice shall be given to a personal applicant by any officer of the Office or branch office and every such officer shall be responsible only for embodying in proper form the applicant's instructions for the grant.

[E.r. 4]

Duty of Master on receiving application for grant

4.—(1) The Master shall not allow any grant to issue until all inquiries which he may see fit to make have been answered to his satisfaction.

(2) The Master may require proof of the identity of the deceased or of the applicant for the grant beyond that contained in the oath.

(3) Except with the leave of the Master, no grant of probate or of administration with the will annexed shall issue within seven days of the death of the deceased and no grant of administration shall issue within fourteen days thereof;

[E.r. 5]

Oath in support of grant

5.—(1) Every application for a grant shall be supported by an oath in the form applicable to the circumstances of the case, which shall be contained in an affidavit sworn by the applicant, and by such other papers as the Master may require.

(2) On an application for a grant of administration the oath shall state whether, and if so, in what manner, all persons having a prior right to a grant have been cleared off.

(3) Unless otherwise directed by the Master, the oath shall state where the deceased died domiciled.

[E.r. 6]

Grant in additional name

6.  Where it is necessary to describe the deceased in a grant by some name in addition to his true name, the applicant shall state in the oath the true name of the deceased and shall depose that some part of the estate, specifying it, was held in the other name, or as to any other reason that there may be for the inclusion of the other name in the grant.

[E.r. 7]

Marking of wills

7.  Every will in respect of which an application for a grant is made shall be marked by the signatures of the applicant and the person before whom the oath is sworn, and shall be exhibited to any affidavit which may be required under this Order as to the validity, terms, condition or date of execution of the will;

Provided that where the Master is satisfied that compliance with this rule might result in the loss of the will, he may allow a photographic copy thereof to be marked or exhibited in lieu of the original document.

[E.r. 8]

Engrossments for purposes of record

8.—(1) Where the Master considers that in any particular case a photographic copy of the original will would not be satisfactory for purposes of record, he may require an engrossment suitable for photographic reproduction to be lodged.

(2) Where a will contains alterations which are net admissible to proof, there shall be lodged an engrossment of the will in the form in which it is to be proved.

(3) Any engrossment lodged under this rule shall reproduce the punctuation, spacing and division into paragraphs of the will and, if it is one to which paragraph (2) of this rule applies, it shall be made book-wise on durable paper following continuously from page to page on both sides of the paper.

(4) Where any pencil writing appears on a will, there shall be lodged a copy of the will or of the pages or sheets containing the pencil writing, in which there shall be underlined in red ink those portions which appear in pencil in the original.

[E.r. 9]

Evidence as to due execution of will

9.—(1) Where a will contains no attestation clause or the attestation clause is insufficient or where it appears to the Master that there is some doubt about the due execution of the will, he shall, before admitting it to proof, require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present at the time the will was executed.

(2) If no affidavit can be obtained in accordance with the last foregoing paragraph, the Master may, if he thinks fit having regard to the desirability of protecting the interests of any person who may be prejudiced by the will, accept evidence on affidavit from any person he may think fit to show that the signature on the will is in the handwriting of the deceased, or of any other matter which may raise a presumption in favour of the due execution of the will.

(3) If the Master, after considering the evidence—

(a) is satisfied that the will was not duly executed, he shall refuse probate and shall mark the will accordingly;

(b) is doubtful whether the will was duly executed, he may refer the matter to the court on motion.

[E.r. 10]

Execution of will of blind or illiterate testator

10.  Before admitting to proof a will which appears to have been signed by a blind or illiterate testator or by another person by direction of the testator, or which for any other reason gives rise to doubt as to the testator having had knowledge of the contents of the will at the time of its execution, the Master shall satisfy himself that the testator had such knowledge.

[E.r. 11]

Evidence as to terms, conditions and date of execution of will

11.—(1) Where there appears in a will any obliteration, interlineation, or other alteration which is not authenticated in the manner prescribed by section 21 of the Wills Act 1837(45), or by the re-execution of the will or by the execution of a codicil, the Master shall require evidence to show whether the alteration was present at the time the will was executed and shall give directions as to the form in which the will is to be proved :

Provided that this paragraph shall not apply to any alteration which apply appears to the Master to be of no practical importance.

(2) If from any mark on the will it appears to the Master that some other document has been attached to the will, or if a will contains any reference to another document in such terms as to suggest that it ought to be incorporated in the will, the Master may require the document to be produced and may call for such evidence in regard to the attaching or incorporation of the document as he may think fit.

(3) Where there is doubt as to the date on which a will was executed, the Master may require such evidence as he thinks necessary to establish the date.

[E.r. 12]

Attempted revocation of will

12.  Any appearance of attempted revocation of a will by burning, tearing or otherwise, and every other circumstance leading to a presumption of revocation by the testator, shall be accounted for to the Master's satisfaction.

[E.r. 13]

Affidavit as to due, execution, terms, etc. of will

13.  The Master may require an affidavit from any person he may think fit for the purpose of satisfying himself as to any of the matters referred to in rules 10, 11 and 12, and in any such affidavit sworn by an attesting witness or other person present at the time of the execution of a will the deponent shall depose to the manner in which the will was executed.

[E.r. 14]

Wills not proved under section 9 of the Wills Act, 1837

14.  Nothing in rule 9, 10, 11 or 12 shall apply to any will which it is sought to establish otherwise than by reference to section 9 of the Wills Act, 1837, as explained by the Wills Act Amendment Act, 1852(46), but the terms and validity of any such will shall be established to the Master's satisfaction.

[E.r. 15]

Wills of persons on military service and seamen

15.  If it appears to the Master that there is prima facie evidence that a will is one to which section 11 of the Wills Act, 1837, as amended by any subsequent statutory provision applies, the will may be admitted to proof if the Master is satisfied that it was signed by the testator or, if unsigned, that it is in the testator's handwriting.

[E.r. 16]

Wills of naval personnel

16.  Every application for a grant in respect of the estate of a person who has at any time served in the capacity to which the Navy and Marines (Wills) Act 1865(47) applies shall be supported by a certificate of the Inspector of Seamen's Wills as to the existence of any will in his custody :

Provided that no such certificate shall be required where—

(a) the application relates to a will made after the deceased had ceased to serve in such capacity as aforesaid which revokes all previous wills made by him, or

(b) the deceased was at the date of his death in receipt of a pension in respect of his service.

[E.r. 17]

Evidence of foreign law

17.  Where evidence as to the law of any country or territory outside Northern Ireland is required on any application for a grant, the Master may accept an affidavit from any person whom, having regard to the particulars of his knowledge or experience given in the affidavit, he regards as suitably qualified to give expert evidence of the law in question.

[E.r. 18]

Order of priority for grant where deceased left a will

18.  Where the deceased died on or after the 1st January 1956 domiciled in Northern Ireland, the person or persons entitled to a grant of probate or administration with the will annexed shall be determined in accordance with the following order of priority, namely : —

(i) The executor;

(ii) Any residuary legatee or devisee holding in trust for any other person;

(iii) Any residuary legatee or devisee for life;

(iv) The ultimate residuary legatee or devisee, or subject to paragraph (3) of rule 22 the personal representative of any such person; or where the residue is not wholly disposed of by the will, any person (other than a creditor) entitled to a grant in the event of a total intestacy according to the priority set out in rule 20 if such person has an interest in the undisposed of residue (including the nominee of Her Majesty under Article 10 of the Order when claiming bona vacantia on behalf of the Crown)

Provided that where the residue is not in terms wholly disposed of, the Master may, if he is satisfied that, the testator bas nevertheless disposed of the whole or substantially the whole of the estate as ascertained at the time of the application for the grant, allow a grant to be made (subject however to rule 37) to any legatee or devisee entitled to, or to a share in, the estate so disposed of, without regard to the persons entitled to share in any residue not disposed of by the will;

(v) Any specific legatee or devisee or any creditor or, subject to paragraph (3) of rule 22, the personal representative of any such person or, where the estate is not wholly disposed of by will, any person who, notwithstanding that the amount of the estate is such that he has no immediate beneficial interest therein, may have a beneficial interest in the event of an accretion thereto;

(vi) Any legatee or devisee whether residuary or specific entitled on the happening of any contingency, or any person having no interest under the will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate.

[E.r. 19]

Grants to attesting witnesses, etc.

19.  Where a gift to any person fails by reason of section 15 of the Wills Act 1837 (which provides that gifts to attesting witnesses or their spouses shall be void), such person shall not have any right to a grant as a beneficiary named in the will, without prejudice to his right to a grant in any other capacity.

[E.r. 20]

Order of priority for grant in case of intestacy

20.—(1) Where the deceased died on or after the 1st January 1956, wholly intestate and domiciled in Northern Ireland, the persons having a beneficial interest in the estate of the deceased shall be entitled to a grant of administration in the following order of priority, namely :—

(i) The surviving spouse;

(ii) The children of the deceased (including any persons entitled by virtue of any enactment to be treated as if they Were the children of the deceased born in lawful wedlock); or the issue (taking per stirpes) of any child who has died during the lifetime of the deceased;

(iii) The father or mother of the deceased or, in the case of an illegitimate person who died before 1st January 1978 without having been legitimated, the mother;

(iv) Brothers and sisters of the deceased (whether of the whole or half-blood); or the issue (taking per stirpes) of any deceased brother or sister (whether of the whole or half-blood) who has died during the lifetime of the deceased.

(2) If the deceased died wholly intestate leaving no spouse and if no person in any of the classes mentioned in sub-paragraphs (ii) to (iv) of paragraph (1) has survived the deceased the persons hereinafter described shall, if they have a beneficial interest in the estate of the deceased, be entitled to a grant in the following order of priority, namely :—

(i) Grandparents;

(ii) Uncles and aunts (whether of the whole or half-blood); or the issue (taking per stirpes) of any uncle or aunt (whether of the whole or half-blood) who has died during the lifetime of the deceased;

(iii) Great-grandparents;

(iv) Grand-uncles and grand-aunts (whether of the whole or half-blood);

(v) Great-great-grandparents;

(vi) Great-grand-uncles and great-grand-aunts (whether of the whole or half-blood); or children of grand-uncles and of grand-aunts (whether of the whole or half-blood);

(vii) Great-great-great-grandparents;

(viii) Children of the children of grand-uncles and of grand-aunts (whether of the whole or half-blood); or children of great-granduncles and of great-grand-aunts (whether of the whole or half-blood); or uncles or aunts (whether of the whole or half-blood) or great-grandparents;

(ix) Other next of kin of nearest degree (whether of the whole or half-blood).

(3) The personal representative of any of the persons hereinbefore mentioned shall have the same right to a grant as the person whom he represents, subject to paragraph (3) of rule 22 which provides that live interests be preferred to dead interests.

(4) Where there are conflicting claims for a grant among the members of a class entitled to administration, the nearer in kin to the deceased of that class shall be preferred to the more remote unless the Master otherwise directs.

(5) In default of any person having a beneficial interest in the estate of the deceased, the nominee of Her Majesty, under Article 10 of the Order shall be entitled to a grant.

(6) If all persons entitled to a grant under the foregoing provisions of this rule have been cleared off, a grant may be made to a creditor of the deceased, or, subject to paragraph (3) of rule 22, the personal representative of a creditor, or, if the Master so directs, to any person who, notwithstanding that he has no immediate beneficial interest in the estate, may have a beneficial interest in the event of an accretion thereto.

(7) The provisions of the Adoption of Children Act (Northern Ireland) 1967(48), shall apply in determining the title to a grant as they apply to the devolution of property on intestacy.

(8) In this rule where the deceased died on or after the 1st January 1978 illegitimate the reference to father or mother of the deceased shall have effect as if it were a reference to the natural father or mother of the deceased.

[E.r. 21]

Right of assignee to a grant

21.—(1) Where all the persons entitled to the estate of the deceased (whether under a will or on intestacy) have assigned their whole interest in the estate to one or more persons, the assignee of assignees shall replace, in the order of priority for a grant of administration, the assignor or, if there are two or more assignors, the assignor with the highest priority.

(2) Where there are two or more assignees, administration may be granted with the consent of the others to any one or more (not exceeding four) of them.

(3) In any case where administration is applied for by an assignee, a copy of the instrument of assignment shall be lodged in the Office or branch office as the case may be.

[E.r. 22]

Grants where two or more persons entitled in the same class

22.—(1) A grant may be made to any person entitled thereto without notice to other persons entitled in the same class.

(2) A dispute between the members of a class entitled to a grant shall be brought by summons before the Master.

(3) Unless the Master otherwise directs, administration shall be granted to a living member of a class entitled thereto in preference to the personal representative of a member of such class who has died after the deceased and to a person not under disability in preference to an infant entitled in the same class.

(4) If the issue of a summons under this rule is known to the Master he shall not allow any grant to be sealed until such summons is finally disposed of.

[E.r. 25]

Exceptions to rules as to priority

23.—(1) Nothing in rule 18, 20 or 22 shall operate to prevent a grant being made to any person to whom a grant may or may require to be made under any statutory provision.

(2) The rules mentioned in the last foregoing paragraph shall not apply where the deceased died domiciled outside Northern Ireland, except in a case to which the proviso to rule 25 applies.

[E.r. 26]

Grants to persons having spes successionis

24.  When the beneficial interest in the whole estate of the deceased is vested absolutely in a person who has renounced his right to a grant and has consented to administration being granted to the person or persons who would be entitled to his estate if he himself had died intestate, administration may be granted to such person or one or more (not exceeding four) of such, persons;

Provided that a surviving spouse shall not be regarded as a person in whom the estate has vested absolutely unless he would be entitled to the whole of the estate, whatever its value may be.

[E.r. 27]

Grants where the deceased died domiciled outside Northern Ireland

25.  Where the deceased died on or after the 1st January 1956, domiciled outside Northern Ireland, a grant of administration with or without the will annexed may be made by the Master—

(a) to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled,

(b) to the person entitled to administer the estate by the law of the place where the deceased died domiciled,

(c) if there is no such person as is mentioned in paragraph (a) or (b) of this rule or if in the opinion of the Master; the circumstances so require, to such person as the Master may direct;

Provided that :

(a) probate of any will which is admissible to proof may be granted—

(i) if the will is in the English language, to the executor named therein;

(ii) if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person;

(b) where the whole of the estate in Northern Ireland consists of immovable property, a grant limited thereto may be made in accordance with the law which would have been applicable if the deceased had died domiciled in Northern Ireland.

[E.r. 29]

Grants, to attorneys

26.—(1) Where a person entitled to a grant resides outside Northern Ireland, administration may be granted to his lawfully constituted attorney for his use and benefit, limited until such person shall obtain a grant or in such other way as the Master may direct;

Provided that where the person so entitled is an executor, administration shall not be granted to his attorney without notice to the other executors, if any, unless such notice is dispensed with by the Master:

(2) Where the Master is satisfied by affidavit that it is desirable for a grant to be made to the lawfully constituted attorney of a person entitled to a grant of administration and resident in Northern Ireland, he may direct that administration be granted to such attorney for the use and benefit of such person, limited until such person shall obtain a grant or in such other way as the Master may direct.

[E.r. 30]

Grants on behalf of minors

27.—(1) Where the person to whom a grant would otherwise be made is a minor, administration for his use and benefit until he attains the age of eighteen years shall, subject to paragraphs (3) and (4) of this rule, be granted—

(a) to the testamentary guardian of the minor or to any guardian appointed by a court of competent jurisdiction, or by or under the provisions of the Guardianship of Infants Act 1886(49), or

(b) if there is no such guardian able and willing to act and the minor has attained the age of sixteen years, to any next of kin nominated by the minor or, where the minor is a married woman, to any such next of kin or to her husband if nominated by her.

(2) Any person nominated under sub-paragraph (b) of the last foregoing paragraph may represent any other minor whose next of kin he is, being a minor below the age of sixteen years entitled in the same class as the minor who made the nomination.

(3) Notwithstanding anything in this rule, administration for the use and benefit of the minor until he attains the age of eighteen years may be granted to any person assigned as guardian by order of the Master in default of, or jointly with, or to the exclusion of, any such person as is mentioned in paragraph (1) of this rule; and such an order may be made on application by the intended guardian, who shall file an affidavit in support of the application and, if required by the Master, an affidavit of fitness sworn-by a responsible person.

(4) Where a minor who is sole executor has no interest in the residuary estate of the deceased, administration for the use and benefit of the minor until he attains the age of eighteen years and applies for and attains a grant shall, unless the Master otherwise directs, be granted to the person entitled to the residuary estate.

(5) A minor's right to administration may be renounced only by a person assigned as guardian under paragraph -(3) of this rule and authorised to renounce by the Master.

(6) A grant to a guardian on behalf of a minor shall be made for his use and benefit until he shall attain the age of eighteen years and shall apply for and obtain a grant, and a grant on behalf of more than one minor shall be made for their use and benefit until one of them shall attain the age of eighteen years and shall apply for and obtain a grant.

(7) If under paragraph (3) of rule 22 the Master directs a grant to be given for the use and benefit of a minor notwithstanding that there is a person of full age not under disability entitled to apply for a grant, he may also direct that the grant to the guardian of the minor be further limited until such person applies for and obtains a grant.

(8) Where a grant is given for the use and benefit of a minor and there is any other minor entitled to apply for a grant for whose use and benefit a grant has not been obtained, the Master may direct that the grant be further limited until such other minor attains the age of eighteen years and applies for and obtains a grant.

(9) Before giving a grant to any guardian of a minor the Master may require to be satisfied as to his fitness to act.

[E.r. 31]

Grants where minor co-executor

28.—(1) Where one of two or more executors is a minor, probate may be granted to the other executor or executors not under disability, with power reserved of making the like grant to the minor on his attaining the age of eighteen years, and administration for the use and benefit of the minor until he attains the age of eighteen years and applies for and obtains a grant may be granted under rule 27 if and only if the executors who are not under disability renounce or, on being cited to accept or refuse a grant, fail to make an effective application therefor.

(2) A minor executor's right to probate on attaining the age of eighteen years may not be renounced by any person on his behalf.

[E.r. 32]

Grants in case of mental or physical incapacity

29.—(1) Where the Master is satisfied that a person entitled to a grant is by reason of mental or physical incapacity incapable of managing his affairs, administration for his use and benefit, limited during his incapacity or in such other way as such Master may direct, may be granted—

(a) in the case of mental incapacity, to the person authorised by an order of the Master of the Office of Care and Protection to apply for the grant, or

(b) where there is no person so authorised, or in the case of physical incapacity—

(i) if the person incapable is entitled as executor and has no interest in the residuary estate of the deceased, to the person entitled to such estate;

(ii) if the person incapable is entitled otherwise than as executor or is an executor having an interest in the residuary estate of the deceased, to the person who would be entitled to a grant in respect of his estate if he had died intestate;

or to such other person as the Master may by order direct.

