S.I. No. 15/1986 — The Rules of the Superior Courts

S.I. No. 15/1986:

THE RULES OF THE SUPERIOR COURTS

THE RULES OF THE SUPERIOR COURTS

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act, 1936 , section 67, and reconstituted pursuant to the provisions of the Courts of Justice Act, 1953 , section 15, by virtue of the powers conferred upon us by the Courts of Justice Act, 1924 , section 36, and the Courts of Justice Act, 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act, 1961 , section 48), and the Courts (Supplemental Provisions) Act, 1961 , section 14, and of all other powers enabling us in this behalf, do hereby make the annexed Rules of Court.

Dated this 19 day of December 1985.

I concur in the making of the annexed Rules of Court.

Dated this 17th day of January 1986.

MICHAEL NOONAN,

Aire Dli agus Cirt.

THE RULES OF THE SUPERIOR COURTS

The following Rules (which may be cited as "The Rules of the Superior Courts" or, in the abbreviated form, "R.S.C.") shall come into operation on the 1st day of October, 1986, and shall on and after that date apply, where appropriate, to all proceedings in causes or matters whether then pending or commenced thereafter.

As and from the said date the Orders and Rules specified in Appendix Z hereto shall stand annulled.

ORDER 1. COMMENCEMENT OF PROCEEDINGS.

1. Save as otherwise provided in these Rules, civil proceedings in the High Court shall be instituted by a summons of the Court to be called an originating summons.

2. An originating summons for the commencement of plenary proceedings with pleadings and hearing on oral evidence (in these Rules called a plenary summons) shall (save in admiralty proceedings) be in the Form No. 1 in Appendix A Part I.

3. An originating summons for the commencement of summary proceedings without pleadings and to be heard on affidavit with or without oral evidence (in these Rules called a summary summons) shall, in the case of any claim mentioned in Order 2, rule 1, be in the Form No. 2 in Appendix A, Part I.

4. An originating summons for the commencement of summary proceedings without pleadings and to be heard on affidavit with or without oral evidence (in these Rules called a special summons) shall, in the case of any claim mentioned in Order 3 (other than in admiralty proceedings) be in the Form No. 3 in Appendix A, Part I.

5. Any costs occasioned by the use of any forms of summonses or of indorsements thereon, other or more prolix than the forms in these Rules prescribed shall be borne by the party using the same, unless the Court shall otherwise direct.

6. In all proceedings (other than to take a minor into wardship) commenced by originating summons, procedure by plenary summons shall be obligatory except where procedure by summary summons or by special summons is required or authorised by these Rules.

ORDER 2. PROCEDURE BY SUMMARY SUMMONS.

1. Procedure by summary summons may be adopted in the following classes of claims:—

(1) In all actions where the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising—

( a ) upon a contract, express or implied (as, for instance, on a bill of exchange, promissory note, or cheque, or other simple contract debt); or

( b ) on a bond or contract under seal for payment of a liquidated amount of money; or

( c ) on a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

( d ) on a guarantee, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand only; or

( e ) on a trust.

(2) In actions where a landlord seeks to recover possession of land, with or without a claim for rent or mesne profits—

( a ) against a tenant whose term has expired or has been duly determined by notice to quit; or

( b ) for non-payment of rent.

(3) Claims in which the plaintiff in the first instance desires to have an account taken.

2. Procedure by summary summons may be adopted by consent of all parties in the case of a claim not coming within any of the classes in rule 1.

ORDER 3. PROCEDURE BY SPECIAL SUMMONS.

Procedure by special summons may be adopted in the following classes of claims:—

(1) The administration of the real or personal estate of a deceased person, or the administration of the trust of any deed or instrument save where there is a charge of wilful default or breach of trust.

(2) The determination of any question affecting the rights or interests of any person claiming to be creditor, devisee, legatee, next-of-kin or heir-at-law of a deceased person, or cestui que trust under the trust of any deed or instrument, or claiming by assignment or otherwise under any such person.

(3) The payment into Court of any money in the hands of executors, administrators or trustees.

(4) A direction to any executors, or administrators or trustees to do or abstain from doing any particular act in their character as such executors or administrators or trustees (including the furnishing and vouching of accounts).

(5) The approval of any sale, purchase, compromise, or other transaction in connection with the administration of any estate or trust.

(6) The determination of any question arising in the administration of any estate or trust or the ascertainment of any class of creditors, legatees, devisees, next-of-kin, or others.

