County Court Rules (Northern Ireland) 1981

ORDER 3 Parties to proceedings

PART I GENERALLY

Who may be joined as plaintiffs

1.—(1) All persons may be joined as plaintiffs in one action in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where, if they brought separate actions, any common question of law or fact would arise but if, on the application of any defendant, it appears that any joinder may embarrass or delay the hearing, the judge may order separate hearings, or make such other order as he thinks fit.

(2) A decree may be given for any plaintiff for the relief to which he is entitled, without any amendment, but any defendant, though unsuccessful, may be awarded any extra costs caused by joining any person who is not found entitled to relief.

Who may be joined as defendants

2.—(1) All persons may be joined as defendants in one action against whom the right to any relief in respect of or arising out of the same transaction or event or series of transactions or events is alleged to exist, whether jointly, severally or in the alternative, where if separate actions were brought any common question of law or fact would arise.

(2) A decree may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment.

(3) Where two or more persons are made defendants, whether as jointly or as severally liable, the plaintiff may have a decree against any one or more of the defendants without prejudice to his right to proceed with the action against any other defendant.

(4) Where a plaintiff proceeds against one or more of several persons jointly liable, the defendant or defendants sued may avail himself or themselves of any set-off or other defence to which he or they would be entitled if all the persons liable were made defendants.

Defendant interested in part of claim

3.  It shall not be necessary that every defendant to an action shall be interested as to all the relief claimed, or as to every cause of action, but the judge may make any order that may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he has no interest.

Persons liable under one contract

4.  The plaintiff may at his option join as parties to the same action all or any one of the persons severally or jointly and severally liable on any one contract.

Where plaintiff in doubt whom to sue

5.  Where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, so that the question which is liable, and to what extent, may be determined between the parties.

Misjoinder or non-joinder

6.—(1) No action or matter shall be affected by reason of the misjoinder or non-joinder of parties, and the judge may in every action or matter deal as justice may require with the real question at issue between the parties actually before him.

(2) Where one or more than one of several persons jointly liable is sued and the other or others so liable and not sued reside out of the jurisdiction or are dead, the fact of the residence of the party or parties not sued being outside the jurisdiction, or the death of such parties, shall appear on the face of the process.

Representative proceedings

7.—(1) Where there are numerous persons having the same interest in one action or matter, one or more of them may be authorised or appointed by the judge before or at the hearing, to sue or defend on behalf of all persons so interested.

(2) Where a defendant desires to defend on behalf of numerous persons having the same interest, he shall, within five days from the day on which the civil bill is served on him, file in the Office an affidavit stating the facts on which he relies and the names, addresses and occupations or, where appropriate, a collective description of the persons on behalf of whom he desires to defend, and serve on the plaintiff a copy of the affidavit together with a notice of the defendant's intention to apply to the judge at or before the hearing of the action or matter for leave so to defend.

(3) If an order is made for the defendant so to defend—

(a) a collective description sufficient to designate the persons to whom the order relates shall be added to the name of the defendant in the books of the court;

(b) notice shall be given to such persons affected by the order and in such manner, in Form 3 or Form 4 or otherwise, as the judge directs;

(c) the hearing of the action or matter may be adjourned to enable any person who is included in the collective description to object to the defendant defending on behalf of all or any of the persons to whom the order relates;

(d) where an objection is made under paragraph (c), the judge shall consider the objection and make such further order as he thinks fit.

Trustees and beneficiaries

8.—(1) Trustees, executors and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives, without joining any person beneficially interested therein, and shall be considered as representing such person, but the judge may, at any stage of the proceedings, order any person to be made a party either in addition to or in lieu of the previously existing parties.

(2) This Rule shall apply to trustees, executors and administrators sued in proceedings to enforce a security by sale or otherwise.

Proceedings Against Estates Act (Northern Ireland) 1971

9.—(1) Where any person against whom an action would have lain has died but the cause of action survives, the action may; if no grant of probate or administration has been made, be brought against the estate of the deceased.

