County Court Rules (Northern Ireland) 1981

ORDER 14 Interlocutory applications

General procedure

1.—(1) Where by any enactment or by direction of the court any application in the course of an action or matter is expressly or by implication authorised to be made to the court or to the judge or to the circuit registrar or chief clerk, the following provisions shall apply—

(a) the application shall be made either in or out of court and either ex parte or on notice in accordance with the terms of the relevant enactment or direction and in the absence of any express provision to the contrary the application shall be made on notice;

(b) where made on notice—

(i) the notice shall be in writing and shall be served on the opposite party and filed in the Office before the beginning of a period of two days ending on the day of hearing of the application unless the judge or circuit registrar or, as the case may be, the chief clerk dispenses with notice or gives leave for shorter notice; and

(ii) the party serving the notice shall be responsible for ascertaining that the judge or circuit registrar or, as the case may be, the chief clerk will be available to hear the application on the day, at the time and in the place for which notice is served;

(c) an affidavit shall not be necessary unless the judge or circuit registrar or, as the case may be, the chief clerk otherwise directs;

(d) upon the hearing of the application the judge or circuit registrar or, as the case may be, the chief clerk may make such order as he considers just;

(e) where the application is made to the circuit registrar or chief clerk, he may, if in doubt as to the proper order to be made, refer the application to the judge forthwith or at the next convenient opportunity and the judge may hear the application and make such order as he considers just;

(f) where the circuit registrar or chief clerk has made an order to which this Order applies, any party who is dissatisfied therewith may apply to the judge on notice to vary or rescind the order and on the hearing of the application the judge may confirm, vary or rescind the order and may make such order as he considers just. This sub-paragraph shall not apply to an order or direction under Rule 2(3) of Order 21.

(2) The jurisdiction of the court to hear and determine any application in the course of an action or matter may, by direction or with the consent of the judge, be exercised by the circuit registrar unless there is a provision to the contrary in any enactment.

Power to impose terms

2.  The Judge or, where the application is authorised to be made to the circuit registrar, the circuit registrar may, as a condition of granting any application, impose such terms and conditions as he thinks fit and, without prejudice to the generality of the foregoing provisions, may make orders requiring any party to—

(a) give security; or

(b) give an undertaking; or

(c) pay money into court; or

(d) give a power of re-entry;

and may make such order as to costs as he considers just.

Directions

3.  In any action or matter the judge or, where the application is authorised to be made to the circuit registrar, the circuit registrar may at any time on the application on notice of any party or of his own motion give such directions as he thinks proper.

Adjournment

4.—(1) The judge or, where the circuit registrar hears the original application, the circuit registrar may at any time and from time to time upon application or of his own motion, adjourn the hearing of any proceedings or step in the proceedings either generally with liberty to re-enter or for such period not exceeding twelve months as will in his opinion best meet the ends of justice.

(2) Notice of any such adjournment shall be given by the chief clerk to all parties and persons interested who are not present when the order is made.

(3) If the hearing of the action or matter is adjourned generally, any party may apply to have a day fixed for the heating and the chief clerk shall fix a day for the hearing and give notice to all the parties in Form 62.

(4) If no application is made under the last foregoing paragraph within 12 months after the day on which the hearing of the action or matter was adjourned generally, the chief clerk may give notice to all parties in Form 279, and unless any party applies within 14 days after receipt of the notice to have a day fixed for the hearing or to have the hearing again adjourned and the application is granted, the action or matter shall be struck out.

When defendant entitled to ask for security for costs

5.—(1) Where a defendant neither resides nor carries on business within the division of the court in which an action or matter is commenced, he may apply in Form 63 to the circuit registrar, in accordance with Rule 1, for an order directing the plaintiff to deposit in court a sum of money as security for his costs.