(2) Unless the Master otherwise directs, no grant of administration shall be made under this rule unless all persons entitled in the same class as the person incapable have been cleared off.

(3) In the case of mental incapacity, notice of intended application for a grant under this rule shall be given to the Office of Care and Protection except where the person incapable is an executor with no beneficial interest in the estate.

(4) In the case of physical incapacity, notice of intended application for a grant under this rule shall, unless the Master otherwise directs, be given to the person alleged to be so incapable.

[E.r. 33]

Grants to trust corporations

30.—(1) Where a trust corporation applies for a grant through one of its officers, such officer shall lodge a certified copy of the resolution authorising him to make the application and shall depose in the oath that the corporation is a trust corporation within the meaning of Article 9 of the Order, and that it bas power to accept a grant.

(2) Subject to the provisions of the succeeding paragraphs, where a trust corporation applies for a grant of administration with or without will annexed (otherwise than as attorney for some person) there shall be lodged with the application for a grant the consents of all persons entitled to a grant and of all persons interested in the residuary or undisposed of estate of the deceased, unless the Master directs that such consents, or any of them, be dispensed with on such terms (if any) as he may think fit.

(3) Where an executor who has renounced his right to probate of a will is entitled to share in the residuary or undisposed of estate of the deceased his consent to a trust corporation obtaining a grant must be expressly given (as such consent may not be inferred from his renunciation) unless the Master directs that such consent be dispensed with on such terms (if any) as he may think fit.

(4) To enable a grant of administration to be made to a trust corporation, all the executors named in the will must be cleared off by death, renunciation or citation: Provided, however, that if the only persons entitled to probate of the will as executors are under the age of eighteen years, a grant of administration with will annexed may be made to a trust corporation on the consent of the persons entitled to the residuary or undisposed of estate of the deceased, unless the Master directs that such consents be dispensed with on such terms, if any, as he may think fit. Such a grant shall be limited until the executor or one of the executors attains the age of eighteen years. Where any such minor executor is entitled to share in the residuary or undisposed of estate, consent on his behalf may be given by his statutory, testamentary or other lawfully appointed guardian.

(5) Where all the persons entitled to a grant of administration with or without will annexed and all those interested in the residuary or undisposed of estate of a deceased are under the age of eighteen years, a grant of administration with or without will annexed may issue as of right to a trust corporation on consent of the statutory, testamentary or other already lawfully appointed guardians, but an order shall not be made by the Master assigning a guardian for the purpose of consenting to an application of a trust corporation for a grant, nor shall an election of a guardian by a minor be accepted for that purpose. If there are no guardians so qualified the issue of a grant to a trust corporation snail lie in the discretion of the Master.

Where, however, some of the persons entitled to a grant of administration with or without will annexed, or who are interested in the residuary or undisposed-of estate of a deceased are of full age (others being minors) the consents and renunciations of those of full age will be required unless the Master directs that any such consents or renunciations be dispensed with.

A grant to a trust corporation given under this paragraph shall be limited until one of the minors entitled to apply for a grant attains the age of eighteen years and applies for and obtains a grant.

[E.r. 34]

Grants to corporations other than trust corporations

31.  Where a corporation (not being a trust corporation) would, if an individual, be entitled to a grant, administration for its use and benefit, limited until further representation is granted, may be granted to its nominee or, if the corporation has its principal place of business outside Northern Ireland, its nominee or lawfully constituted attorney, and a copy of the resolution appointing the nominee or, as the case may be, the power of attorney, sealed by the corporation or otherwise authenticated to the Master's satisfaction, shall be lodged with the application for the grant, and the oath shall state that the corporation is not a trust corporation.

[E.r. 34]

Grants to nominess of certain legatees, devisees and creditors

32.  Where any legatee or devisee under the will of a deceased; or any creditor of a deceased—not being a corporation is an association, society, institution, community, order or other body of persons (whether private or public), the Master may, if all persons entitled in priority to a grant have been cleared off, give a grant to the nominee of such legatee, devisee, or credior, for the use and benefit of such legatee, devisee, or creditor. The nomination of the applicant for the grant shall be made in such manner as the Master shall require.

Nil estate grants

33.  Where a grant is given in respect of a deceased person by virtue of the provisions of Article 4(4) of the Order, it shall

(a) in the case of an original grant be given to such person as would have been entitled thereto had the deceased died leaving assets nominal in amount in Northern Ireland, and

(b) in the case of a de bonis non or other form of, grant in respect of unadministered estate, to such person as would have been entitled thereto if there has been assets of the deceased nominal in amount unadministered in Northern Ireland at the time of making such grant.

Number of administrators

34.  No grant of administration shall be made jointly to more than four persons unless the Master otherwise orders.

Administration de bonis non

35.  Where on the death of a personal representative of a deceased without having fully administered the estate, it is necessary to grant administration of the unadministered estate of the deceased, the provisions of this Order that shall apply to the ascertainment of the new grantee shall be those that apply on an application for an original grant.

Renunciation of probate and administration

36.—(1) Renunciation of probate by an executor shall not operate as renunciation of any right which he may have to a grant of administration in some other capacity unless he expressly renounces such right.

(2) Unless the Master otherwise directs, no person who has renounced administration in one capacity may obtain a grant thereof in some other capacity.

(3) A renunciation of probate or administration may be retracted at any time on the order of the Master;

Provided that only in exceptional circumstances may leave be given to an executor to retract a renunciation of probate after a grant has been made to some other person entitled in a lower class.

[E.r. 35]

Notice to Crown of intended application for grant

37.  In any case in which it appears that the Crown is or may be beneficially interested in the estate of a deceased person, notice of intended application for a grant shall be given by the applicant to the Crown Solicitor, and the Master may direct that no grant shall issue within a specified time after the notice has been given.

[E.r. 37]

Guarantee

38.—(1) The Master shall not require a guarantee under Article 17 of the Order as a condition of granting administration except where it is proposed to grant it—

(a) by virtue of rule 18(v) or rule 20(6) to a creditor or the personal representative of a creditor or to a person who has no immediate beneficial interest in the estate of the deceased but may have such an interest in the event of an accretion to the estate;

(b) under rule 24 to a person or some of the persons who would, if the person beneficially entitled to the whole of the estate died intestate, be entitled to his estate;

(c) under rule 26 to the attorney of a person entitled to a grant;

(d) under rule 27 for the use and benefit of a minor;

(e) under rule 29 for the use and benefit of a person who is by reason of mental or physical incapacity incapable of managing his affairs;

(f) to an applicant who appears to the Master to be resident elsewhere than in the United Kingdom;

or except where the Master considers that there are special circumstances making it desirable to require a guarantee.

(2) Notwithstanding that it is proposed to grant administration as aforesaid, a guarantee shall not be required, except in special circumstances, on an application for administration where the applicant or one of the applicants is—

(a) a trust corporation;

(b) a solicitor holding a current practising certificate under the Solicitors (Northern Ireland) Order 1976(50);

(c) a servant of the Crown acting in his official capacity.

(3) Where the master considers there are special circumstances under paragraphs (1) or (2) he shall give the applicant or his solicitor (where the application for a grant is made through a solicitor) an opportunity of being heard with respect to the requirement.

(4) Every guarantee entered into by a surety for the purposes of Article 17 of the Order shall be in Form No. 1.

(5) Except where the surety is a corporation the signature of the surety on every such guarantee shall be attested by an authorised officer, commissioner for oaths or other person authorised by law to administer an oath.

(6) Unless the Master otherwise directs—

(a) if it is decided to require a guarantee, it shall be given by two sureties, except where the gross value of the estate does not exceed £500 or a corporation is a proposed surety, and in those cases one will suffice;

(b) no person shall be accepted as a surety unless he is resident in the United Kingdom;

(c) No officer of the Office or a branch office shall become a surety, nor in any case in which a person is solicitor for the applicant for a grant shall he or his clerk or apprentice become a surety without the leave of the Master;

(d) the limit of the liability of the surety or sureties under a guarantee given for the purposes of Article 17 of the Order shall be the gross amount of the estate as sworn on the application for the grant;

(e) every surety, other than a corporation, shall justify;

(f) no corporation shall be accepted as a surety unless it has been approved by the Court.

[E.r. 38]

Resealing under Colonial Probate Acts, 1892 and 1927

39.—(1) An application under the Colonial Probates Acts, 1892 and 1927, for the resealing of probate or administration granted by the court of a country to which those Acts apply shall be made in the Office by the person to whom the grant was made or by any person authorised in writing to apply on his behalf.

(2) On any such application—

(a) an Inland Revenue affidavit or account shall be lodged as if the application were one for a grant in Northern Ireland;

(b) if the Master so requires, the application shall be advertised in such manner as he may direct and shall be supported by an oath sworn by the person making the application.

(3) On an application for the resealing of a grant of administration—

(a) the Master shall not require sureties under section 4 of the Administration of Estates Act (Northern Ireland) 1971(51) as a condition of resealing the grant except where it appears to him that the grant is made to a person or for a purpose mentioned in paragraphs (a) to (f) of rule 38(1) or except where he considers that there are special circumstances making it desirable to require sureties;

(b) rule 38(2), (3), (5) and (6) shall apply with any necessary modifications; and

(c) a guarantee entered into by a surety for the purposes of the said section 4 shall be in Form No. 2.

(4) Except by leave of the Master, no grant shall be resealed unless it was made to such a person as is mentioned in paragraph (a) or (b) of rule 25 or to a person to whom a grant could be made under the proviso to that rule.

(5) No limited or temporary grant shall be resealed except by leave of the Master.

(6) Every grant lodged for resealing shall include a copy of any will to which the grant relates or shall be accompanied by a copy thereof certified as correct by or under the authority of the court by which the grant was made, and where the copy of the grant required to be deposited under subsection (1) of section 2 of the Colonial Probates Act, 1892(52), does not include a copy of the will, a copy thereof shall be deposited in the Office at the same time as the copy of the grant.

(7) The Master shall send notice of the resealing to the Court which made the grant.

(8) Where notice is received in the Office of the resealing of a Northern Ireland grant, notice of any amendment or revocation of the grant shall be sent to the court by which it was resealed.

[E.r. 41]

Application for leave to sue on guarantee

40.  An application for leave under Article 17(3) of the Order or under section 4(5) of the Administration of Estates Act (Northern Ireland) 1971 to sue a surety on a guarantee given for the purpose of Article 17 or section 4 shall, unless the Master otherwise directs under rule 55, be made by summons to the Master, and notice of the application shall in any event be served on the administrator, the surety and any co-surety.

[E.r. 41A]

Amendment and revocation of grant

41.  If the Master is satisfied that a grant should be amended or revoked he may make an order accordingly :

Provided that except in special circumstances no grant shall be amended or revoked under this rule except on the application or with the consent of the person to whom the grant was made.

[E.r. 42]

Certificate of delivery of Inland Revenue affidavit

42.  Where the deceased died before March 13, 1975, the certificate of delivery of an Inland Revenue affidavit required by section 30 of the Customs and Inland Revenue Act 1881(53), to be borne by every grant shall be in Form No. 3.

[E.r. 43]

Caveats

43.—(1) Any person who wishes to ensure that no grant is sealed without notice to himself may enter a caveat either personally or by his solicitor in the Office or where the lodging of caveats is branch office business at the appropriate branch office.

(2) A caveat shall be in Form No. 4 and where the caveat is entered by a solicitor on the caveator's behalf, the name of the caveator shall be stated.

(3) Except as otherwise provided by this rule, a caveat shall remain in force for six months, beginning with the date on which it is entered and shall then cease to have effect, without prejudice to the entry of a further caveat or caveats.

(4) Where a caveator within the last month of a period of six months prescribed by paragraph (3) of this rule or of any additional period of six months prescribed by this paragraph, lodges at the Office or branch office in which the caveat was entered a written application for its extension, the caveat shall (except as otherwise provided by paragraphs (9) (12) and (14) of this rule) remain in force for an additional period of six months;

(5) (a) The Master shall, immediately upon a caveat being lodged in the Office, send notice thereof to the appropriate circuit registrar if it is alleged that the deceased resided at the time of his death, or if he is known to have had a fixed place of abode at the time of his death, within the jurisdiction of the branch office;

(b) The circuit registrar shall, immediately upon a caveat being lodged in a branch office, send a copy thereof to the Master and shall state the day on which the same was lodged.

(6) The Master shall maintain an index of caveats entered in the Office or any branch office and on receiving an application for a grant in the Office, or a notice of an application for a grant made in a branch office he shall cause the index to be searched and shall notify the appropriate circuit registrar in the event of a caveat having been entered against the sealing of a grant for which application has been made in a branch office.

(7) The Master or circuit registrar shall not allow any grant to be sealed if he has knowledge of an effective caveat in respect thereof :

Provided that no caveat shall affect any grant sealed on the day on which the caveat has been lodged.

(8) A caveat may be warned by the issue from the Office of a warning in Form No. 5 at the instance of any person interested (in this rule called “the person warning”) which shall state his interest and, if he claims under a will, the date of the will, and shall require the caveator to give particulars of any contrary interest which he may have in the estate of the deceased; and every warning or a copy thereof shall be served on the caveator.

(9) A caveator who has not entered an appearance to a warning may at any time withdraw his caveat by giving notice at the Office or branch office at which it was entered and the caveat shall thereupon cease to have effect and, if it has been warned, the caveator shall forthwith give notice of withdrawal of the caveat to the person warning.

(10) A caveator having an interest contrary; to that of the person warning may, within eight days of service of the warning upon him inclusive of the day of such service, or at any time, thereafter if a certificate of non appearance has not been issued under paragraph 12 of this rule, enter an appearance in Form No. 6 in the Office and make an entry in the appropriate book, and shall forthwith thereafter serve on the person warning a copy of the form of appearance.

(11) A caveator having no interest contrary to that of the person warning but wishing to show cause against the sealing of a grant to that person may, within eight days of service of the warning upon him inclusive of the day of such service, or at any time thereafter if a certificate of non-appearance has not been issued under paragraph (12) of this rule, issue and serve a summons for directions, which shall be returnable before the Master.

(12) If the time limited for appearance has expired and the caveator has not entered an appearance, the person warning may file in the Office an affidavit showing that the warning was duly served and obtain a certificate of non appearance and thereupon the caveat shall cease to have effect.

(13) Upon the commencement of a probate action the Master shall, in respect of each caveat then in force (other than a caveat entered by the plaintiff), give to the caveator notice of the commencement of the action and, upon the subsequent entry of a caveat at any time when the action is pending, shall likewise notify the caveator of the existence of the action.

(14) Unless the Master by order made on summons otherwise directs—

(a) any caveat in force at the commencement of proceedings by way of citation or motion shall, unless withdrawn pursuant to paragraph (9) of this rule, remain in force until an application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such proceedings, and upon such application any caveat entered by a party who had notice of the proceedings shall cease to have effect;

(b) any caveat in respect of which an appearance to a warning has been entered shall remain in force until the commencement of a probate action;

(c) the commencement of a probate action shall, whether or not any caveat has been entered, operate to prevent the sealing of a grant (other than a grant under Article 6 of the Order) until application for a grant is made by the person shown to be entitled thereto by the decision of the Court in such action, and upon such application any caveat entered by a party who had notice of the action, or by a caveator who was given notice under paragraph (13) of this rule, shall cease to have effect.

(15) Except with the leave of the Master, no further caveat may be entered by or on behalf of any caveator whose caveat has ceased to have effect under paragraph (12) or (14) of this rule.

(16) In this rule “grant” includes a grant made by any Court outside Northern Ireland which is produced for resealing by the High Court.

[E.r. 44]

Citation

44.—(1) Every citation shall issue from the Office and shall be settled by the Master before being issued.

(2) Every averment in a citation, and such other information as the Master may require, shall be verified by an affidavit sworn by the person issuing the citation (hereinafter called “the citor”) or, if there are two or more citors, by one of them :

Provided that the Master may in special circumstances accept an affidavit sworn by the citor's solicitor.

(3) The citor shall enter a caveat before issuing a citation.

(4) Every citation shall be served personally on the person cited unless the Master, on cause shown by affidavit, directs some other mode of service, which may include notice by advertisement.

(5) Every will referred to in a citation shall be lodged in the Office or a branch office before the citation is issued, except where the will is not in the citor's possession and the Master is satisfied that it is impracticable to require it to be lodged.

(6) A person who has been cited to appear may, within eight days of service of the citation upon him inclusive of the day of such service, or at any time thereafter if no application has been made by the citor under paragraph (5) of rule 45 or paragraph (2)(a) of rule 46, enter an appearance in the Office in form 5 and make an entry in the appropriate book, and shall forthwith thereafter serve on the citor a copy of the form of appearance.

[E.r. 45]

Citation to accept or refuse to take a grant

45.—(1) A citation to accept or refuse a grant may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.

(2) Where power to make a grant to an executor has been reserved, a citation calling on him to accept or refuse a grant may be issued at the instance of the executors who have proved the will or of the executors of the last survivor of deceased executors who have proved.

(3) A citation calling on an executor who has intermeddled in the estate of the deceased to show cause why he should not be ordered to take a grant may be issued at the instance of any person interested in the estate at any time after the expiration of six months from the death of the deceased :

Provided that no citation to take a grant shall issue while proceedings as to the validity of the will are pending.

(4) A person cited who is willing to accept or take a grant may apply ex parte to the master for an order for a grant on filing an affidavit showing that he has entered an appearance and that he has not been served by the citor with notice of any application for a grant to himself.

(5) If the time limited for appearance has expired and the person cited has not entered an appearance, the citor may—

(a) in the case of a citation under paragraph (1) of this rule apply to the Master for an order for a grant to himself.

(b) in the case of a citation under paragraph (2) of this rule, apply to the Master for an order that a note be made on the grant that the executor in respect of whom power was reserved has been duly cited and has not appeared and that all his rights in respect of the executorship have wholly ceased;

(c) in the case of a citation under paragraph (3) of this rule, apply to the Master by summons (which shall be served on the person cited) for an order requiring such person to take a grant within a specified time or for a grant to himself or some other person specified in the summons.

(6) An application under the last foregoing paragraph shall be supported by an affidavit showing that the citation was duly served and that the person cited has not entered an appearance.

