County Court Rules (Northern Ireland) 1981

ORDER 21 Discontinuance and payment into and out of court

Discontinuance by plaintiff

1.—(1) If a plaintiff desires to discontinue wholly or in part any proceedings against all or any of the parties thereto, he shall give notice thereof in writing to the party or parties as to whom he desires to discontinue, and pay or tender therewith the costs incurred by the party or parties up to the giving of the notice.

(2) Where the payment or tender of costs is not made at the time of discontinuance of the proceedings or is insufficient, the defendant may apply to the court at which the proceedings are or would have been heard for a decree against the plaintiff for such costs and for the costs of attending the court to obtain such decree, and the judge may make such order as to costs as, having regard to any tender made by the plaintiff or other circumstances, he thinks just.

(3) Where proceedings are not wholly discontinued against a party, costs awarded for the discontinued part of the proceedings shall not without leave of the judge be recovered before the proceedings are disposed of.

(4) Discontinuance under this Rule shall not be a defence to any subsequent proceedings, but if subsequent proceedings are brought for substantially the same cause of action before the payment of the costs of the discontinued proceedings, the judge may stay the proceedings until the costs have been paid.

Payment into court

2.—(1) A defendant in any action may, subject to this Rule, upon notice to the plaintiff in Form 97 lodge in court in accordance with paragraph (2) such sum of money as he thinks sufficient to satisfy the plaintiffs claim, together with an undertaking in writing to pay to the plaintiff such sum in respect of costs and expenses reasonably incurred by the plaintiff up to the date of lodgment as may be agreed upon between the parties, or in default of agreement as may on the application of either party in Form 99, and if necessary after both parties have been heard, be settled by the circuit registrar.

(2) Lodgment in court under paragraph (1) may, subject to paragraphs (3) and (4), be made—

(a) in a remitted action within eight days of the date of the order of remittal or at any time before entry day, whichever is the longer;

(b) in any other action, at any time before the entry day.

(3) Where the hearing of a remitted action is due to take place before or within seven days after the expiration of such a period as is referred to in paragraph (2)(a), the circuit registrar on an application made to him by motion on notice under Order 14 may give a direction—

(a) postponing the hearing to a date later in the sittings; or

(b) adjourning the hearing to the next sittings; and

(c) fixing the period after lodgment within which the plaintiff may serve notice of acceptance;

and such a direction shall not be subject to appeal.

(4) The judge in adjourning a case under Rule 3(2) of Order 5 and ordering sufficient particulars to be furnished may give leave for the making of any lodgment under this Rule, notwithstanding that the period specified in paragraph (2) has expired and where such leave is given the ref ere nee to the entry day in paragraph (2) shall be construed as a reference to the entry day for the sitting to which the hearing is adjourned or to such other day as the judge may specify.

(5) Where under paragraph (1) the circuit registrar has settled a sum for costs and expenses, either party within two days from such settlement may on notice to the other party and the circuit registrar appeal to the judge against such settlement; and on such appeal the judge may affirm or vary the sum so settled.

(6) Money shall be paid into court by lodging it at the county court bank to the credit of the civil bill account in accordance with Order 45 Part I and where any money is so lodged a copy of the notice sent to the plaintiff under paragraph (1) shall be lodged with the chief clerk and a copy shall also be lodged with the bank, such last-mentioned copy being headed with the additional words “Civil Bill Account”.

(7) Money paid into court shall remain in court subject to further order unless the plaintiff elects to take it out as hereinafter provided.

Payment out of court

3.—(1) Where money is paid into court under Rule 2 the plaintiff may (subject to any order made by the judge in granting an adjournment such as is referred to in Rule 2(4)), at any time before the opening day of the sitting at which the action is to be heard or subsequently with the consent of the defendant, or in a remitted action within any period fixed under Rule 2(3)(c), sign and serve on the defendant and lodge with the chief clerk a notice in Form 98 accepting the amount in satisfaction of his claim.

(2) Subject to paragraphs (4) and (5), where money is accepted under paragraph (1) all proceedings in the action as between the plaintiff and the defendant who has paid the money into court shall be stayed, and the money paid into court shall be paid out to the plaintiff without the necessity of any decree or order of the court, and the said defendant shall not be liable to any further costs other than those payable under the undertaking given under Rule 2(1).

(3) Within seven days from the day on which the parties agree on, or the circuit registrar settles, the amount due for costs and expenses under an undertaking given under Rule 2(1), or within seven days from the determination by the judge of any appeal under Rule 2(5), the defendant shall pay that amount to the plaintiff, and in default the chief clerk may, on the application of the plaintiff of which at least seven days' notice has been given to the defendant, issue a decree in Form 100. The costs of the application and the decree shall be in the discretion of the circuit registrar.

(4) Where notice of acceptance under paragraph (1) is served by or on behalf of a plaintiff under legal disability—

(a) the money paid into court shall not be paid out without an order of the judge;

(b) a notice of intention to apply to the judge for approval of such acceptance shall also be served on the defendant and lodged in the Office;

(c) the application to the judge shall be made at the time when the action would, if no notice of acceptance has been served, have been heard by the judge; and

(d) the plaintiff shall be entitled to his costs of the application unless the judge otherwise directs.

(5) A plaintiff in an action for libel or slander who takes money out of court may apply for leave to make in open court a statement in terms approved by the judge in chambers. The chief clerk shall after consultation with the judge fix a time for the hearing of the application by the judge in chambers and shall give at least three days' notice of the hearing to the plaintiff and the defendant and a copy of the proposed statement shall be sent with the notice to the defendant. The application shall be heard by the judge in private. The costs of and in connection with any such application and of the making of the statement in open court shall be in the discretion of the judge.

Costs

4.—(1) Where money has been paid into court by any defendant and the plaintiff does not serve notice of acceptance under Rule 3 and does not obtain a decree against that defendant for an amount, exclusive of costs and expenses, greater than that paid into court, then—

(a) where the plaintiff is not under legal disability, he shall not be entitled to any costs against the defendant and shall be liable for the costs of that defendant based on the amount lodged; or

(b) where the plaintiff is under legal disability, costs shall be in the discretion of the judge.

(2) Where a defendant becomes entitled to costs under this Rule such costs shall be paid to him out of the money paid into court before any payment out of the said money is made to the plaintiff.

Payments into court not to be communicated to judge

5.  Where money has been paid into court under Rule 2 that fact shall not be communicated to the judge before the determination of all questions of liability and the amount of debt or damages.

Decree

6.  Where money has been paid into court by any defendant and the plaintiff does not serve notice of acceptance, a decree in favour of the plaintiff shall be in such one of Forms 101, 102, 103, 104 or 105 as may be appropriate.

Payment into court by defendant to counterclaim

7.  Rules 2 to 6 shall apply mutatis mutandis in relation to payment into court by a defendant to a counterclaim.

Application

8.  Rules 2 to 7 shall not apply—

(a) to an action where the defence is that of tender before action brought; or

(b) to actions in which the title to any corporeal or incorporeal hereditament comes in question.