(2) The application shall be sent to the chief clerk by post or otherwise—

(a) where the defendant returns the notice sent with a default or summary civil bill, with that notice;

(b) in any other case within eight days of the service of the civil bill on him;

together with an affidavit showing a defence on the merits and stating the grounds of defence.

(3) If the circuit registrar refuses the application, the chief clerk shall send notice to the defendant in Form 64.

(4) If the circuit registrar grants the application, he shall fix the amount of the security and the chief clerk shall send to the plaintiff a notice in Form 65.

(5) Where a deposit is ordered—

(a) if the deposit is duly made, the chief clerk shall send notice to the defendant in Form 66;

(b) if the deposit is not duly made, the chief clerk shall send notice to the parties in Form 67, and the action or matter shall be struck out, and the defendant shall be entitled to recover the costs incurred by him before the receipt of Form 67, and if such costs are not paid within fourteen days after demand made therefor, the judge may on the application of the defendant give a decree for the amount of such costs together with the costs of the application to him:

Provided that if the deposit is not made in due time, but is made later the judge may order the action or matter to be reinstated, and the chief clerk shall send notice thereof to the defendant and inform him on what day the action or matter will be heard.

Application for interim injunction, etc.

6.  Where any party or intending party desires, before the hearing, an immediate order—

(a) in the nature of an injunction; or

(b) for the appointment of a receiver; or

(c) for taking any accounts; or

(d) for making any inquiries;

he may apply to the judge on affidavit setting forth the facts rendering the order immediately necessary and the judge may make such order as he thinks fit.

Recovery of goods where lien claimed

7.—(1) Where in any action the plaintiff claims the recovery of specific property other than land and the defendant admits the title of the plaintiff but claims to retain the property by virtue of a lien or otherwise as security for the payment of a sum of money; the judge may order that the plaintiff be at liberty to pay into court, to abide the event of the action, the sum of money in respect of which the defendant claims to retain the property and such further sum (if any) for interest and costs as the judge may think fit, and may order that upon such payment into court the defendant shall return the property to the plaintiff:

(2) This Rule shall with the necessary modifications apply to a counter-claim as it applies to a claim.

Preservation, etc., of subject matter

8.  Where a prima facie case of liability under any contract is established, and there is alleged, as a matter of defence, a right to be relieved wholly or partially from that liability, the judge may make an order for the preservation or interim custody of the subject-matter of the action or may order that the amount in dispute be brought into court or otherwise secured.

Order for detention, etc.

9.—(1) The judge may, upon the application of any party to an action or matter, make any order for the detention, preservation, inspection, surveying, measuring, weighing or analysing of any property, document or thing, being the subject of the action or matter or as to which any question may arise therein, and may authorise any person to enter upon or into any land or building in the possession of arty party to the action or matter, and authorise any samples to be taken, or any observation, plan, photograph or model to be made, or copy of a document or experiment to be made, which may be necessary or expedient for the purpose of obtaining full information or evidence.

(2) Where an order is made for inspecting, surveying, measuring, weighing or analysing any property or making any copy or experiment, or taking any sample, or making any plan, photograph or model, by any person named in the order, the order may authorise the circuit registrar to examine upon oath and take the deposition of the person so named as to the result, accuracy or fairness of what he has done in pursuance of the order, and may also empower any party to give in evidence the deposition so taken.

Order for sale of perishables, etc.

10.  The judge may, upon the application of any party to an action or matter, order the sale by a person to be named in the order, of any subject matter of the proceedings which—

(a) is of a perishable nature; or

(b) incurs charges for food or keep; or

(c) ought for any other sufficient reason to be sold at once.

Preparation of order, etc.

11.—(1) A draft of an order under Rule 6, 7, 8, 9 or 10 shall be prepared by the party making the application and shall be settled, signed and sealed by the chief clerk or, where the order is made by the judge of his own motion, the chief clerk shall prepare, sign and seal the order.

(2) The order when signed and sealed shall be filed by the chief clerk who shall issue a certified copy to the applicant or his solicitor for service.