(7) If the person cited has entered an appearance, but has not applied for a grant under paragraph (4) of this rule, or has failed to prosecute his application with reasonable diligence, the citor may—

(a) in the case of a citation under paragraph (1) of this rule, apply by summons to the Master for an order for a grant to himself;

(b) in the case of a citation under paragraph (2) of this rule, apply by summons to the Master for an order striking out the appearance and for the endorsement on the grant of such a note as is mentioned in sub-paragraph (b) of paragraph (5) of this rule;

(c) in the case of a citation under paragraph (3) of this rule, apply by summons to the Master for an order requiring the person cited to take a grant within a specified time or for a grant to himself or some other person specified in the summons :

and the summons shall be served on the person cited.

[E.r. 46]

Citation to propound a will

46.—(1) A citation to propound a will shall be directed to the executors named in the will and to all persons interested thereunder, and may be issued at the instance of any citor having an interest contrary to that of the executors or such other persons.

(2) If the time limited for appearance has expired, the citor may—

(a) in the case where no person cited has entered art appearance, apply to the Master for an order for a grant as if the will were invalid;

(b) in the case where no person who has entered an appearance proceeds with reasonable diligence to propound the will, apply to the Master by summons (which shall be served on every person cited who has entered an appearance) for such an order as is mentioned in paragraph (a) above.

[E.r. 47]

Citation to bring in a grant

47.  A citation against the person to whom probate or letters of administration, as the case may be, was or were granted requiring him to bring into and leave at the Office the probate or letters of administration, as the case may be, may be issued on the application of any person applying for the revocation or amendment of the grant or who desires to compel proof of the will in solemn form. Service out of jurisdiction of a citation under this rule is permissible but only with the leave of the Court.

Address for service

48.  All caveats, citations, warnings and appearances shall contain an address for service within the jurisdiction.

[E.r. 48]

Application for order to bring in a will or to attend for examination

49.—(1) An application under Article 15 of the Order—

(a) for the issue by the Master of a subpoena to bring a will or other testamentary paper into the Office shall be supported by an affidavit setting out the grounds of the application, or

(b) for an order requiring any person to bring a will or other testamentary paper into the Office shall be made by summons which must be served on the person against whom the order is sought.

(2) An application under Article 16 of the Order for an, order requiring any person to attend before the Court for examination shall be made by summons which must be served on the person against whom the order is sought.

(3) Any person against whom a subpoena is issued under the said Article 15, and who denies that the will or other testamentary paper referred to in the subpoena is in his possession or under his control may file an affidavit to that effect.

[E.r. 49]

Limited grants under section 1(2) of the Administration of Estates Act (Northern Ireland) 1955

50.  An application for an order for a grant under section 1(2) of the Administration of Estates Act (Northern Ireland) 1955(54) limited to part o( an estate may be made to the Master and shall be supported by an affidavit stating—

(a) whether the application is made in respect of the real estate only or personal estate only, or real estate together with personal estate, or in respect of a trust estate only;

(b) whether the estate of the deceased is known to be insolvent;

(c) that the persons entitled to a grant in respect of the whole estate in priority to the applicant have been cleared off.

[E.r. 50]

Grants of administration under discretionary powers of court, and grant ad colligenda bona

51.  An application for an order for—

(a) a grant of administration under Article 5 of the Order, or

(b) a grant of administration ad colligenda bona,

may be made to the Master and shall be supported by an affidavit setting out the grounds of the application.

[E.r. 51]

Applications for leave to swear to death

52.  An application for leave to swear to the death of a person in whose estate a grant is sought may be made to the Master and shall be supported by an affidavit setting out the grounds of the application and containing particulars of any policies of insurance effected on the life of the presumed deceased.

[E.r. 52]

Grants in respect of nuncupative wills and of copies of wills

53.—(1) An application for an order admitting to proof a nuncupative will, or a will contained in a copy, a completed draft, a reconstruction or other evidence of its contents where the original will is not available, may be made to the Master :

Provided that where a will is not available owing to its being retained in the custody of a foreign court or official, a duly authenticated copy of the will may be admitted to proof without any such order as aforesaid.

(2) The application shall be supported by an affidavit setting out the grounds of the application and by such evidence on affidavit as the applicant can adduce as to—

(a) the due execution of the will;

(b) its existence after the death of the testator, and

(c) the accuracy of the copy or other evidence of the contents of the will,

together with any consents in writing to the application given by any persons not under disability who would be prejudiced by the grant

[E.r. 53]

Grants durante absentia

54.  An application for an order for a grant of special administration under Article 8 of the Order where a personal representative is residing outside Northern Ireland shall be made to the Court on motion.

[E.r. 54]

Power to require application to be made by summons or motion

55.  The Master may require any application to be made by summons to the Master or the Judge, or to the Court on motion.

[E.r. 60]

Notice of motion

56.  The notice of a motion must issue out of the Office.

Application by summons

57.—(1) A summons must issue out of the Office.

(2) A summons must be served not less than two clear days before the day appointed for the hearing, unless the Judge or Master, at or before the hearing, dispenses with service on such terms; if any, as he may think fit.

[E.r. 60]

Issue of copies of original wills and other documents

58.—(1) Office copies of wills and other documents kept in the Office and branch offices under Article 23 of the Order will not be examined against the documents of which they purport to be copies unless so required. Every copy so required to be examined, shall be certified under the hand of the Master to be a true copy.

(2) The seal of the Court shall not be affixed to an office copy of a will or other document unless the same has been certified to be a true copy.

[E.r. 58]

Attendances with documents

59.  If a will or other document filed in the Office or any branch office is required to be produced by a clerk of the Office or branch office at any place application must be made for that purpose (unless the Judge or Master gives leave to the contrary) at least twenty-four hours before the clerk, in whose charge the will or other document is to be placed, will be required to set off; provided that any such will or document required for production before the Court of Appeal or any Judge of the Supreme Court sitting in Belfast shall be transmitted to the proper officer of such Court or Judge who will give a receipt therefor and return the same to the Office as soon as may be after such production. If a will or other document so filed is required to be posted to a circuit registrar application must be made for that purpose in sufficient time to allow for making and examining a copy of such will or other document to be deposited in its place.

Notices of applications for grants made to a branch office

60.—(1) A circuit registrar shall send to the Office a notice of every application made in the branch office for a grant as soon as may be after the application has been made, and no grant shall be made by him until he has received from the Office a certificate that no other application appears to have been made in respect of the estate of the testator or intestate.

(2) Notices of applications for grants of probate or administration, with the will annexed, transmitted by the circuit registrar to the Office, shall contain an extract of the words of the will or codicil by which the applicant has been appointed executor, or of the words (if any) upon which he founds his claim to such administration; and shall show the day on which the application was made.

(3) Notices of application shall set forth the names and interests of all persons who would have a prior right to the applicant, and show how such prior right is cleared off. In case the persons, or any of them, have renounced, the date of his or her renunciation must be stated. If the applicant claims as the representative of another person, the date and particulars of the grant to him must appear.

(4) Where any such notice is received from any branch office the Master shall examine all notices of applications for grants received from thy other branch offices and all applications for grants made at the Office, so far as may be necessary for the purpose of ascertaining whether application for a grant in respect of the estate of the same deceased person has been made, and shall communicate with the circuit registrar as occasion may require in relation thereto.

(5) The certificate sent under paragraph (1) shall be forwarded as soon as may be to the circuit registrar, and may be issued from the Office under a stamp provided for that purpose.

(6) All notices transmitted to the Office under paragraph (1) shall be filed in the Office.

[E.r. 57]

List of grants made in a branch office

61.—(1) A circuit registrar shall on the first and every other Thursday in the month transmit to the Office a list of the grants made by him and not included in a previous return, and also copies of the wills to which the grants relate certified by him to be correct under a stamp provided for the purpose.

(2) Every such list of grants furnished by the circuit registrar shall include the full name of every person in respect of whose estate a grant has been made. and the name of the county or town in which he resided.

[E.r. 57]

Amendment of grants in branch office

62.—(1) No grants of probate or letters of administration shall be amended by the circuit registrar, without an order of the Judge or Master having been previously obtained. In case the name of the testator or intestate requires amendment notice of an application to amend must be given, and the amendment ordered is not to be made by the circuit registrar until the usual certificate on such notice has been received from the Office.

(2) Whenever in the branch office any amendment is made in a grant, or a renunciation is filed, notice of such amendment or renunciation shall, without delay, be forwarded by the circuit registrar to the Master.

(3) Where any alteration is made in a grant which was issued from a branch office, or where any such grant is revoked, and the volume of the printed calandar containing the entry of such grant has been forwarded to the circuit registrar, notice of such alteration or revocation shall without delay be forwarded by the Master to the circuit registrar.

Order of priority for grant where the deceased died before the 1st day of January 1956

63.  Where the deceased died before the 1st January 1956, the right to a grant shall, subject to any statutory provision, be determined by the principles and rules in accordance with which the Court would have acted at the date of the death.

[E.r. 67]

ORDER 98 THE LEGITIMACY DECLARATION ACT (IRELAND) 1868 AND THE LEGITIMACY ACT (NORTHERN IRELAND) 1928

Interpretation

1.  In this Order unless the context otherwise requires—

“the Judge” means the Judge for the time being to whom the business of the Family Division is assigned under section 17 of the Act and any judge of the High Court exercising jurisdiction in matrimonial causes and matters;

“Master” means the Master of the Office;

“Office” means the Probate and Matrimonial Office of the Family Division;

Heading of petition

2.  A petition by which proceedings are begun under the said Acts or either of them shall be headed :—

• “In the High Court of Justice in Northern Ireland

  • Family Division

    • Probate and Matrimonial Office”

and in the matter of the relevant Act and shall be addressed to Her Majesty's High Court of Justice in Northern Ireland.

Contents of petition

3.  The petition shall, in addition to stating the grounds on which the petitioner relies; set out the date and place of birth of the petitioner and the maiden name of his mother and, if the petitioner is known by a name other than that which appears in the certificate of his birth, that fact shall be stated in the petition and in any decree made thereon.

Affidavit in support of petition

4.—(1) The petition shall be supported by an affidavit by the petitioner verifying the petition and giving particulars of every person whose interest may be affected by the proceedings and his relationship to the petitioner;

Provided that if the petitioner is under the age of 17 the affidavit shall unless otherwise directed, be made by his next friend.

(2) An affidavit for the purpose of paragraph (1) may contain statements of information and belief with the sources and grounds thereof.

Notice of filing of petition to be given to the Attorney General

5.  On filing the petition notice of filing shall be given by the petitioner to the Crown Solicitor on behalf of the Attorney General who may enter an appearance to the petition within 14 days from such notice.

Directions as to persons to be made respondents to the petition

6.—(1) After the expiration of the time limited for appearance by the Attorney General, the petitioner shall issue and serve upon the Crown Solicitor an application for directions as to the persons, other than the Attorney General, who are to be made respondents to the petition.

(2) Such application shall be supported by an affidavit setting out particulars of all persons whose interests may be affected by the legitimation of the petitioner, and their relationship to the petitioner.

Service of petition on respondent

7.  The petitioner shall serve personally or by post every respondent other than the Attorney General with a copy of the petition indorsed with a notice to appear in accordance with Form No. 48 in Appendix. A.

Appearance by respondent

8.  A respondent may enter an appearance within the time limited by the notice indorsed on the petition.

Answer by respondent

9.—(1) A respondent who has entered an appearance may within 14 days thereafter file an answer to the petition.

(2) The respondent shall within four days of filing an answer deliver a copy of it to the petitioner and the Crown Solicitor and any other party to the proceedings.

Answer by Attorney General

10.  The Attorney General shall within 21 days after the order for directions has been made under rule 6 file his answer to the petition and deliver a copy thereof to the petitioner and any other party to the proceedings.

Consolidation of suits

11.  Where it appears that more than one petition has been filed on behalf of petitioners claiming to be children of the same father and mother, the Attorney General may, on giving notice to the petitioner in each suit which it is sought to consolidate, apply at any time after he has entered an appearance for an order that the suits be consolidated.

Master's certificate before hearing

12.  The petitioner shall before setting down the cause for hearing, refer the proceedings in the cause to the Master for his certificate that the pleadings and proceedings are in order.

Setting down for hearing

13.—(1) The petitioner, after the Master's certificate has been obtained, shall set the cause down for hearing and within 4 days of having done so, shall give to the Crown Solicitor on behalf of the Attorney General and to each party in the cause who has entered an appearance notice of his having done so.

(2) Save with the consent of all parties or by leave of the Judge no cause shall be placed in the list for hearing until after the expiration of 10 days from the date on which the notice of setting down is given.

(3) In order to set a cause down for hearing the party setting it down must deliver to the cause clerk in the Office one bundle for the use of the Judge consisting of one indexed copy of the following documents:—

(a) the petition,

(b) the pleadings,

(c) affidavit of service,

(d) interlocutory orders,

(e) the Master's certificate under rule 32, and

(f) the requisite legal aid documents,

bound up in proper chronological order and stamped denoting the fee payable and have endorsed thereon the names and addresses of the solicitors for the parties.

Mode of making applications

14.  Unless this order otherwise provides every application under this order shall be made to the Master by summons.

ORDER 99 INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) (NORTHERN IRELAND) ORDER 1979

Interpretation

1.  In this Order “ the Order” means the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979(55) and an Article referred to by number means the Article so numbered in that Order.

[E.r. 1]

Assignment to Chancery Division

2.  Proceedings in the High Court under the Order shall be assigned to the Chancery Division.

[E.r. 2]

Application for financial provision

3.—(1) Any originating summons by which an application under Article 3 is made shall be issued out of the Chancery Office.

(2) No appearance need be entered to the summons.

(3) An affidavit shall be filed by the applicant in support of the summons, exhibiting an official copy of the grant of representation to the deceased's estate and of every testamentary document admitted to proof, and a copy of the affidavit shall be served on every defendant with the summons.

[E.r. 3]

Powers of Court as to parties

4.—(1) Without prejudice to its powers under Order 15, the Court may at any stage of proceedings under the Order direct that any person be added as a party to the proceedings or that notice of the proceedings be served on any person.

(2) Order 15, rule 13', shall apply to proceedings under the Order as it applies to the proceedings mentioned in paragraph (1) of that rule.

[E.r. 4]

Affidavit in answer

5.—(1) A defendant to an application under Article 3 who is a personal representative of the deceased shall and any other defendant may, within 21 days after service of the summons on him, inclusive of the day of service, file in the Chancery Office an affidavit in answer to the application.

(2) The affidavit filed by a personal representative pursuant to paragraph (1) shall state to the best of the deponent's ability—

(a) full particulars of the value of the deceased's net estate, as defined by Article 2;

(b) the person or classes of persons beneficially interested in the estate, giving the names and (in the case of those who are not already parties) the addresses of all living beneficiaries, and the value of their interests so far as ascertained;

(c) if such be the case, that any living beneficiary (naming him) is a minor or a patient within the meaning of Order 80, rule 1, and

(d) any facts known to the deponent which might affect the exercise of the Court's powers under the Order.

(3) Every defendant who files an affidavit shall at the same time serve a copy on the plaintiff and on every other defendant who is not represented by the same solicitor.

[E.r. 5]

Separate representation

6.  Where an application under Article 3 is made jointly by two or more applicants and the originating summons is accordingly issued by one solicitor on behalf of all of them, they may, if they have conflicting interests, appear on any hearing of the summons by separate solicitors or counsel or in person; and where at any stage of the proceedings it appears to the Court that one of the applicants is not but ought to be separately represented, the Court may adjourn the proceedings until he is.

[E.r. 6]

Endorsement of memorandum on grant

7.  On the hearing of an application under Article 3 the personal representative shall produce to the Court the grant of representation to the deceased's estate and, if an order is made under the Order, the grant shall remain in the custody of the Court until a memorandum of the order has been endorsed on or permanently annexed to the grant in accordance with Article 21.

[E.r. 7]

Disposal of proceedings in chambers

8.  Any proceedings under the Order may, if the Court so directs, be disposed of in chambers.

[E.r. 8]

Subsequent applications in proceedings under Article 3

9.  Where an order has been made on an application under Article 3, any subsequent application under the Order, whether made by a party to the proceedings or by any other person, shall be made by summons in those proceedings.

[E.r. 9]

Remittal to county court

10.—(1) Where an application to which Article 24(1) relates is within the jurisdiction of a county court, the Court may, if the parties consent or it appears to the Court to be desirable, order the remittal of the application to such county court as appears to the Court to be most convenient to the parties.

(2) An order under paragraph (1) may be made by the Court of its own motion or on the application of any party, but before making an order of its own motion otherwise than by consent the Court shall give the parties an opportunity of being heard on the question of remittal and for that purpose the Master may give the parties notice of a date, time and place at which the question will be considered.

[E.r. 11]

ORDER 100 THE TRADE MARKS ACT 1938

Assignment to Chancery Division

1.  Proceedings in the High Court under the Trade Marks Act 1938(56) shall be assigned to the Chancery Division.

[E.r. 1]

Appeals and applications under the Trade Marks Act 1938

2.—(1) Subject to rule 3, every application to the High Court under the said Act of 1938 must be begun by originating motion.

(2) Notice of motion by which any such application is made must be served on the Comptroller-General of Patents, Designs and Trade Marks (in this Order referred to as “the Comptroller”).

(3) Where the Comptroller refers to the High Court an application under the said Act of 1938 made to him, and where the Department of Trade refer to that Court an appeal to the Department under that Act, then, unless within one month after receiving notification of the decision to refer, the applicant or the appellant, as the case may be, makes to that Court the application or appeal referred, he shall be deemed to have abandoned it.

(4) The period prescribed by Order 55, rule 14(2), or by paragraph (3) in relation to an application or appeal to which that paragraph applies may be extended by the Comptroller on the application of any party interested and may be so extended although the application is not made until after the expiration of that period, but the foregoing provision shall not be taken to affect the power of the Court under Order 3, rule 5, to extend that period.

(5) Where under subsection (6) of section 17, or subsection (9) of section 18, of the said Act of 1938 an appellant becomes entitled and intends to withdraw his application which is the subject matter of the appeal, he must give notice of his intention to the Comptroller and to any other party to the appeal within one month after the Court has given leave under the said subsection (6) or the said subsection (9), as the case may be, for further grounds of objection to be taken.

[E.r. 2]

Proceedings for infringement of registered trade mark; validity of registration disputed

3.—(1) Where in any proceedings a claim is made for relief for infringement of the right to the use of a registered trade mark, the party against whom the claim is made may in his defence put in issue the validity of the registration of that trade mark or may counterclaim for an order that the register of trade marks be rectified by cancelling or varying the relevant entry or may do both those things.