(2) Without prejudice to the generality of paragraph (1), an action brought against “the personal representatives of AB deceased” shall be treated for the purposes of that paragraph as having been brought against his estate.

(3) An action purporting to have been commenced against a defendant who has died shall, if the cause of action survives and no grant of probate or administration has been made, be treated as having been brought against his estate in accordance with paragraph (1).

(4) In any such action as is referred to in paragraph (1) or (3)—

(a) the plaintiff shall apply to the judge for an order appointing a person to represent the deceased's estate for the purpose of the proceedings or, if a grant of probate or administration has been made since the issue of the civil bill, for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person so appointed, or as the case may be against the personal representative, as if he had been substituted for the estate;

(b) the judge at any stage of the proceedings and on such terms as he thinks just and either on his own motion or on application may make any such order as is mentioned in sub-paragraph (a) and allow such amendments (if any) to be made and make such other order as he thinks necessary in order to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon.

(5) Before making an order under paragraph (4) the judge may require notice to be given to any insurer of the deceased who has an interest in the proceedings and to such (if any) of the persons having ail interest in the estate as he thinks fit.

(6) Where no grant of probate or administration has been made, any decree granted in the proceedings shall bind the estate to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceedings.

Actions relating to land

10.  In actions brought under Article 12 of the Order, any person not named as a defendant—

(a) may appear and defend, on sending by post to the chief clerk and to each plaintiff and defendant before the entry day a notice claiming that he has an estate or interest in the land to which the action relates or a part thereof;

(b) may, by leave of the judge, appear and defend at the hearing, and the judge may, if he thinks fit, add the name of such person as a defendant in the action;

and the judge may deal with such person; both as to costs and allowances, as if he had been originally named as a defendant and served with the civil bill.

PART II PERSONS UNDER DISABILITY

Minor

11.  Without prejudice to Article 39(2)(c) of the Order, a minor may sue by his next friend and may defend by his guardian ad litem.

Persons of unsound mind

12.  A person of unsound mind if so found may sue and defend by his committee and if not so found may sue by his next friend and may defend by his guardian ad litem.

Proceedings by next friend

13.  Where—

(a) a minor desires to commence proceedings (other than art action in his own name under Article 39(2)(c) of the Order) or is a claimant in interpleader proceedings; or

(b) proceedings are to be commenced, or a claim made in inter-pleader proceedings, on behalf of a person of sound mind not so found;

the proceedings or claim shall be in the name of the minor or person by his next friend.

Where judge may appoint next friend

14.—(1) Where proceedings in which a next friend is required are commenced without such next friend the judge may—

(a) on the application of any party or of his own motion appoint as next friend any person who consents to act and gives an undertaking in Form 5; or

(b) order the proceedings to be struck out.

(2) Where a next friend is appointed under paragraph (1), Order 4 Rule 2(2) shall apply.

Appointment of guardian ad litem

15.—(1) Where any defendant is a person for whom a guardian ad litem may properly be appointed, the following provisions shall apply—

(a) at any time after the service of the civil bill and before the entry day, a guardian ad litem may be appointed by the chief clerk on application made to him on behalf of that defendant, on affidavit in Form 6 together with a written consent of the proposed guardian to act;

(b) where the appointment is so made, the order shall be in Form 7 and the chief clerk shall send notice to the plaintiff in Form 8;

(c) where a guardian ad litem has not been appointed under sub-paragraph (a) or where the person appointed dies or otherwise becomes unable or unwilling to act, the judge may appoint a person to be guardian ad litem.

(2) A guardian ad litem shall not be personally liable for any costs not occasioned by his own personal negligence or misconduct.

PART III ADMINISTRATION AND EXECUTION OF TRUSTS

Representation of person or class

16.  Where any person or class of persons is beneficially interested in any proceedings for the administration of the estate of a deceased person or for the execution of the trusts or the construction of any instrument, the judge may, whether such person or class has been ascertained or not, appoint any person to represent such person or class, and any order made in the presence of the person so appointed shall be binding on the person or class so represented.