(2) A party to any such proceedings who ill his pleading (whether a defence or counterclaim) disputes the validity of the registration of a registered trade mark must serve with the pleading particulars of the objections to the validity of the registration on which he relies ill support of the allegation of invalidity.

(3) A party to any such proceedings who counterclaims for an order that the register of trade marks be rectified must serve on the Comptroller a copy of the counterclaim together with a copy of the particulars mentioned in paragraph (2); and the Comptroller shall be entitled to take such part in the proceedings as he may think fit but need not serve a defence or other pleading unless ordered to do so by the Court.

[E.r. 3]

ORDER 101 THE PENSIONS APPEAL TRIBUNALS ACT 1943

lnterpretation

1.  In this Order—

“the Court” means the Court of Appeal.

Application for leave to appeal

2.—(1) An application to the Court for leave to appeal against the decision of a Pensions Appeal Tribunal may not be made unless an application for such leave was made to the Tribunal and was refused and must be made within 28 days after the date of the Tribunal's refusal.

(2) The application to the Court, which may be made ex parte, must be made by filing in the Central Office a written statement of—

(a) the name and description of the applicant,

(b) the point of law as respects which the applicant alleges that the Tribunal's decision was erroneous, and

(c) the date of the Tribunal's decision refusing leave to appeal.

(3) If the application is made with the consent of the other party to the proceedings before the Tribunal, that fact shall be included in the statement.

(4) On the making of the application the proper officer shall request the chairman of the Tribunal to give the Court a written statement of the reasons for the Tribunal's decision to refuse leave to appeal, and within 7 days after receiving the request the chairman shall give the Court such a statement.

(5) The Court may determine the application without a hearing or may direct that the application be set down for hearing.

(6) Where the application is determined without a hearing, a copy of the Court's order shall be sent from the Central Office to the applicant and to the other party to the proceedings before the Tribunal; and where the application is to be set down for hearing, notice of the day and time fixed for the hearing shall be sent from that Office to the applicant.

[E.r. 3]

Appeal

3.—(1) Without prejudice to Order 59, rule 3(2), the notice of the originating motion by which an appeal against the decision of a Pensions Appeal Tribunal is brought must state the question of law on which the appeal is brought, the date on which leave to appeal was granted and whether such leave was granted by the judge or the Tribunal.

(2) Order 59, rules 5 and 13, shall not apply in relation to such an appeal, but notice must be served and the appeal entered within 28 days after leave to appeal was granted.

(3) Within 28 days after service of the notice of motion on him, the chairman of the Tribunal must state a case setting out the facts on which the decision appealed against was based and must file the case in the Central Office and serve a copy thereof on the appellant and on the respondent.

(4) At the hearing of the appeal the Court may order the case to be returned to the chairman for amendment.

(5) Order 59, rule 10(2), shall not apply in relation to the appeal.

(6) A copy of the Court's order on the appeal must be sent by the proper officer to the appellant, the respondent and the chairman of the Tribunal.

[E.r. 4]

ORDER 102 THE COMPANIES ACTS (NORTHERN IRELAND) 1960 AND 1978

Definitions

1.  In this Order—

“the Act” means the Companies Act (Northern Ireland) 1960(57);

“the Order of 1978” means the Companies (Northern Ireland) Order 1978(58).

“the Court”, without prejudice to Order 1, rule 4(2), includes the Master (Bankruptcy).

[E.r. 1]

Applications to be made by originating summons

2.—(1) Except in the case of the applications mentioned in rules 3 and 4 and applications made in proceedings relating to the winding up of companies, every application under the Act or the Order of 1978 must, in accordance with Order 5, rule 3, be made by originating summons.

(2) No appearance need be entered to an originating summons under this rule unless the application made by the summons is—

(a) an application under section 199 of the Act for an order to make provision for all or any of the matters mentioned in subsection (1) of that section where an order sanctioning the compromise or arrangement to which the application relates has previously been made, or

(b) an application under section 326 of the Act for an order directing a receiver or manager of a company to make good any such default as is mentioned in subsection (1) of that section, or

(c) an application under section 376 of the Act for an order directing a company and any officer thereof to make good any such default as is mentioned in that section, or

(3) An application under section 161(4) or 389 of the Act may be made by ex parte originating summons.

[E.r. 2]

Applications to be made by originating motion

3.  The following applications under the Act must be made by originating motion, namely, applications—

(a) under section 29 for an order that a company be relieved from the consequences of default in complying with conditions constituting the company a private company,

(b) under section 52(4) for an order extending the time for delivery to the registrar of companies of any documents required by that section to be delivered,

(c) under section 159 for an order declaring that the affairs of a company ought to be investigated by an inspector appointed by the Department of Commerce for Northern Ireland,

(d) under section 161(3) for an inquiry into any such case as is therein mentioned, and

(e) under section 315 for an order declaring a dissolution of a company which has not been wound up to have been void.

[E.r. 4]

Applications to be made by petition

4.  The following applications under the Act must be made by petition, namely, applications—

(a) under section 5 to cancel the alteration of a company's objects,

(b) under section 23 to cancel the alteration of a condition contained in a company's memorandum,

(c) under section 56 to confirm a reduction of the share premium account of a company,

(d) under section 57 to sanction the issue by a company of shares at a discount,

(e) under section 58 to confirm a reduction of the capital redemption reserve fund of a company,

(f) under section 67 to confirm a reduction of the share capital of a company,

(g) under section 72 to cancel any variation or abrogation of the rights attached to any class of shares in a company,

(h) under section 197 to sanction a compromise or arrangement between a company and its creditors or any class of them or between a company and its members or any class of them,

(i) under section 316(8) for an order restoring the name of a company to the register where the application is made in conjunction with an application for the winding up of the company,

(j) under section 345 to cancel the alteration of the form of a company's constitution, and

(k) under section 394(2) for relief from liability of an officer of a company or a person employed by a company as auditor.

[E.r. 5]

Assignment, commencement and entitlement of proceedings; filing of affidavits

5.—(1) All proceedings to which this Order relates shall be assigned to the Chancery Division.

(2) Every originating summons, notice of originating motion and petition by which any such proceedings are begun must be issued out of or presented in the Bankruptcy and Companies Office.

(3) Every affidavit made in connection with any such proceedings must be filed in the Bankruptcy and Companies Office.

(4) Every originating summons, notice of originating motion and petition by which any such proceedings are begun and all affidavits, notices and other documents in those proceedings must be entitled in the matter of the company in question and in those proceedings must be entitled in the matter of the company in question and in the matter of the Companies Acts, (Northern Ireland) 1960 and 1978.

(5) The originating summons by which an application for leave under section 179(1) of the Act is made must be entitled in the matter of the company in relation to which the plaintiff was convicted or was guilty of such an offence or of such conduct as is mentioned in the said section 179(1) and in the matter of the Companies Acts (Northern Ireland) 1960 and 1978.

[E.r. 6]

Summons for directions

6.—(1) After presentation of a petition by which any such application as is mentioned in rule 4 is made, the petitioner, except where his application is one of those mentioned in paragraph (2), must take out a summons for directions under this rule.

(2) The applications referred to in, paragraph (1) are—

(a) an application under section 57 of the Act to sanction the issue by a company of shares at a discount,

(b) an application under section 197 of the Act to sanction a compromise or arrangement unless there is included in the petition for such sanction an application for an order under section 199 of the Act, and

(c) an application under section 316(8) of the Act for an order restoring the name of a company to the register.

(3) On the hearing of the summons the Court may by order give such directions as to the proceedings to be taken before the hearing of the petition as it thinks fit including, in particular, directions for the publication of notices and the making of any inquiry.

(4) Where the application made by the petition is to confirm a reduction of the share capital, the share premium account, or the capital redemption reserve fund, of a company, then, without prejudice to the generality of paragraph (3), the Court may give directions —

(a) for an inquiry to be made as to the debts of, and claims against, the company or as to any class or classes of such debts or claims;

(b) as to the proceedings to be taken for settling the list of creditors entitled to object to the reduction and fixing the date by reference to which the list is to be made;

and the power of the Court under section 67(3) of the Act to direct that section 67(2) thereof shall not apply as regards any class or classes of creditors may be exercised on any hearing of the summons.

(5) Rules 7 to 12 shall have effect subject to any directions given by the Court under this rule.

[E.r. 7]

Inquiry as to debts: company to make list of creditors

7.—(1) Where under rule 6 the Court orders such an inquiry as is mentioned in paragraph (4) thereof, the company in question must, within 7 days after the making of the order, file an affidavit made by an officer of the company competent to make it verifying a list containing—

(a) the name and address of every creditor entitled to any debt or claim to which the inquiry extends,

(b) the amount due to each creditor in respect of such debt or claim or, in the case of a debt or claim which is subject to any contingency or sounds only in damages or for some other reason does not bear a certain value, a just estimate of the value thereof, and

(c) the total of those amounts and values.

(2) The deponent must state in the affidavit his belief that at the date fixed by the Court as the date by reference to which the list is to be made there is no debt or claim which, if that date were the commencement of the winding up of the company, would be admissibly in proof against the company, other than the debts or claims set out in the list and any debts or claims to which the inquiry does not extend, and must also state his means of knowledge of the matters deposed to.

(3) The list must be left at the Bankruptcy and Companies Office not later than one day after the affidavit is filed.

[E.r. 8]

Inspection of list of creditors

8.—(1) Copies of the list made under rule 7 with the omission, unless the Court otherwise directs, of the amount due to each creditor and the estimated value of any debt or claim to which any creditor is entitled, shall be kept at the registered office of the company and at the office of that company's solicitor.

(2) Any person shall be entitled during ordinary business hours, on payment of a fee of 50 pence, to inspect the said list at any such office and to take extracts therefrom.

[E.r. 9]

Notice to creditors

9.  Within 7 days after filing the affidavit required by rule 7 the company must send by post to each creditor named in the list exhibited to the affidavit, at his last known address, a notice stating—

(a) the amount of the reduction sought to be confirmed,

(b) the effect of the order directing an inquiry as to, debts and claims,

(c) the amount or value specified in the list as due or estimated to be due to that creditor, and

(d) the time fixed by the Court within which, if he claims to be entitled to a larger amount, he must send particulars of his debt or claim and the name and address of his solicitor, if any, to the company's solicitor.

[E.r. 10]

Advertisement of petition and list of creditors

10.  After filing the affidavit required by rule 7 the company must insert, in such newspapers and at such times as the Court directs, a notice stating—

(a) the date of presentation of the petition and the amount of the reduction thereby sought to be confirmed,

(b) the inquiry ordered by the Court under rule 6,

(c) the places where the list of creditors may be inspected in accordance with rule 8, and

(d) the time within which any creditor not named in the list who claims to be entitled to any debt or claim to which the inquiry extends must send his name and address, the name and address of his solicitor, if any, and particulars of his debt or claim to the company's solicitor.

[E.r. 11]

Affidavit as to claims made by creditors

11.  Within such time as the Court directs the company must file an affidavit made by the company's solicitor and an officer of the company competent to make it—

(a) proving service of the notices mentioned in rule 9 and advertisement of the notice mentioned in rule 10,

(b) verifying a list containing the names and addresses of the persons (if any) who in pursuance of such notices sent in particulars of debts or claims, specifying the amount of each debt or claim,

(c) distinguishing in such list those debts or claims which are wholly, or as to any and what part thereof, admitted by the company, disputed by the company or alleged by the company to be outside the scope of the inquiry, and

(d) stating which of the persons named in the list made under rule 7, and which of the persons named in the list made under this rule, have been paid or consent to the reduction sought to be confirmed.

[E.r. 12]

Adjudication of disputed claims

12.  If the company contends that a person is not entitled to be entered ill the list of creditors in respect of any debt or claim or in respect of the full amount claimed by him in respect of any debt or claim, then, unless the company is willing to secure payment of that debt or claim by appropriating the full amount of the debt or claim, the company must, if the Court so directs, send to that person by post at his last known address a notice requiring him—

(a) within such time as may be specified in the notice, being not less than 4 clear days after service thereof, to file an affidavit proving his debt or claim or, as the case may be, so much thereof as is not admitted by the company, and

(b) to attend the adjudication of his debt or claim at the place and time specified in the notice, being the time appointed by the Court for the adjudication of debts and claims.

[E.r. 13]

Certifying lists of creditors entitled to object to reduction

13.  The list of creditors entitled to object to such reduction as is mentioned in rule 6(4), as settled by the Court under section 67(2) of the Act, shall be certified and filed by the Master (Bankruptcy) and his certificate shall—

(a) specify the debts or claims (if any) disallowed by the Court,

(b) distinguish the debts or claims (if any) the full amount of which is admitted by the company, the debts or claims (if any) the full amount of which, though not admitted by the company, the company is willing to appropriate, the debts or claims (if any) the amount of which has been fixed by adjudication of the Court under section 67(2) of the Act and other debts or claims;

(c) specify the total amount of the debts or claims payment of which has been secured by appropriation under the said section 67(2);

(d) show which creditors consent to the reduction and the total amount of their debts or claims;

(e) specify the creditors who sought to prove their debts or claims under rule 12 and state which of such debts or claims were allowed.

[E.r. 14]

Evidence of consent of creditor

14.  The consent of a creditor to such reduction as is mentioned in rule 6(4) may be proved in such manner as the Court thinks sufficient.

[E.r. 15]

Time, etc. of hearing of petition for confirmation or reduction

15.—(1) A petition for the confirmation of any such reduction as is mentioned in rule 6(4) shall not, where the Court has directed an inquiry pursuant to that rule, be heard before the expiration of at least 8 clear days after the filing of the certificate mentioned in rule 13.

(2) Before the hearing of such a petition, a notice specifying the day appointed for the hearing must be published at such times and in such newspapers as the Court may direct.

[E.r. 16]

Restriction on taking effect of order under section 57 of the Act

16.  Unless the Court otherwise directs, an order under section 57 of the Act sanctioning the issue of shares at a discount shall direct that an office copy of the order be delivered to the registrar of companies within 10 days after the making of the order or such extended time as the Court may allow and that the order shall not take effect until such copy has been so delivered.

[E.r. 17]

ORDER 103 THE PATENTS ACTS 1949 TO 1961

Definitions

1.  In this Order—

“the Act” means the Patents Act 1949(59);

“the Comptroller” means the Comptroller-General of Patents, Designs and Trade Marks;

“the Crown Solicitor” means the Crown Solicitor for Northern Ireland;

“the Journal” means the Official Journal (Patents).

(2) References this Order to an order under section 24 of the Act include references to an order under that section on an application made by virtue of section 25 of the Act.

[E.r. 1]

Assignment of proceedings

2.  All proceedings in the High Court under the Patents Acts 1949 to 1961, shall be assigned to the Chancery Division.

[E.r. 2]

Advertisement of petition for extension of patent under section 23 of the Act

3.—(1) A person intending to apply for an order under section 23 of the Act extending the term of a patent must insert an advertisement giving notice of his intention once in an appropriate trade paper, and once in a newspaper circulating throughout the United Kingdom.

(2) When the applicant sends the advertisement to an appropriate trade paper for insertion therein; he must send a copy of the advertisement to the Comptroller who shall thereupon cause the advertisement to be inserted in two successive issues of the Journal.

(3) The advertisement must state—

(a) the section of the Act under which the petition is to be presented;

(b) the object of the petition;

(c) the number, the name of the grantee and of the patentee, if different, and the title of the patent in question;

(d) the day, being a day fixed for the purpose and not earlier than 8 weeks after the publication of the advertisement for the second time in the Journal, on which the applicant intends to apply to the Court for directions fixing the date of the hearing of the petition and other directions;

(e) that notices of opposition to the petition must be lodged at the Chancery Office not less than 7 days before the day on which the applicant intends to apply to the Court as aforesaid;

(f) the applicant's address for service within the United Kingdom.

(4) In this rule “appropriate trade paper” means a newspaper or other periodical published in the United Kingdom which is appropriate to the art to which the patent in question relates.

[E.r. 3]

Presentation of petition, etc.

4.—(1) A petition under section 23 of the Act must be presented after the publication of all advertisements required by rule 3 but within 8 weeks from the date on which the first of those advertisements is published.

(2) The Comptroller shall be made respondent to the petition.

(3) The petition shall be made returnable for the day stated in the advertisement as that on which the petitioner intends to apply to the Court for directions.

(4) The petition must be accompanied by an affidavit or affidavits proving compliance with rule 3.

(5) At the time when the petition is presented the petitioner must serve on the Crown Solicitor 3 copies of the petition and of every affidavit accompanying it under paragraph (4).

[E.r. 4]

Notice of intention to oppose petition under section 23

5.—(1) Any person who intends to oppose the making of an order under section 23 of the Act, or to claim the inclusion therein of any restrictions, conditions or provisions, must lodge notice of his intention in the Chancery Office not less than 7 days before the day named in the petitioner's advertisements as that on which he intends to apply to the Court for directions and at the same time serve a copy of the notice on the petitioner and 3 copies on the Crown Solicitor.

The notice must state an address for service within the United Kingdom of the person giving the notice.

(2) A petitioner on whom a notice under paragraph (1) is served must forthwith serve a copy of the petition on the person by whom the notice was served.

(3) A person who has under paragraph (1) served notice of his intention to oppose a petition under the said section 23 shall be entitled to be heard oil the petitioner's application for directions.

[E.r. 5]

Directions by Court in proceedings by petition under section 23

6.—(1) On the hearing, on the date fixed for the purpose, of the petitioner's application for directions in proceedings for an order under section 23 of the Act, or a subsequent hearing, the Court shall give such directions for the conduct of the proceedings as it thinks necessary or expedient and, without prejudice to the generality of the foregoing provision, it shall—

(a) specify the period within which each person by whom notice has been served under rule 5(1) must serve particulars of the objections on which he intends to rely;

(b) give directions as to the manner in which the evidence (including any accounts of expenditure and receipts relating to the petition) shall be given at the hearing of the petition and, if the evidence is to be given by affidavit, specify the period within which the affidavit must be filed;

(c) fix the date of hearing of the petition.

(2) Where the petition includes an application for extension of the time allowed by subsection (2) of the said section 23, the Court may, on the application of the petitioner made on the hearing of his application for directions under this rule, and on such terms as to costs or otherwise as it thinks just, give directions for the determination before the hearing of the petition of the application for such leave, and where it does so, it shall give directions as to the manner in which the evidence shall be given at the hearing of the application and fix the date of the hearing.

[E.r. 6]

Lodging of accounts, particulars of objections, etc.

7.—(1) Where directions are given under rule 6(1)(a) for the service of particulars of objections to a petition under section 23 of the Act, the person opposing the petition must serve one copy of the particulars on the petitioner and 3 copies on the Crown Solicitor.

(2) The petitioner and every person by whom notice has been served under rule 5(1) shall serve on the Crown Solicitor 3 copies of any affidavit, and as far as practicable any exhibits thereto on which he intends to rely at the hearing of the petition.

(3) On receiving notice in that behalf, the petitioner must give to the Crown Solicitor, or a person deputed by him for the purpose, reasonable facilities for inspecting and taking extracts from the books of account by which the petitioner proposes to verify the accounts mentioned in rule 6(1)(b) or from which those accounts have been derived.

(4) Subject to rule 14, a person who fails to comply with paragraph (1) or the directions referred to therein shall be deemed to have abandoned his opposition to the petition.

(5) A person opposing a petition under the said section 23 shall not be entitled on the hearing of the petition to rely on any ground of objection not specified in his particulars of objection.

[E.r. 7]

Setting down petition under section 23

8.—(1) A petition under section 23 of the Act shall be set down for hearing not less than 7 days before the date fixed for the hearing but before it is set down a certificate signed by the petitioner or his solicitor certifying that copies of the petition and notice of the said date have been served on every person opposing the petition and on the Crown Solicitor must be lodged in the Chancery Office together with a bundle consisting of one copy of each of the documents to be used at the hearing arranged in the proper chronological order on numbered pages.

(2) Unless the Court otherwise directs, the petition shall be set down in the same manner as a witness action.

[E.r. 8]

Application by petition for extension of patent under section 24 of the Act

9.—(1) Rules 3 to 8 shall, with the necessary modifications, apply in relation to an application to the High Court by petition for an order under section 24 of the Act extending the term of a patent.

(2) If any person wishes to apply both for an order under section 23 of the Act and for an order under section 24 thereof, he may apply for both orders by the same petition, and rules 3 to 8 shall, with the necessary modifications, apply in relation to the application.

[E.r. 9]

Application by summons for extension of patent under section 24

10.—(1) Where an application to the High Court for an order under section 24 of the Act extending the term of a patent is made by originating summons, the Comptroller shall be made defendant to the summons and the summons must be served on the Crown Solicitor.

(2) Not less than 7 days before the day fixed under Order 28, rule 2, for the hearing of the summons the plaintiff must file an affidavit of the facts on which the plaintiff relies, and serve 3 copies on the Crown Solicitor.

[E.r. 10]

Advertisement of application for extension of patent under section 24

11.—(1) On the first or any adjourned hearing of an originating summons for extension of the term of a patent, the Court shall give directions for advertisement of the application for extension and shall adjourn the hearing to a specified day (in this rule and rules 12 and 13 referred to as “ the appointed day”) fixed in accordance with paragraph (5).

(2) The advertisement required by this rule shall, unless the Court otherwise directs be inserted at least twice in the Journal, and before insertion its contents shall be approved by the Court.

(3) Subject to any directions given by the Court, the advertisement must state—

(a) the section of the Act under which the originating summons has been issued;

(b) the object of the originating summons;

(c) the number, the name of the grantee and of the patentee if different, and the title of the patent in question;

(d) the appointed day;

(e) that notices of objections to the summons must be lodged in the judge's chambers not less than 7 days before the appointed day;

(f) the plaintiff's address for service within the United Kingdom.

(4) Within 3 days after the advertisement has been approved by the Court, the plaintiff must serve a copy thereof on the Comptroller, and, subject to any directions of the Court under paragraph (2), the Comptroller shall thereupon cause the advertisement to be inserted in two successive issues of the Journal.

(5) The appointed day shall be a day not less than 4 weeks after the estimated date of publication of the advertisement for the first time in the Journal.

(6) Except with the leave of the Court, no affidavit shall be filed by the plaintiff between the publication of the advertisement for the first time in the Journal and the appointed day.

[E.r. 11]

Opposition to summons under section 24

12.—(1) Any person who intends to oppose the making (on application by originating summons) of an order under section 24 of the Act, or to claim the inclusion therein of any restrictions, conditions or provisions, must, not less than 7 days before the appointed day, lodge notice of his intention in the Chancery Office and at the same time serve a copy of the notice on the plaintiff and 3 copies on the Crown Solicitor.

The notice must state an address for service within the United Kingdom of the person giving the notice.

(2) A plaintiff on whom a notice under paragraph (1) is served must forthwith serve a copy of the originating summons and of any supporting affidavit filed by him on the person by whom the notice was served.

[E.r. 12]

Directions by Court

13.  On the hearing on the appointed day or a subsequent hearing the Court shall give directions for the service of particulars of objections by any person who has lodged a notice under rule 12(1) and for the filing of any affidavits and as to further conduct of the proceedings.

[E.r. 13]

Power to dispense with procedural requirements

14.  The Court may, on sufficient reason being shown for doing so, excuse an applicant for an order under section 23 or 24 of the Act and any person opposing the application from compliance with any obligation imposed on him by rule 3, 4, 5, 6, 7, 8, 10, 11 or 12.

[E.r. 14]

Provisions where Comptroller appears on hearing

15.  Where the Comptroller elects, or is required by the Court, to appear on the hearing of an application under section 23 or 24 of the Act, he shall not be required to give notice of the grounds of any objection he may think fit to take or of any evidence he may think fit to submit to the Court, but he may give the applicant written notice before the hearing of any observations on the applicant's petition or originating summons, as the case may be, and on the applicant's evidence and accounts which he may think fit to make at the hearing.

[E.r. 15]

Reference to Court of application to Comptroller under section 24

16.—(1) Where an application for an order under section 24 of the Act, is made to the Comptroller and the Comptroller decides to refer the application for decision by the Court, he shall give notice of his decision to the applicant and to any person opposing the making of the order or claiming the inclusion therein of any restrictions, conditions or provisions.

(2) Within 28 days after receipt of such notice the applicant may apply by originating motion for an order under the said section 24 and notice of the motion must be served on the Crown Solicitor and on any such person as is referred to in paragraph (1).

The applicant must also serve on the said solicitor 3 copies of any evidence filed in support of or in opposition to the application.

(3) An applicant who fails to serve notice of the motion in accordance with paragraph (2) shall be deemed to have abandoned his application.

(4) Within 14 days after service of notice of the motion on the Crown Solicitor the Comptroller shall send his file of the proceedings in the matter to the Master together with a statement to the Court of his reasons for referring the application to the Court.

(5) Subject to any directions given by the Court, the procedure on an application for an order under the said section 24 referred to the Court by the Comptroller shall be the same as on an application for such an order made to the Court by originating summons and rules 11 to 15 shall, so far as applicable, apply with the necessary adaptions.

[E.r. 16]

ORDER 104 THE PATENTS ACTS 1949 TO 1961 AND 1977;THE REGISTERED DESIGNS ACTS 1949 to 1971;THE DEFENCE CONTRACTS ACT 1958

Definitions

1.  In this Order—

“the 1949 Act” means the Patents Act 1949(60);

“the 1977 Act” means the Patents Act 1977(61);

“the Comptroller” means the Comptroller-General of Patents, Designs and Trade Marks;

“existing patent” means a patent mentioned in section 127(2)(a) or (c;) of the 1977 Act;

“the Journal” means the journal published pursuant to rules made under section 123(6) of the 1977 Act;

“1977 Act patent” means a patent under the 1977 Act;

“patent” means an existing patent or a 1977 Act patent.

[E.r. 1]

Assignment of proceedings

2.  All proceedings in the High Court under the Patents Acts 1949 to 1961 and 1977, the Registered Designs Acts 1949 to 1961 and the Defence Contracts Act 1958(62), and all proceedings for the determination of a question or the making of a declaration relating to a patent under the inherent jurisdiction of the High Court, shall be assigned to the Chancery Division.

[E.r. 2]

Application for leave to amend specification under section 30 of the 1949 Act or section 75 of the 1977 Act

3.—(1) A patentee or the proprietor of a patent intending to apply under section 30 of the 1949 Act or under section 75 of the 1977 Act for leave to amend his specification must give notice of his intention to the Comptroller accompanied by a copy of an advertisement—

(a) identifying the proceedings pending before the Court in which it is intended to apply for such leave;

(b) giving particulars of the amendment sought;

(c) stating the applicant's address for service within the United Kingdom, and

(d) stating that any person intending to oppose the amendment who is not a party to the proceedings must within 28 days after the appearance of the advertisement give written notice of his intention to the applicant;

and the Comptroller shall insert the advertisement once in the Journal.

A person who gives notice in accordance with the advertisement shall be entitled to be heard on the application subject to any direction of the Court as to costs.

(2) As soon as may be after the expiration of 35 days from the appearance of the advertisement the applicant must make his application under the said section 30 or 75, as the case may be, by motion in the proceedings pending before the Court; and notice of the motion, together with a copy of the specification certified by the Comptroller and showing in coloured ink the amendment sought, must be served on the Comptroller, the parties to the proceedings and any person who has given notice of his intention to oppose the amendment.

(3) On the hearing of the motion the Court shall give such directions for the further conduct of the proceedings on the motion as it thinks necessary or expedient and, in particular, directions—

(a) requiring the applicant and any party or person opposing the amendment sought to exchange statements of the grounds following the amendment and of objections to the amendment;

(b) determining whether the motion shall be heard with the other proceedings relating to the patent in question or separately and, if separately; fixing the date of hearing thereof;

(c) as to the manner in which the evidence shall be given and, if the evidence is to be given by affidavit, fixing the times within which the affidavits must be filed.

(4) Where the Court allows a specification to be amended, the applicant must forthwith lodge with the Comptroller an office copy of the order made by the Court and, if so required by the Court or Comptroller, leave at the Patent Office a new specification and drawings as amended, prepared in compliance with the 1949 or 1977 Act, whichever is applicable, and the rules made under those Acts respectively.

The Comptroller shall cause a copy of the order to be inserted at least once in the Journal.

[E.r. 3]

Application for revocation of patent

4.—(1) An application under section 72 of the 1977 Act for the revocation of a patent shall be made by petition.

This paragraph does not apply to an application made in pending proceedings.

(2) The respondent to a petition under section 32 of the 1949 Act or section 72 of the 1977 Act must serve an answer on the petitioner within 21 days after service of the petition on him.

[E.r. 4]

Action for infringement

5.—(1) Notwithstanding anything in Order 5, rule 4, proceedings in which a claim is made by the plaintiff in respect of the infringement of a patent shall be begun by writ.

(2) The plaintiff in such an action must serve with his statement of claim particulars of the infringement relied on, showing which of the claims in the specification of the patent are alleged to be infringed and giving at least one instance of each type of infringement alleged.

(3) If a defendant in such an action alleges, as a defence to the action, that at the time of the infringement there was in force a contract or licence relating to the patent made by or with the consent of the plaintiff and containing a condition or term void by virtue of section 44 of the 1977 Act, he must serve on the plaintiff particulars of the date of, and parties to, each such contract or licence and particulars of each such condition or term.

[E.r. 5]

Objection to validity of patent

6.—(1) A person who—

(a) presents a petition under section 32 of the 1949 Act or section 72 of the 1977 Act for the revocation of a patent, or

(b) being party to an action concerning a patent, either questions the validity of the patent or applies by counterclaim in the action for revocation of the patent,

must serve with his petition or other pleading particulars of the objections to the validity of the patent on which he relies.

(2) Particulars given pursuant to paragraph (1) must state every ground on which the validity of the patent is questioned and must include such particulars as will clearly define every issue which it is intended to raise.

(3) If the grounds stated in the particulars of objections include want of novelty or want of any inventive step, the particulars must state the manner, time and place of every prior publication or user relied upon and, if prior user is alleged, must—

(a) specify the name of every person alleged to have made such user,

(b) state whether such user is alleged to have continued until the priority date of the claim in question or of the invention, as may be appropriate, and, if not, the earliest, and latest date on which such user is alleged to have taken place,

(c) contain a description accompanied by drawings, if necessary, sufficient to identify such user, and

(d) if such user relates to machinery or apparatus, state whether the machinery or apparatus is in existence and where it can be inspected.

(4) If in the case of an existing patent—

(a) one of the grounds stated in the particulars of objections is that the invention, so far as claimed in any claim of the complete specification, is not useful, and

(b) it is intended, in collection with that ground, to rely on the fact that an example of the invention which is the subject of any such claim cannot be made to work, either at all or as described in the specification,

the particulars must state that fact and identify each such claim and must include particulars of each such example, specifying the respects in which it is alleged that it does not work or does not work as described.

[E.r. 6]

Amendment of particulars

7.  Without prejudice to Order 20, rule 5, the Court may at any stage of the proceedings allow a party to amend any particulars served by him under the foregoing provisions of this Order on such terms as to costs or otherwise as may be just.

[E.r. 7]

Further particulars

8.  The Court may at any stage of the proceedings order a party to serve on any other party further or better particulars of infringements or of objections.

[E.r. 8]

Restrictions on admission of evidence

9.—(1) Except with the leave of the judge hearing any action or other proceeding relating to a patent, no evidence shall be admissible in proof of any alleged infringement, or of any objection to the validity, of the patent, if the infringement or objection was not raised in the particulars of infringements or objections, as the case may be.

(2) In any case or other proceeding relating to a patent, evidence which is not in accordance with a statement contained in particulars of objections to the validity of the patent shall not be admissible in support of such an objection unless the judge hearing the proceeding allows the evidence to be admitted.

(3) If any machinery or apparatus alleged to have been used before the priority date mentioned in rule 6(3)(b) is in existence at the date of service of the particulars of objections, no evidence of its user before that date shall be admissible unless it is proved that the party relying on such user offered, where the machinery or apparatus is in his possession, inspection of it to the other parties to the proceedings or; where it is not, used all reasonable endeavours to obtain inspection of it for those parties.

[E.r. 9]

Proceedings for infringement or revocation: summons for directions

10.—(1) In an action for infringement of a patent (whether or not any other relief is claimed) and in proceedings by petition for the revocation of a patent the plaintiff or petitioner must, within one month after service thereof, take out a summons for directions as to the place and mode of trial returnable in not less than 21 days, and if the plaintiff or petitioner does not take out such a summons in accordance with this paragraph, the defendant or respondent, as the case may be, may do so.

The summons may be heard in chambers or in court as the Court thinks fit.

(2) The Court hearing a summons under this rule may give such directions—

(a) for the service of further pleadings or particulars,

(b) for the discovery of documents,

(c) for securing the making of admissions,

(d) for the service of interrogatories and of answers thereto,

(e) for the taking by affidavit of evidence relating to matters requiring expert knowledge, and for the filing of such affidavits and the service of copies thereof on the other parties,

(f) for the service on the other parties, by any party desiring to submit experimental proof, of full and precise particulars of the experiments proposed and of the facts which he claims to be able to establish thereby,

(g) for the making of experiments, tests, inspections or reports,

(h) for the hearing, as a preliminary issue, of any question that may arise (including any question as to the construction of the specification or other documents),

and otherwise as the Court thinks necessary or expedient for the purpose of defining and limiting the issues to be tried, restricting the number of witnesses to be called at the trial of any particular issue and otherwise securing that the case shall be disposed of, consistently with adequate hearing, in the most expeditious manner.

Where the evidence is directed to be given by affidavit, the deponents must attend at the trial for cross-examination unless, with the concurrence of the Court, the parties otherwise agree.

(3) On the hearing of a summons under this rule the Court shall consider, if necessary of its own motion, whether an independent scientific adviser should be appointed under rule 11 to assist the Court.

(4) No action for infringement of a patent or petition for the revocation of a patent shall be set down for trial unless and until a summons under this rule in the action or proceedings has been taken out and the directions given on the summons have been carried out or the time fixed by the Court for carrying them out has expired.

[E.r. 10]

Appointment of a scientific adviser

11.—(1) In any proceedings under the 1949 or 1977 Act the Court may at any time, and on or without the application of any party, appoint an independent scientific adviser to assist the Court, either—

(a) by sitting with the judge at the trial or hearing of the proceedings, or

(b) by inquiring and reporting on any question of fact or of opinion not involving a question of law or construction,

according as the Court may direct.

(2) The Court may nominate the scientific adviser and, where appropriate, settle any question or instructions to be submitted or given to him.

[E.r. 11]

Determination of question or application where Comptroller declines to deal with it

12.  Where the Comptroller—

(a) declines to deal with a question under section 8(7), 12(2), 37(8) or 61(5) of the 1977 Act;

(b) declines to deal with an application under section 40(5) of that Act, or

(c) certifies under section 72(7)(b) of that Act that the question whether a patent should be revoked is one which would more properly be determined by the court,

any person entitled to do so may, within 28 days after the Comptroller's decision, apply to the Court by originating summons to determine the question or application.

[E.r. 12]

Application by employee for compensation under section 40 of the 1977 Act

13.—(1) An application by an employee for compensation under section 40(1) or (2) of the 1977 Act shall be made by originating summons issued within the period which begins when the relevant patent is granted and which expires one year after it has ceased to have effect:

Provided that, where a patent has ceased to have effect by reason of a failure to pay any renewal fee within the period prescribed for the payment thereof and an application for restoration is made to the Comptroller under section 28 of the said Act, the said period shall—

(a) if restoration is ordered, continue as if the patent had remained continuously in effect, or

(b) if restoration is refused, be treated as expiring one year after the patent ceased to have effect or six months after the refusal, whichever is the later.

(2) On the day fixed for the hearing of the originating summons under Order 28, rule 2, the Court shall, without prejudice to the generality of Order 28, rule 4, give directions as to the manner in which the evidence (including any accounts of expenditure and receipts relating to the claim) shall be given at the hearing of the summons and, if the evidence is to be given by affidavit, specify the period within which the affidavit must be filed.

(3) The Court shall also give directions as to the provision by the defendant to the plainttiff, or a person deputed by him for the purpose, of reasonable facilities for inspecting and taking extracts from the books of account by which the defendant proposes to verify the accounts mentioned in paragraph (2) or from which those accounts have been derived.

[E.r. 13]

Communication of information to European Patent Office

14.—(1) The Court may authorise the communication to the European Patent Office or the competent authority of any country which is a party to the European Patent Convention of any such information in the files of the court as the Court thinks fit.

(2) Before complying with a request for the disclosure of information under paragraph (1) the Courts shall afford to any party appearing to be affected by the request the opportunity of making representations, in writing or otherwise, on the question whether the information should be disclosed.