When service unnecessary

17.  Any person beneficially interested in the residuary estate of a deceased person or any one of several cestuis que trustent under any instrument, being entitled to an order for the administration of the estate or for the execution of the trust, may have the same without serving notice of the proceedings on all the other persons so interested.

Judge may order parties to be added

18.  The judge may require any person to be made a party to any proceedings, may give the conduct of the proceedings to such person as he thinks fit, and may make such order in any particular case as he thinks just for placing the defendant on the record on the same footing in regard to costs, as other parties having a common interest with him in the matter in question.

When notice of order to be served

19.—(1) Where in any proceedings for—

(a) the administration of the estate of a deceased person; or

(b) the execution of the trusts of any instrument; or

(c) the sale of any property;

an order has been made, the judge may direct that any persons interested in the estate or under the trust or in the property shall be served with notice of the order.

(2) Any person so served shall be bound by the proceedings as if he had originally been made a party and shall be at liberty to attend the proceedings and may at the next sitting of the court after service, or by leave of the judge at any subsequent sitting, apply to the judge to discharge, vary or add to the order.

Service of notice of an order

20.—(1) Subject to paragraph (2) the notice of an order mentioned in Rule 19 shall be served and endorsed in like manner as a civil bill.

(2) Where it appears to the judge that service of the notice cannot be effected or ought to be dispensed with, he may wholly dispense with service or may order substituted service.

(3) Where the order is for accounts and inquiries and service of the notice on any person is dispensed with, such person shall, unless the judge otherwise orders, be bound by the order.

Where no legal representative

21.  If, in any proceedings, it appears to the judge that any deceased person who was interested in the matter in question has no legal personal representative, the judge may—

(a) proceed in the absence of any person representing the estate of the deceased person; or

(b) may appoint some proper person to represent the estate for the purpose of the proceedings;

on such notice to such persons, if any, as the judge may think fit, either specifically or generally by public advertisement, and the order made, and any order consequent thereon, shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased had been a party to the proceedings.

Only representative to appear on claim of any person not a party

22.—(1) In any proceedings for the administration of the estate of a deceased person, no party other than the representative shall, except by leave of the judge, be entitled to appear either in court or in chambers on the claim of any person not a party to the proceedings against the estate of the deceased person in respect of any debt or liability.

(2) The judge may direct or give liberty to any other party to the proceedings to appear either in addition to or in place of the representative.

PART IV CHANGE OF PARTIES

Proceedings on change of plaintiffs or defendant's title before decree

23.—(1) Where, after the commencement of any action and before final decree, there is any assignment, creation, change, transmission or devolution of the interest, estate or title of any plaintiff, the judge may, upon the ex parte application of the person to or upon whom such interest, estate or title has come or devolved or of any party to the action, grounded upon an affidavit setting out the facts of such assignment, creation, change, transmission or devolution, make an order that such person be substituted for or made a joint plaintiff with the plaintiff named in the original civil bill and the judge may, before making such order, require such notice of the application to be served as he thinks fit.

(2) Where, after the commencement of any action, there is any assignment, creation, change, transmission or devolution of the interest, estate or title of any defendant, the judge may, on an ex parte application grounded upon an affidavit setting forth the facts of such assignment, creation, change, transmission or devolution, make an order that the person to or upon whom such interest, estate or title has come or devolved, be substituted for or made a joint defendant with the defendant named in the original civil bill, and the judge may, before making such order, require such notice of the application to be served as he thinks fit.

Where person entitled to proceed on death of party fails to do so

24.  Where a plaintiff or defendant in an action or matter dies and the cause of action survives but the person entitled to proceed fails to proceed, the defendant (or the person against whom proceedings may be continued) may apply to the judge for an order directing the plaintiff (or person entitled to proceed) to proceed within such time as may be ordered and in default the action or matter may be struck out, and in a case where it is the plaintiff who has died, execution may be had for any costs awarded to the defendant as if Order 40 Rule 2 applied.

Alteration of records on change of parties

25.  Where a party is substituted or added the books of the court shall be altered and all subsequent proceedings shall be carried on accordingly.