[E.r. 15]

Proceedings for determination of certain disputes

15.—(1) The following proceedings must be begun by originating motion, that is to say—

(a) proceedings for the determination of any dispute referred to the Court under—

(i) section 48 of the 1949 Act or section 58 of the 1977 Act;

(ii) paragraph 3 of Schedule 1 to the Registered Designs Act 1949(63), or

(iii) section 4 of the Defence Contracts Act 1958;

(b) any application under section 45(3) of the 1977 Act.

(2) There must be at least 10 clear days between the serving of notice of a motion under this rule and the day named in the notice for hearing the motion.

(3) On the hearing of a motion under this rule the Court shall give such directions for the further conduct of the proceedings as it thinks necessary or expedient and, in particular, directions for the service of particulars and as to the manner in which the evidence shall be given and as to the date of the hearing.

[E.r. 16]

Application for rectification of register of patents or designs

16.—(1) An application to the Court for an order that the register of patents or the register of designs be rectified must be made by originating motion, except where it is made in a petition for the revocation of a patent or by way of counterclaim in proceedings for infringement or by originating summons in proceedings for an order under section 51 of the Trustee Act (Northern Ireland) 1958(64).

(2) Where the application relates to the register of patents, the applicant shall forthwith serve an office copy of the application on the comptroller, who shall be entitled to appear and to be heard on the application.

[E.r. 17]

Counterclaim for rectification of register of designs

17.—(1) Where in any proceedings a claim is made for relief for infringement of the copyright in a registered design, the party against whom the claim is made may in his defence put in issue the validity of the registration of that design or may counterclaim for an order that the register of designs be rectified by cancelling or varying the registration or may do both those things.

(2) A party to any such proceedings who in his pleading (whether a defence or counterclaim) disputes the validity of the registration of a registered design must serve with the pleading particulars of the objections to the validity of the registration on which he relies in support of the allegation of invalidity.

(3) A party to any such proceedings who counterclaims for an order that the register of designs be rectified must serve on the Comptroller a copy of the counterclaim together with a copy of the particulars mentioned in paragraph (2); and the Comptroller shall be entitled to take such part in the proceedings as he thinks fit but need not serve a defence or other pleading unless ordered to do so by the Court.

[E.r. 18]

ORDER 105 REGISTRATION OF MAINTENANCE ORDERS: ATTACHMENT OF EARNINGS ORDERS FOR THE ENFORCEMENT OF MAINTENANCE ORDERS

I. INTERPRETATION

Definitions

1.  In this Order—

“the Act of 1920” means the Maintenance Orders (Facilities for Enforcement) Act, 1920(65);

“the Act of 1950” means the Maintenance Orders Act, 1950(66);

“the Act of 1958” means the Maintenance Orders Act, 1958(67);

“the Act of 1966” means the Maintenance and Affiliation Orders Act (Northern Ireland) 1966(68);

“the Act of 1972” means the Maintenance Orders (Reciprocal Enforcement) Act 1972(69);

“the Office” means the Probate and Matrimonial Office.

II. PROCEEDINGS UNDER THE ACT OF 1920

Registration, etc., of orders under Act of 1920

2.—(1) The prescribed officer for the purposes of section 1(1) of the Act of 1920 shall be the Master, and on receiving from the Secretary of State a copy of a maintenance order made by a court in any part of Her Majesty's dominions outside the United Kingdom to which the Act of 1920 extends he shall cause the order to be registered in the register kept for the purpose of that Act (in this rule referred to as “ the register”).

The copy of the order received from the Secretary of State shall be filed in the Office.

(2) An application for the transmission of a Northern Ireland maintenance order under section 2 of the Act of 1920 shall be made to the Master by lodging in the Office a certified copy of the order and an affidavit by the applicant stating the applicant's reasons for believing that the person liable to make payments under the order is resident in some part of Her Majesty's dominions outside the United Kingdom to which the Act of 1920 extends, together with full particulars, so far as known to the applicant, of that person's address and occupation and any other information which may be required by the law of that part of Her Majesty's dominions for the purpose of the enforcement to the order.

(3) If it appears to the Master that the person liable to make payments under the Northern Ireland maintenance order is resident in some part of Her Majesty's dominions outside the United Kingdom to which the Act of 1920 extends, he shall send the certified copy of the order to the Secretary of State for transmission to the Governor of that part of Her Majesty's dominions.

Particulars of any Northern Ireland maintenance order sent to the Secretary of State under the said section 2 shall be entered in the register and the fact that this has been done shall be noted in the court minutes.

(4) Any person who satisfies the Master that he is entitled to or liable to make payments under a Northern Ireland maintenance order or a maintenance order made by a court in any part of Her Majesty's dominions outside the United Kingdom to which the Act of 1920 extends, or a solicitor acting on behalf of any such person or, with the leave of the Master, any other person, may inspect the register and bespeak copies of any order which has been registered and of any document filed therewith.

(5) In this rule “Northern Ireland maintenance order” means a maintenance order made by the High Court.

[E.r. 2]

III. PROCEEDINGS UNDER PART II OF THE ACT OF 1950 AND PART I OF THE ACT OF 1958

Interpretation of Part III

3.  In this Part of this Order—

“Deputy Principal Clerk” means the Deputy Principal Clerk of Session;

“Senior Registrar” means the Senior Registrar of the Principal Registry of the Family Division of the High Court of Justice in England and Wales;

“Northern Ireland Order” means a maintenance order made by the High Court;

“English order” means a maintenance order made by the High Court of Judicature in England and Wales;

“Scottish order” means a maintenance order made by the Court of Session;

“Maintenance order” means a maintenance order to which section 16 of the Act of 1950 applies;

“the register” means the register kept for the purpose of the Act of 1950 and the Act of 1958;

"a magistrates' court" means a magistrates' court in England and Wales;

Registration, etc., of Northern Ireland Order under the Act of 1950

4.—(1) An application for the registration of a Northern Ireland order under Part II of the Act of 1950 may be made by lodging with the Master—

(a) a letter of application;

(b) an affidavit by the applicant;

(c) a copy of that affidavit, and

(d) a certified copy of the order.

(2) The affidavit lodged under paragraph (1) shall state—

(a) the address in the United Kingdom, and the occupation of the person liable to make payments under the order;

(b) the date of service of the order on the person liable to make payments thereunder or, if the order has not been served, the reason why service has not been effected;

(c) the reason why it is convenient that the order should be enforceable in England and Wales or Scotland as the case may be;

(d) the amount of any arrears due to the applicant under the order, and

(e) that the order is not already registered.

(3) If it appears to the Master that the person liable to make payments under the order resides in England and Wales or Scotland and that it is convenient that the order should be enforceable there, he shall send a certified copy of the order and the applicant's affidavit to the Senior Registrar or the Deputy Principal Clerk as the case may be.

(4) The prescribed officer for the purposes of the Act of 1950 and the Act of 1958 shall be the Master.

(5) On receipt of notice of the registration of a Northern Ireland order in the Supreme Court of Judicature in England and Wales or the Court of Session the Master shall cause particulars of the notice to be entered in Part I of the register.

(6) The fact that the order has been registered in the Supreme Court of Judicature in England and Wales or the Court of Session shall be noted in the court minutes.

Re-registration of a Northern Ireland Order in a Magistrates' Court under Part 1 of the Act of 1958

5.—(1) Where a Northern Ireland order bas been registered in the Supreme Court of Judicature in England and Wales under Part II of the Act of 1950 an application under Part I of the Act of 1958 for the registration of that order in a magistrates' court shall be made by lodging with the Master—

(a) a letter of application;

(b) an affidavit by the applicant;

(c) a copy of the affidavit, and

(d) a certified copy of the order.

(2) The affidavit lodged under paragraph (1) shall state—

(a) the date of the registration of the order in the Supreme Court of Judicature in England and Wales under Part II of the Act of 1950;

(b) the address and occupation of the person liable to make payments under the order;

(c) the reason why registration of the order in a magistrates' court is desired;

(d) the amount of any arrears due under the order, the date to which those arrears have been calculated and the date on which the next payment under the order falls due;

(e) the date of birth of each child named in the Order;

(f) whether any proceedings are pending for the enforcement of the order; and

(g) that the order is not already registered under the Act of 1958 or if the order has been registered under that Act, whether the registration has been cancelled.

(3) The period required to be subscribed by rules of court for the purpose of section 2(2) of the Act of 1958 shall be 14 days.

(4) If the application is granted the Master shall send to the clerk of the appropriate magistrates' court—

(a) the copy of the affidavit;

(b) a certified copy of the Northern Ireland order, and

(c) a copy of the order granting the application.

(5) On receiving notice that the order has been registered in a magistrates' court the Master shall enter particulars of the registration in Part I of the register and in the Court minutes.

Discharge or variation of registered order

6.  Where the High Court makes an order varying or discharging a Northern Ireland order registered under the Act of 1950 the Master shall send to the Senior Registrar or the Deputy Principal Clerk, as the case may be, and where the order is re-registered in a magistrates' court under the Act of 1958 to the clerk of that court, a certified copy of the order varying or discharging the registered order.

Cancellation of registration

7.  Where the registration of a Northern Ireland order registered in the Supreme Court of Judicature in England and Wales or the Court of Session under the Act of 1950 is cancelled under section 24(1) of the Act of 1950, and where the order is registered in a magistrates' court under the Act of 1958 the registration in that court is cancelled under section 5 of the Act of 1958 the Master on receipt of notice of cancellation shall cause particulars of it to be entered in Part I of the register.

Registration, etc. of English and Scottish Orders

8.—(1) In relation to an English or Scottish order the prescribed officer for the purposes of section 17(2) of the Act of 1950 shall be the Master.

(2) On receipt of a certified copy of an English or Scottish order for registration, the Master shall—

(a) cause the order to be registered in Part II of the register and notify the Senior Registrar or Deputy Principal Clerk as the case may be, that this has been done;

(b) file the certified copy and any statutory declaration or affidavit as to the amount of any arrears due under the order.

(3) An application under section 21(2) of the Act of 1950 by a person liable to make payments under a Scottish order registered in the High Court to adduce before the Court such evidence as is mentioned in that section shall be made by lodging a request for an appointment before the Master; and notice of the day and time fixed for hearing shall be sent by post to the applicant and to the person entitled to payments under the order.

(4) The prescribed officer to whom notice of the discharge or variation of an English or Scottish order registered in the High Court is to be given under section 23(1)(a) of the Act of 1950 shall be the Master to whom a certified copy of the order was sent for registration, and on receipt of the notice he shall cause particulars of it to be registered in Part II of the register.

(5) An application under section 24(1) of the Act of 1950 for the cancellation of the registration of an English or Scottish order shall be made ex parte by affidavit to the Master, and the Master, if he cancels the registration, shall note the cancellation in Part II of the register and send notice of the cancellation to the Senior Registrar or Deputy Principal Clerk, as the case maybe.

[E.r. 5]

Inspection of register

9.  Any person who satisfies the Master that he is entitled to or liable to make payments under a maintenance order of a superior court or a solicitor acting on behalf of any such person or, with the leave of the Master any other person, may inspect the register and bespeak copies of any such order which is registered in the High Court under Part II of the Act of 1950 and of any statutory declaration or affidavit filed therewith.

[E.r. 6]

IV. REGISTRATION, ETC. OF CERTAIN ORDERS UNDER THE ACT OF 1966

Interpretation of Part IV

10.—(1) In this Part of this Order—

“maintenance order” has the meaning assigned to it by section 10(2) of of the Act of 1966;

“proper officer” means the Master;

“the register” means any register kept for the purposes of the Act of 1966.

[E.r. 7]

Application for registration

11.—(1) An application under section 11 of the Act of 1966 for the registration in a court of summary jurisdiction of a maintenance order made by the High Court may be made—

(a) on the making of the maintenance order or an order varying the maintenance order, or

(b) at any other time by lodging with the proper officer a certified copy of the maintenance order and an affidavit by the applicant, together with a copy thereof, stating—

(i) the address and occupation of the person liable to make payments under the maintenance order;

(ii) the reason why registration of the maintenance order in a court of summary jurisdiction is desired;

(iii) the amount of any arrears due to the applicant under the maintenance order, the date to which those arrears have been calculated and the date on which the next payment under the maintenance order falls due;

(iv) the date of birth of each child named in the maintenance order;

(v) that the maintenance order is not already registered under the Act of 1966; and

(vi) whether any proceedings are pending for the enforcement of the maintenance order.

(2) Where such application is granted, the applicant must, if he has not already done so, lodge with the proper officer a certified copy of the maintenance order and, where the application was granted on the making of the maintenance order or any order varying the maintenance order, a statement signed by the applicant or his solicitor, and a copy thereof, giving the address of the person entitled to receive payments under the maintenance order and the particulars mentioned in paragraph (1)(b)(i), (iii) and (iv).

(3) The period required to be prescribed by rules of Court for the purpose of section 11(2) of the Act of 1966 shall be 14 days.

(4) The proper officer shall cause the certified copy of a maintenance order required by the said section 11(2) to be sent to the clerk of petty sessions acting for the petty sessions district in which the defendant appears to be, indorsed with a note that the application for registration of the maintenance order has been granted and to be accompanied by a copy of the affidavit or statement lodged under paragraph (1) or (2), as the case may be.

(5) On receipt of notice that a maintenance order made by the High Court has been registered in a court of summary jurisdiction in accordance with section 11(5) of the Act of 1966, the proper officer shall enter particulars of the registration in the Court minutes.

[E.r. 8]

Registration of order made by a court of summary judisdiction

12.  On receipt of a certified copy of a maintenance order made by a court of summary jurisdiction sent to him pursuant to section 11(4)(c) of the Act of 1966, the Master, who is the prescribed officer for the purpose of that section, shall cause the order to be registered in the High Court by filing the copy and making an entry in the register and shall notify the clerk of petty sessions that the maintenance order has been duly registered.

[E.r. 9]

Variation or discharge of registered order

13.—(1) Where the High Court makes an order varying or discharging a maintenance order registered in a court of summary jurisdiction under Part II of the Act of 1966, the proper officer shall send a certified copy of the first-mentioned order to the clerk of petty sessions concerned.

(2) Where a certified copy of an order varying a maintenance order made by the High Court and registered in a court of summary jurisdiction under Part II of the Act of 1966 is received from the clerk of petty sessions, the proper officer shall file the copy and enter particulars of the variation in the Court minutes.

(3) Where a certified copy of an order varying or discharging a maintenance order made by a court of summary jurisdiction and registered in the High Court under Part II of the Act of 1966 is received from a clerk of petty sessions, the proper officer shall—

(a) file the copy, and

(b) enter particulars of the variation or discharge in the register.

[E.r. 10]

Appeal from variation, etc. of order by court of summary jurisdiction

14.  Order 55 shall apply to an appeal which lies to a Judge of the High Court under section 13(8) of the Act of 1966.

[E.r. 11]

Cancellation of registration

15.—(1) A notice under section 14 of the Act of 1966 by a person entitled to receive payments under a maintenance order registered in the High Court must be given to the proper officer.

(2) Where the High Court gives notice under the said section 14, the proper officer shall endorse the notice on the certified copy mentioned in rule 13(1).

(3) Where notice under section 14 of the Act of 1966 is given in respect of a maintenance order registered in the High Court, the proper officer, on being satisfied by an affidavit by the person entitled to receive payments under the order that no proceedings for the enforcement of the order are pending, shall—

(a) cancel the registration by entering particulars of the notice in the register, and

(b) send notice of the cancellation to the clerk of petty sessions acting for the petty sessions district in which the order was made, stating, if such be the case, that the cancellation is in consequence of a notice given under subsection (1) of section 14 of the Act of 1966.

(4) On receipt of notice from a clerk of petty sessions that the registration in a court of summary jurisdiction under the act of 1966 of a maintenance order made by the High Court has been cancelled, the proper officer shall enter particulars of the cancellation in the Court minutes.

[E.r. 12]

V. PROCEEDINGS UNDER THE ACT OF 1972

Interpretation of Part V

16.  In this Part of this Order—

(a) any reference to a provision of the Act of 1972 in relation to a country or territory with respect to which an Order in Council has been made under Section 40 of that Act is a reference to that provision as applied by the Order in Council;

(b) for the purposes of sections 2(3), 5(4) and 14 of the Act of 1972 the prescribed officer shall be the Master.

[E.r. 21]

Application for transmission of maintenance order to reciprocating country

17.  An application for a maintenance order to be sent to a reciprocating country under section 2 of the Act of 1972 shall be made by lodging in the Office—

(a) an affidavit by the applicant stating—

(i) the applicant's reason for believing that the payer under the maintenance order is residing in that country, and

(ii) the amount of any arrears due to the applicant under the order, the date to which those arrears have been calculated and the date on which the next payment under the order falls due;

(b) a certified copy of the maintenance order;

(c) a statement giving such information as the applicant possesses as to the whereabouts of the payer;

(d) a statement giving such information as the applicant possesses for facilitating the identification of the payer (including, if known to the applicant, the name and address of any employer of the payer, his occupation and the date and place of issue of any passport of the payer), and

(e) if available to the applicant, a photograph of the payer.

[E.r. 22]

Certification of evidence given on provisional order

18.  Where the High Court makes a provisional order under section 5 of the Act of 1972, the document required by subsection (4) of that section to set out or summarise the evidence given in the proceedings shall be authenticated by a certificate signed by the Master.

[E.r. 23]

Confirmation of provisional order

19.—(1) On receipt by the High Court of a certified copy of a provisional order made in a reciprocating country, together with the document mentioned in section 5(5) of the Act of 1972, the Master shall fix a time and place for the Court to consider whether or not the provisional order should be confirmed and shall send to the payee under the maintenance order notice of the time and place so fixed together with a copy of the provisional order and of that document.

(2) The Master shall send to the court which made the provisional order a certified copy of any order confirming or refusing to confirm that order.

[E.r. 24]

Taking of evidence for court in reciprocating country

20.—(1) The High Court shall be the prescribed court for the purposes of taking evidence pursuant to a request by a court in a reciprocating country under section 14 of the Act of 1972 where—

(a) the request for evidence relates to a maintenance order made by a superior court in the United Kingdom, and

(b) the witness resides in Northern Ireland.

(2) The evidence may be taken before a judge or officer of the High Court as the court thinks fit and the appropriate provisions of these Rules relating to the examination on oath before a Judge, an officer or examiner of the Court or some other person, of any witness or person shall apply with the necessary modifications.

[E.r. 25]

Notification of variation or revocation

21.  Where the High Court makes an order (other than a provisional order) varying or revoking a maintenance order a copy of which has been sent to a reciprocating country in pursuance of section 2 of the Act of 1972, the Master shall send a certified copy of the order to the court in the reciprocating country.

[E.r. 26]

Transmission of documents

22.  Any document required to be sent to a court in a reciprocating country under section 5(4) or section 14(1) of the Act of 1972 or by rule 19(2) or 21 shall be sent to the Secretary of State for transmission to that court unless the Master is satisfied that, in accordance with the law of the country, the document may properly be sent by him direct to that court.

[E.r. 27]

Application of Part V to the Republic of Ireland

23.—(1) In relation to the Republic of Ireland rules 16 to 22 shall have effect subject to the provisions of this rule.

(2) For the words “a reciprocating country” wherever they occur there shall be substituted the words "the Republic of Ireland."

(3) In rule 16(2) for the reference to section 5(4) there shall be substituted a reference to section 5(2).

(4) the following paragraphs shall be added to rule 17 :

“(f) a statement as to whether or not the payer appeared in the proceedings in which the maintenance order was made and, if he did not, the original or a copy certified by the applicant or his solicitor to be a true copy of a document which establishes that notice of the institution of the proceedings was served on the payer;

(g) a document which establishes that notice of the order was sent to the payer, and

(h) if the payee received legal aid in the proceedings in which the order was made, a copy certified by the applicant or his solicitor to be a true copy of the legal aid certificate.”

(5) For rule 18 there shall be substituted the following rule :

“Certification of evidence given on application for variation or revocation

18.   Where an application is made to the High Court for the variation or revocation of an order to which section 5 of the Act of 1972 applies, the certified copy of the application and the documents required by subsection (2) of that section to set out or summarise the evidence in support of the application shall be authenticated by a certificate signed by the Master.”

(6) Rule 19 shall not apply.

(7) For rule 21 there shall be substituted the following rule :

“Notification of variation or revocation

21.   Where the High Court makes an order varying or revoking a maintenance order to which section S of the Act of 1972 applies, the Master shall send a certified copy of the order and a statement as to the service on the payer of the documents mentioned in subsection (2) of that section to the court in the Republic of Ireland by which the maintenance order is being enforced.”

(8) Rule 22 shall not apply.

[E.r. 28]

VI. ATTACHMENT OF EARNINGS ORDERS UNDER THE JUDGMENTS (ENFORCEMENT) ACT (NORTHERN IRELAND) 1969

Interpretation

24.  In this part of this Order—

“the Act of 1969” means the Judgments (Enforcement) Act (Northern Ireland) 1969(70);

“the Order of 1978” means the Matrimonial Causes (Northern Ireland) Order 1978(71);

“maintenance order” means any order specified in section 77D(1)(a) of the Act of 1969;

Application for attachment of earnings order by the person entitled to payments

25.—(1) Where the person to whom payments are required to be made under a maintenance order desires to apply to the High Court under section 73 of the Act of 1969 for an attachment of earnings order to secure those payments the application must be made by summons, issued out of the Office.

The defendant or respondent to the summons (in this order referred to as “the defendant”) shall be the person liable to make payments under the maintenance order and any application under Article 34 of the Order of 1978 for leave to enforce payment of any arrears which became due more than 12 months before the issue of the summons shall be made by the summons.

(2) The summons must be supported by an affidavit by the applicant stating—

(a) particulars of the maintenance order;

(b) the date of service of the maintenance order on the defendant or, if the order has not been served, the reason why service has not been effected;

(c) the amount of any arrears due to the applicant under the maintenance order, the date to which those arrears have been calculated and the date on which the next payment under the order falls due;

(d) particulars of any proceedings which have been taken for the enforcement of the maintenance order;

(e) the name and address of any person believed to be the defendant's employer;

(f) such of the following particulars relating to the defendant as are known to the applicant, that is to say—

(i) his full name and address,

(ii) his place of work,

(iii) the nature of his work and his works number, if any;

(g) such other facts relevant to the names of the defendant as are known to the applicant and in particular details of any other attachment of earnings order made by any other court must be given.

(3) Unless the Court otherwise directs, the summons, together with a copy of the affidavit in support, must be served on the defendant personally or by post at least 14 days before the return day and the defendant may, within 10 days after the service, file an affidavit in answer and in that case must serve a copy of his affidavit on the applicant within 3 days after filing it.

[E.r. 13]

Notice to employer

26.  Without prejudice to the powers conferred by section 77 of the Act of 1969, the Court may at any stage of the proceedings send to any person appearing to have the debtor in his employment a notice requesting him to give to the Court within such period as may be specified in the notice a statement of the debtor's earnings and anticipated earnings with such other particulars as may be so specified.

Exercise of power to obtain statement of earnings

27.  An order under section 77 of the Act of 1969 shall be endorsed with or incorporate a notice warning the person to whom it is directed of the consequences of disobedience to the order and shall be served on him personally.

Application for attachment of earnings order by person liable to make payments

28.  An application by the person liable to make payment under a maintenance order of the High Court for an attachment of earnings order to secure those payments may be made on the making of the maintenance order or an order of the High Court varying the maintenance order.

[E.r. 14]

Form and service of order

29.—(1) An attachment of earnings order must be made in Form No. 49 in Appendix A and the particulars of the defendant required to be given in the first paragraph of that form shall, so far as they are known to the Court, be the prescribed particulars for the purposes of section 73(4) of the Act of 1969.

(2) The Court shall cause a copy of an attachment of earnings order and of any order varying or discharging such an order to be served on the defendants and on the person to Whom the attachment of earnings order is directed.

(3) Notwithstanding any provision of these Rules relating to the service of documents, service under this rule of a copy of an order on a person other than a corporation shall be effected by sending the copy to him at his last known place of residence or, where he is the person to whom the attachment of earnings order is directed, at his place of business.

(4) Service under this rule of a copy of an order on a corporation shall be effected by sending the copy to it at—

(a) such address, if any, as the corporation may in a written request to the Court have specified for the purpose of this rule in relation to the defendant or to the class or description of persons to which he belongs, or

(b) the registered office of the corporation or, if the corporation has no registered office, any place where it resides or carries on business.

(5) A copy of Schedule 1A to the Act of 1969 shall be served with or annexed to the attachment of earnings order.

[E.r. 15]

Application to revive an attachment of earnings order

30.—(1) An application to revive an attachment of earnings order shall be treated as if it were an application for such an order under rule 25.

(2) A copy of the order for the revival of which the application is made shall be lodged with the application.

(3) Upon making an order under this role the original attachment of earnings order may be varied as the Court may think fit.

Notice of cessation of order

31.  Where an attachment of earnings order ceases to have effect by virtue of section 77D(4)(b) or (5) of the Act of 1969, the notice of the cessation required by section 77D(6) of that Act to be given to the person to whom the order was directed shall be given by the Master if the related maintenance order—

(a) was made by the High Court and is not registered in a court of summary jurisdiction under Part II of the Act of 1966, or

(b) was made by a court of summary jurisdiction and is registered in the High Court under the said Part II, or

(c) has ceased to be registered in the High Court under Part II of the Act of 1950.

[E.r. 16]

Discharge or variation by court of own motion

32.—(1) Subject to paragraph 5, the powers conferred by section 76(1) of the Act of 1969 may be exercised by the Court of its own motion in the circumstances mentioned in the following paragraphs.

(2) Where it appears to the Court that a person served with an attachment of earnings order directed to him has not the defendant in his employment, the Court may discharge the order.

(3) Where an attachment of earnings order which has lapsed under section 76(6) of the Act of 1969 is again directed to a person who appears to the Court to have the defendant in his employment, the Court may make such consequential variations in the order as it thinks fit.

(4) Where, after an attachment of earnings order has been made, it appears to the Court that the related maintenance order has ceased to have effect, whether by virtue of the terms of the maintenance order or under paragraph 2 of Schedule 3 to the Order of 1978 or otherwise, the Court may discharge or vary the attachment of earnings order.

(5) Before discharging or varying an order of its own motion under any of the foregoing paragraphs, the Court shall, unless it thinks it unnecessary in the circumstances to do so, give the defendant and the person entitled to payment under the related maintenance order an opportunity of being heard on the question whether the order should be varied or discharged, and for that purpose the Master may give them notice of a date, time and place at which the question will be considered.

[E.r. 18]

Application to determine whether payments are earnings

33.  An application to the High Court under section 77B(1) of the Act of 1969 must be made by summons returnable not less than 4 days after service thereof on the person (other than the applicant) who is also entitled to make the application.

[E.r. 19]

Notification of making an attachment of earnings order

34.—(1) The proper officer of the court shall notify the Enforcement of Judgments Office when an attachment of earnings order has been made.

(2) The notification under paragraph (1) shall specify the amount of earnings attached under the order.

ORDER 106 PROCEEDINGS RELATING TO SOLICITORS : THE SOLICITORS (NORTHERN IRELAND) ORDER 1976

Interpretation

1.  In this Order—

“the Order” means the Solicitors (Northern Ireland) Order 1976(72) and an Article referred to by number means the Article so numbered in that order;

“the Committee” means the Disciplinary Committee appointed under Article 43;

“Law Society” means the Incorporated Law Society of Northern Ireland;

In rules 13 to 18 “appeal” means an appeal under Article 53 to a judge of the High Court against an order made by the Disciplinary Committee.

[E.r. 1]

Jurisdiction under Part V of the Order exercisable by judge in chambers, etc.

2.  Any application to a judge of the High Court under Part V of the Order may be disposed of in chambers.

[E.r. 2]

Power to order solicitor to deliver cash account, etc.

3.—(1) Where the relationship of solicitor and client exists or has existed, the Court may, on the application of the client or his personal representatives, make an order for—

(a) the delivery by the solicitor of a cash account;

(b) the payment or delivery up by the solicitor of money or securities;

(c) the delivery to the plaintiff of a list of the moneys or securities which the solicitor has in his possession or control on behalf of the plaintiff;

(d) the payment into or lodging in court of any such moneys or securities.

(2) An application for an order under this rule must be made by originating summons.

(3) If the defendant alleges that he has a claim for costs, the Court may make such order for the taxation and payment, or securing the payment thereof and the protection of the defendant's lien, if any, as the Court thinks fit.

[E.r. 3]

Appearance to originating summons unnecessary

4.  No appearance need be entered to an originating summons under this Order.

[E.r. 5]

Application under rule 3 and Schedule 1 to the Order

5.—(1) Proceedings in the High Court under rule 3 and Schedule 1 to the Order shall be assigned to the Chancery Division.

(2) The originating summons by which an application for an order under the said rule or Schedule is made must be entitled in the matter of a solicitor or a deceased solicitor, as the case may be, (without naming him) and in the matter of the Order;

(3) Where an order has been made under paragraph 3(1)(b), 9 or 15(1) of the said Schedule an application for an order under paragraph 5, 13(1) or 19 may be made by summons in the proceedings in which the first mentioned order was made.

[E.r. 6]

Defendants to applications under Schedule 1 to the Order

6.  The defendant to an originating summons by which an application for an order under Schedule 1 to the Order is made shall be—

(a) if the application is for an order under paragraph 9 thereof, the solicitor or, as the case may be, every member of the firm, on whose behalf the money in respect of which the order is sought is held;

(b) if the application is for an order under paragraph 5 or 11 thereof, the Law Society;

(c) if the application is for an order under paragraph 3(1)(b) thereof, the person against whom the order is sought;

(d) if the application is for an order under paragraph 15 thereof for the re-direction of postal packets addressed to a solicitor or his firm, the solicitor or, as the case may be, every member of the firm;

(e) if the application is for an order under paragraph 16 thereof, the solicitor or personal representative in substitution for whom the appointment of a new trustee is sought and, if he is a co-trustee, the other trustee or trustees.

[E.r. 7]

Interim order restricting payment out of banking account

7.  At any time after the issue of an originating summons by which an application for an order under paragraph 9 of Schedule 1 to the Order is made, the Court may, on the ex parte application of the plaintiff, make an interim order under that paragraph to have effect until the hearing of the summons and include therein a further order requiring the defendant to show cause at the hearing why an order under that paragraph should not be made.

[E.r. 8]

Adding parties etc.

8.  Without prejudice to its power under Order 15, the Court may, at any stage of proceedings under Schedule 1 to the Orders order any person to be added as a party to the proceedings or to be given notice thereof.

[E.r. 9]

Service of documents

9.—(1) Any document required to be served on the Law Society in proceedings under this Order shall be served by sending it by prepaid post to the Secretary of the Law Society.

(2) Subject to paragraph (1) an originating summons by which an application under Schedule 1 to the Order is made, an order under paragraph 9 of that Schedule or rule 7 and any other document not required to be served personally which is to be served on a defendant to proceedings under the said Schedule shall, unless the Court otherwise directs, be deemed to be properly served by sending it by prepaid post to the defendant at his last known address.

[E.r. 10]

Title, service, etc. of notice of motion

10.—(1) The notice of the originating motion by which an appeal from the Committee is brought must be entitled in the matter of a solicitor (without naming him) and in the matter of the Order.

(2) Unless the Court otherwise orders, the persons to be served with such notice are every party to the proceedings before the Committee and the Law Society;

(3) Order 55, rule 14(2), shall apply in relation to the appeal as if for the period of 21 days therein specified there was substituted a period of 14 days commencing with the day on which a statement of the Committee's findings was filed pursuant to Article 52.

[E.r. 12]

Law Society to produce certain documents

11.—(1) Within 14 days after being served with notice of the originating motion by which an appeal is brought the Law Society must lodge in the Central Office three copies of each of the following documents:—

(a) the order appealed against together with the statement of the Committee's findings required by Article 52;

(b) any document lodged by a party with the Committee's findings which is relevant to a matter in issue on the appeal, and

(c) the transcript of the shorthand note, or as the case may be, the copy taken by the chairman of the Committee of the evidence in the proceedings before them.

(2) At the hearing of the appeal the Court shall direct by whom the costs incurred in complying with paragraph (1) are to be borne and may order them to be paid to the Law Society by one of the parties notwithstanding that the Law Society does not appear at the hearing.

[E.r. 13]

Restriction on requiring security for costs

12.  No person other than an appellant who was the applicant in the proceedings before the Committee shall be ordered to give security for the costs of an appeal.

[E.r. 14]

Power to require statement of Committee

13.  The Court may direct the Committee to furnish the Court with a written statement of their opinion on the case which is the subject-matter of an appeal or on any question arising therein, and where such a direction is given, the secretary of the Committee must, as soon as may be lodge three copies of such statement in the Central Office and at the same time send a copy to each of the parties to the appeal and the Secretary of the Law Society.

[E.r. 15]

Persons entitled to be heard on appeal

14.  A person who has not been served with notice of the originating motion by which an appeal is brought but who desires to be heard in opposition to the appeal shall, if he appears to the Court to be a proper person to be so heard, be entitled to be so heard.

[E.r. 16]

Discontinuance of appeal

15.—(1) An appellant may at any time discontinue his appeal by serving notice of discontinuance on the secretary of the Committee and every other party to the appeal, and if the appeal has been entered, by lodging a copy of the notice in the Central Office.

(2) Where an appeal has been discontinued in accordance with paragraph (1) it shall be treated as having been dismissed with an order for payment by incurred by the Law Society in complying with rule 11(1).

the appellant of the costs of and incidental to the appeal, including any costs

[E.r. 17]

Applications to the Lord Chief Justice

16.  A person who applies to the Lord Chief Justice—

(a) in respect of the refusal of the Law Society to issue a certificate pursuant to Article 5(2);

(b) in respect of the refusal of the Law Society to grant relief to any person seeking to be admitted as a solicitor against the contravention of regulations made under Article 6(1);

(c) under Article 14(2) from the decision of the Council of the Law Society refusing the issue of a practising certificate or as to any terms or conditions subject to which such a certificate is issued;

(d) under Article 16(4) from the decision of the Council of the Law Society not to terminate the suspension of a practising certificate;

(e) under Article 29(2) from the decision of the Council of the Law Society refusing to grant its consent or as to the terms and conditions attached to such consent under paragraph (1) of said Article;

(f) under Article 46(2) to have a solicitor's name replaced on the roll;

shall lodge in the Central Office—

(i) a petition under the hand of the applicant praying for the appropriate relief and setting out the circumstances in which the application is made and the matters of fact upon which the applicant relies in support of his application, and

(ii) an affidavit verifying the facts stated in the petition;

and shall within 2 days after lodging the said document in the Central Office lodge copies thereof at the Law Society's office.

Complaints to the Lord Chief Justice

17.—(1) A complaint to the Lord Chief Justice under Article 20 (which relates to a solicitor practising without a certificate) or under Article 27(1) (which relates to a solicitor acting as agent for an unqualified person) must be made by originating summons grounded on an affidavit setting out the nature of the complaint, the circumstances in which that complaint arose and the matters of fact upon which the complainant relies.

(2) The summons and a copy of the grounding affidavit must be served on the solicitor against whom the complaint is made and on the Law Society at least 14 days before the date of hearing.

ORDER 107 COMMISSIONERS FOR OATHS AND NOTARIES PUBLIC

I. GENERAL

Interpretation

1.  In this Order—

“district” means a petty sessions district within the meaning of section 21 of the Magistrates' Courts Act (Northern Ireland) 1964(73) and any order made thereunder.

“Principal Secretary” means the Principal Secretary Justice to the Lord Chief Justice.

II. COMMISSIONERS FOR OATHS

Application for appointment

2.—(1) An application for appointment as a commissioner for oaths shall be made by sending to the Principal Secretary a memorial in Form No. 50 in Appendix A. together with two certificates in Form No. 51 in Appendix A, signed respectively by—

(a) at least 6 solicitors practising in the district for which the appointment is sought, and

(b) magistrates, traders and residents in such district.

(2) The applicant shall send a copy of his memorial to every commissioner for oaths for such district.

Objection to appointment

3.  A commissioner for oaths for the district to which the application relates may object to the appointment sought in a letter to the Principal Secretary, setting forth the grounds of his objection and, before making any appointment, the Lord Chief Justice shall have regard to any such objection.

Other considerations affecting appointment

4.  The Lord Chief Justice shall in any case, before making any appointment, have regard to—

(a) the population of the district to which the application relates,

(b) the number of commissioners for oaths already in office for such district, and

(c) any other circumstances which he considers to be relevant.

Warrant of appointment

5.—(1) A warrant of appointment as a commissioner for oaths shall be in Form No. 52 in Appendix A hereto, and shall, issue from the Lord Chief Justice's Office.

(2) A person appointed a commissioner for oaths shall not enter upon the duties of his office until his warrant of appointment has issued.

Conditions of appointment

6.  Subject to the right of the Lord Chief Justice to specify the conditions, territory, duration or purpose of an appointment in a particular case, appointment as a commissioner for oaths shall be made in accordance with the following rules in this Part.

Revocation and variation of appointment

7.—(1) The Lord Chief Justice may at any time revoke the appointment of a commissioner for oaths or vary the conditions or limits of any such appointment.

(2) A commissioner for oaths shall be informed forthwith in writing by the Principal Secretary of any revocation or variation of his appointment.

Solicitors and clerks of petty sessions

8.—(1) A solicitor already in office as a commissioner for oaths who does not hold a current practising certificate shall cease to be a commissioner for oaths.

(2) A clerk of petty sessions who is a commissioner for oaths shall, on ceasing to act as clerk of petty sessions for a district specified in his warrant of appointment, cease to be a commissioner for oaths for that district.

(3) A clerk of petty sessions in office as a commissioner for oaths at the time of his appointment to another district may apply to the Lord Chief Justice for the issue of a new warrant of appointment entitling him to act as a commissioner for oaths for that district.

(4) Such application shall be made by letter addressed to the Principal Secretary.

III. NOTARIES PUBLIC

Application for appointment

9.—(1) An application for appointment as a notary public shall be made by sending to the Principal Secretary a memorial in Form No. 53 in Appendix A. together with a certificate in Form No. 54 in Appendix A hereto, signed by magistrates, traders and residents in a district in which the applicant carries on practice.

(2) The applicant shall send a copy of his memorial to every notary public practising in Northern Ireland.

Objection to appointment

10.  A notary public practising in Northern Ireland may object to the appointment sought in letter to the Principal Secretary, setting forth the grounds of his objection and, before making any appointment, the Lord Chief Justice shall have regard to any such objection.

Other considerations affecting appointment

11.  The Lord Chief Justice shall in any case, before making any appointment, have regard to—

(a) the number of notaries public already practising in Northern Ireland, and

(b) any other circumstances which he considers to be relevant.

Warrant of appointment

12.—(1) A warrant of appointment as a notary public shall be in Form No. 55in Appendix A hereto, and shall issue from the Lord Chief Justice's Office.

(2) A person appointed a notary public shall not enter upon the duties of his office until his warrant of appointment has issued.

Conditions of appointment

13.  Subject to the right of the Lord Chief Justice to specify the conditions, territory, duration or purpose of an appointment in a particular case, appointment as a notary public shall be made in accordance with the following rules in this Part.

Qualification

14.  A notary public must be a practising solicitor of at least 6 years' standing.

Extent of appointment

15.—(1) A notary public may exercise his notarial functions anywhere in Northern Ireland.

(2) Notwithstanding any territorial limitation imposed by the terms of his appointment, paragraph (1) shall apply to any notary public who is in practice as such at the date of the commencement of this Order.

Revocation and variation of appointment

16.—(1) The Lord Chief Justice may at any time revoke the appointment of a notary public or vary the conditions or limits of any such appointment.

(2) A notary public shall forthwith be informed in writing by the Principal Secretary of any revocation or his appointment.

Solicitor ceasing to practise

17.  A solicitor who ceases to practise as a solicitor shall cease to be a notary public.

ORDER 108 COURT BONDS

Application

1.  This Order applies to bonds given for the purposes of any proceedings in the High Court or the Court of Appeal.

Persons to whom bonds may be given

2.  Bonds may be given to any master by his official title.

Approved surety companies

3.  Bonds may be given by any of the surety companies listed in the Schedule hereto.

Form of bond

4.  A bond shall be in Form No. 58 in Appendix A with such variations and additions as may be approved by the master to whom it is given.

SCHEDULE APPROVED SURETY COMPANIES

• Bank of Ireland

• Commercial Union Assurance Company Limited

• Eagle Star Insurance Company Limited

• Guardian, Royal Exchange Assurance Limited

• Legal & General Assurance Society Limited

• Norwich Union Fire Insurance Society Limited Phoenix Assurance Company Limited Provincial Insurance Company Limited

• Royal Insurance Company Limited

• Scottish Union and National Insurance Company

• The Century Insurance Company Limited

• The Insurance Corporation of Ireland Limited

• The Liverpool London & Globe Insurance Company Limited

• The London & Lancashire Insurance Company Limited

• The Prudential Assurance Company Limited The Sun Alliance & London Insurance Limited

• The Guarantee Society Limited

ORDER 109

[No Order made]

ORDER 110 THE OFFICIAL SOLICITOR

Duties of Official Solicitor

1.—(1) The Official Solicitor shall conduct such investigations and render such assistance as may be authorised under these Rules or required by any direction of a court for the purpose of assisting the court in the due administration of justice.

(2) The Official Solicitor shall perform such duties as have heretofore been discharged by the General Solicitor for Northern Ireland.

(3) The Official Solicitor may discharge any functions analogous to those performed by the Official Solicitor in England and Wales, which are not the responsibility of some other officer or person in Northern Ireland.

Remuneration of Official Solicitor

2.—(1) The remuneration of the Official Solicitor shall be paid out of such fund to which the proceedings relate or by such parties as the court may by order direct.

(2) Where there is no fund out of which such remuneration may be paid and there is no party to the proceedings against whom an effective order for the payment of such remuneration may be made the court may order such remuneration to be paid by the Lord Chancellor.

(3) Such remuneration shall be ascertained on taxation or measured.

ORDER 111 COMMITTAL UNDER SECTION 88 OF THE JUDGMENTS (ENFORCEMENT) ACT (NORTHERN IRELAND) 1969

Interpretation

1.  In this Order, unless the context otherwise requires:—

“the Act of 1969” means the Judgment (Enforcement) Act (Northern Ireland) 1969(74)

“judgment” means any judgment, order or decree of any division of the High Court (other than an order made in matrimonial proceedings within the meaning of Rule 124 of the Matrimonial Causes Rules (Northern Ireland) 1979(75)) or an instalment order made under Section 31 of the Act of 1969 or of any inferior Court for the payment of money;

“judgment creditor” means a person entitled to enforce a judgment;

“debtor” means a person liable under a judgment;

“judgment summons” means a summons under Part VII of the Act of 1969.

Application

2.  An application for the issue of a judgment summons shall be made by filing an affidavit verifying the amount due under the judgment and showing how the amount is arrived at.

Judgment summons

3.  Every judgment summons shall be in Form No. 56. of Appendix A and shall be served on the debtor personally not less than 10 clear days before the hearing and at the time of service there shall be paid or tendered to the debtor a sum reasonably sufficient to cover his expenses in travelling to and from the court.

Evidence

4.  Evidence at the hearing may be given orally or by affidavit.

Debtor expenses, etc.

5.  Where the debtor appears at the hearing, the travelling expenses paid to him may, if the judge so directs, be allowed as expenses of a witness, but if the debtor appears at the hearing and no order of committal is made, the judge may allow to the debtor, by way of set-off or otherwise, his proper costs, including compensation for loss of time, as upon an attendance by a defendant at a trial in court.

Stay of execution

6.  If the judge makes an order for committal, be may direct its execution to be stayed on terms that the debor pays to the judgment creditor the amount due, together with the costs of the judgment summons, either at a specified time or by instalments, in addition to any sums accruing due under the original judgment.

Removal of stay, etc.

7.  Where an order of committal is stayed on such terms as are mentioned in paragraph 6:—

(a) all payments thereafter made shall be deemed to be made, first, in or towards the discharge of any sums from time to time accruing due under the original judgment and, secondly, in or towards the discharge of the debt in respect of which the judgment summons was issued and the costs of the summons; and

(b) the said order shall not be issued until the judgment creditor has filed an affidavit of default on the part of the debtor.

Application for further stay

8.  Where an order of committal has been made but execution of the order is stayed and the debtor subsequently desires to, apply for a further stay, he shall attend at or write to the Central Office and apply for the stay he requires, stating the reasons for his inability to comply with the order, and the Master shall fix a day for the hearing of the application by the judge and serve notice thereof on the judgment creditor and on the debtor by recorded delivery at least three clear days before the day fixed for the hearing.

Variation etc. of orders

9.  Any order made under this Order may be stayed, suspended, rescinded or varied by a subsequent order.

Service of notice

10.  The judgment creditor shall serve notice personally on the debtor of the terms of any order made under this Order whether or not the debtor has attended the hearing.

Execution of order

11.  An order of committal shall be directed to any police officer or other person as the Court may direct for execution.

Discharge from custody

12.—(1) A debtor taken into custody under an order of committal shall not not be released from custody unless he pays to the police officer or the governor of the prison to which he is committed the full amount of the debt or instalment in respect of which such order was made and the costs of the order or upon receipt by the governor of the certificate of discharge prescribed under paragraph (5);

(2) A police officer or prison governor to whom a sum of money is paid by a debtor in accordance with paragraph (1) shall issue to the debtor a receipt therefor and shall indorse on the order of committal a certificate of the amount he has received and the date thereof and the police officer or prison governor shall sign his name at the foot of the certificate.

(3) Such sum shall be transmitted to the judgment creditor or his solicitor forthwith.

(4) The creditor or his solicitor on receiving the sum transmitted to him shall send a receipt therefor;

(5) The certificate prescribed for the purposes of section 90 of the Act of 1969 shall be in Form No. 57 in Appendix A, signed by the creditor, or his solicitor or a master, that there has been paid to or on account of the creditor by or on behalf of the debtor—

(a) the debt or instalment in respect of which he was imprisoned;

(b) the costs of the order of committal;

and the creditor or his solicitor shall, if the debtor so requires, furnish to the debtor a copy of such certificate.

ORDER 112 APPLICATIONS FOR USE OF BLOOD TESTS IN DETERMINING PATERNITY

Interpretation

1.  In this Order—

“blood samples” and “blood tests” have the meanings assigned to them by Article 13 of the Family Law Reform (Northern Ireland) Order 1977(76);

“direction” means a direction for the use of blood tests under Article 8(1) of that Order;

“the proper officer” means the officer of the court who draws up a direction.

[E.r. 1]

Application for direction

2.—(1) Except with the leave of the Court, an application in any proceedings for a direction shall be made on notice to every party to the proceedings (other than the applicant) and to any other person from whom the direction involves the taking of blood samples.

(2) If the application is made otherwise than at the hearing of the proceedings it shall be made by summons.

(3) Any notice or summons required by this rule to be served on a person who is not a party to the proceedings shall be served on him personally.

[E.r. 2]

Applications involving persons under disability

3.  Where an application is made for a direction in respect of a person (in this rule referred to as a person under disability) who is either—

(a) under 16, or

(b) suffering from a mental disorder within the meaning of the Mental Health Act (Northern Ireland) 1961(77) and incapable of understanding the nature and purpose of blood tests,

the notice of application or summons shall state the name and address of the person having the care and control of the person under disability and shall be served on him instead of on the person under disability.

[E.r. 3]

Joinder of person to be tested

4.  Where an application is made for a direction involving the taking of blood samples from a person who is not a party to the proceedings in which the application is made, the Court may at any time direct that person to be made a party to the proceedings.

[E.r. 4]

Service of direction and adjournment of proceedings

5.  Where the Court gives a direction in any proceedings, the proper officer shall send a copy to every party to the proceedings and to every other person from whom the direction involves the taking of blood samples and, unless otherwise ordered, further consideration of the proceedings shall stand adjourned until the court receives a report pursuant to the direction.

[E.r. 5]

Service of copy of report

6.  On receipt by the court of a report made pursuant to a direction, the proper officer shall send a copy to every party to the proceedings and to every other person from whom the direction involved the taking of blood samples.

[E.r. 6]

ORDER 113 SUMMARY PROCEEDINGS FOR POSSESSION OF LAND

Proceedings to be brought by originating summons

1.—(1) Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.

(2) All such proceedings shall be assigned to the Chancery Division.

[E.r. 1]

Form of originating summons

2.—(1) The originating summons shall be in Form No. 9 in Appendix A and no appearance need be entered to it.

[E.r. 2]

Affidavit in support

3.  The plaintiff shall file in support of the originating summons an affidavit stating—

(a) his interest in the land;

(b) the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises; and

(c) that he does not know the name of any person occupying the land who is not named in the summons.

[E.r. 3]

Service of originating summons

4.—(1) Where any person in occupation of the land is named in the originating summons, the summons together with a copy of the affidavit in support shall be served on him—

(a) in accordance with Order 10, rule 5, or

(b) by leaving a copy of the summons and of the affidavit, or sending them to him, at the premises, or

(c) in such other manner as the Court may direct.

(2) The summons shall, in addition to being served on the named defendants (if any) in accordance with paragraph (1), be served, unless the Court otherwise directs, by—

(a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises, and

(b) if practicable, inserting through the letter-box at the premises a copy of the summons and a copy of the affidavit enclosed in a sealed envelope addressed to “the occupiers”.

(3) Order 28, rule 3, shall not apply to proceedings under this Order.

[E.r. 4]

Application by occupier to be made a party

5.  Without prejudice to Order 15, rules 6 and 10, any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as a defendant.

[E.r. 5]

Order for possession

6.—(1) A final order shall not be made on the originating summons except by a judge in person and shall, except in case of urgency and by leave of the Court, not be made less than 5 clear days after the date of service.

(2) An order for possession in proceedings under this Order shall be in Form No. 33 in Appendix A.

[E.r. 6]

Setting aside order

7.  The judge may, on such terms as he thinks just, set aside or vary any order made in proceedings under this Order.

[E.r. 8]

ORDER 114 REFERENCES TO THE EUROPEAN COURT

Interpretation

1.  In this Order—

“the Court” means the court by which an order is made and includes the Court of Appeal;

“the European Court” means the Court of Justice of the European Communities; and

“order” means an order referring a question to the European Court for a preliminary ruling under Article 177 of the Treaty establishing the European Economic Community, Article 150 of the Treaty establishing the European Atomic Energy Community or Article 41 of the Treaty establishing the European Coal and Steel Community.

[E.r. 1]

Making of order

2.—(1) An order may be made by the Court of its own motion at any stage in a cause or matter, or on application by a party before or at the trial or hearing thereof.

(2) Where an application is made before the trial or hearing, it shall be made by motion.

(3) In the High Court no order shall be made except by a judge in person.

[E.r. 2]

Schedule to order to set out request for ruling

3.  An order shall set out in a schedule the request for the preliminary ruling of the European Court, and the Court may give directions as to the manner and form in which the schedule is to be prepared.

[E.r. 3]

Stay of proceedings pending ruling

4.  The proceedings in which an order is made shall, unless the Court otherwise orders, be stayed until the European Court has given a preliminary ruling on the question referred to it.

[E.r. 4]

Transmission or order to the European Court

5.  When an order has been made, the Master (Queen's Bench and Appeals) shall send a copy thereof to the Registrar of the European Court; but in the case of an order made by the High Court, he shall not do so, unless the Court otherwise orders, until the time for appealing against the order has expired or, if an appeal is entered within that time, until the appeal has been determined or otherwise disposed of.

[E.r. 5]

Appeals from orders made by High Court

6.  An order made by the High Court shall be deemed to be a final decision, and accordingly an appeal against it shall lie to the Court of Appeal without leave; but the period within which a notice of appeal must be served under Order 59, rule 4(1), shall be 21 days.

[E.r. 6]

(1)

1971 c. 59

(2)

1974 c. 43

(3)

1894 c. 60

(4)

1956 c. 46

(5)

1971 c. 36 (N.I.)

(6)

S.I. 1979 No. 1575 (N.I. 14)

(7)

1947 c. 44

(8)

S.R. 1976 No. 374

(9)

1961 c. 15 (N.I.)

(10)

1871 c. 22

(11)

S.I. 1980 No. 397 (N.I. 3)

(12)

S.I. 1977 No. 1251 (N.I. 18)

(13)

1894 c. 60

(14)

S.R. 1979 No. 105

(15)

1937 c. 9 (N.I.)

(16)

1843 c. 96

(17)

1955 c. 11 (N.I.)

(18)

1974 c. 39

(19)

1961 c. 15 (N.I.)

(20)

1886 c. 27

(21)

1891 c. 39

(22)

1970 c. 9

(23)

1975 c. 7

(24)

1896 c. 8

(25)

1958 (N.I.) c. 23

(26)

1943 c. 21

(27)

1870 c. 71

(28)

1874 c. 78

(29)

1882 c. 75

(30)

1913 c. 30

(31)

1958 c. 23 (N.I.)

(32)

1964 c. 33 (N.I.)

(33)

1967 c. 31 (N.I.)

(34)

1969 c. 24 (N.I.)

(35)

1970 c. 4 (N.I.)

(36)

1970 c. 18

(37)

1970 c. 31 (N.I.)

(38)

S.I. 1979 No. 1574 (N.I. 13)

(39)

1879 c. 50

(40)

1883 c. 7

(41)

1969 c. 24 (N.I.)

(42)

1887 c. 57

(43)

1890 c. 24

(44)

S.I. 1979 No. 1575 (N.I. 14)

(45)

1837 c. 26

(46)

1852 c. 24

(47)

1865 c. 72

(48)

1967 c. 35 (N.I.)

(49)

1886 c. 27

(50)

S.I. 1976 No. 582 (N.I. 12)

(51)

1971 c. 31 (N.I.)

(52)

1892 c. 6

(53)

1881 c. 12

(54)

1955 c. 24 (N.I.)

(55)

S.I. 1979 No. 924 (N.I. 8)

(56)

1938 c. 22

(57)

1960 (N.I.) c. 22

(58)

S.I. 1978 No. 1042 (N.I. 12)

(59)

1949 c. 87

(60)

1949 c. 87

(61)

1977 c. 37

(62)

1958 c. 38

(63)

1949 c. 88

(64)

1958 c. 23 (N.I.)

(65)

1920 c. 33

(66)

1950 c. 37

(67)

1958 c. 39

(68)

1966 c. 36 (N.I.)

(69)

1972 c. 18

(70)

1969 c. 30 (N.I)

(71)

S.I. 1978 No. 1045 (N.I. 15)

(72)

S.I. 1976 No. 382 (N.I. 12)

(73)

1964 c. 21 (N.I.)

(74)

1969 c. 30 (N.I.)

(75)

S.R. 1979 No. 89

(76)

S.I. 1977 No. 1250 (N.I. 17)

(77)

1961 c. 15 (N.I.)