(7) The determination of any question of construction arising under any deed, will, or other written instrument, and a declaration of the rights of the persons interested.

(8) The determination, under the Finance Act, 1894, section 14 (2), of a dispute as to the proportion of estate duty to be borne by any property or person.

(9) Any relief under the Settled Land Acts, 1882 to 1890, or the Conveyancing Acts, 1881 to 1911.

(10) Where no proceeding is pending by reason whereof the infant is a ward of Court, an application as to any of the following matters:—

( a ) sections 12, 16 and 17 of the Infants Property Act, 1830, as extended to Ireland by the Infants Property (Ireland) Act, 1835; section 4 of the Leasing Powers Act for Religious Worship in Ireland, 1855, as extended by the Glebe Lands (Ireland) Act, 1875, and the Leases for Schools (Ireland) Act, 1881;

( b ) the settlement of any property of an infant on marriage under the Infants Settlements Act, 1855, as extended to Ireland by the Infants Settlements (Ireland) Act, 1860;

( c ) the guardianship, care and maintenance or advancement of any infant.

(11) The appointment of a trustee or a new trustee with or without a vesting or other consequential order; or a vesting order or other order consequential on the appointment of a new trustee, whether the appointment is made by the Court or out of Court; or a vesting or other consequential order in any case where a judgment or order has been given or made for the sale, conveyance or transfer of any land or stock; or a vesting order under the Trustee Act, 1893, section 39; or an order directing a person to convey.

(12) The determination of any question under the Vendor and Purchaser Act, 1874, section 9.

(13) Any relief under the Married Women's Status Act, 1957 section 12.

(14) Any relief under the Trustee Act, 1893, sections 42 or 44.

(15) Sale, delivery of possession by a mortgagor, or redemption; reconveyance, or delivery of possession by a mortgagee.

(16) Any relief in respect of funds lodged in Court pursuant to the Land Clauses Consolidation Act, 1845, section 69.

(17) An interpleader order.

(18) Applications in connection with the lodgment in Court of any funds, the investment of any funds lodged in Court, or the payment out of any funds lodged in Court, whether pursuant to the provisions of any statute or otherwise, where there is no pending proceedings in respect thereof and no other procedure prescribed or required by these Rules.

(19) Applications for the taxation and delivery of bills of costs and for the delivery by any solicitor of deeds, documents and papers where there is no pending proceeding in which the application may be made.

(20) Any other proceeding in which procedure by special summons is required or authorised by these Rules.

(21) Any other proceeding which is required or authorised by statute to be brought in a summary manner and for which no other procedure is prescribed by these Rules.

(22) Such other matters as the Court may think fit to dispose of by special summons.

ORDER 4. I. INDORSEMENT OF CLAIM.

1. An indorsement of claim shall be made on every originating summons before it is issued.

2. The indorsement of claim on a plenary summons shall be entitled "GENERAL INDORSEMENT OF CLAIM" and there shall be an indorsement of the relief claimed and the grounds thereof expressed in general terms in such one of the forms in Appendix B, Part II, as shall be applicable to the case, or, if none be found applicable, then such other similarly concise form as the nature of the case may require.

3. In the indorsement required by rule 2 it shall not be essential to set forth the precise ground of complaint or the precise remedy or relief to which the plaintiff considers himself entitled.

4. The indorsement of claim on a summary summons and on a special summons shall be entitled "SPECIAL INDORSEMENT OF CLAIM," and shall state specifically and with all necessary particulars the relief claimed and the grounds thereof. The indorsement of claim on a summary summons or a special summons shall be in such one of the forms in Appendix B, Part III, as shall be applicable to the case, or, if none be found applicable, then such other similarly concise form as the nature of the case may require.

5. (1) Whenever a claim indorsed on a summary summons is for a liquidated sum only, the indorsement, besides stating the amount claimed in respect of the demand, shall state the amount claimed for costs, and shall further state that on payment of such amounts for demand and costs within six days after service, or in the case of a summons not for service within the jurisdiction, within the time limited for appearance, further proceedings will be stayed.

(2) The amount claimed for costs shall be:—

(3) The statement shall be in the form incorporated in the Form No. 2 in Appendix A, Part I. In any case within this rule the defendant may, notwithstanding payment, have the costs taxed, and if more than one-sixth of the amount paid shall be disallowed the amount disallowed shall be refunded and the plaintiff's solicitor shall pay the costs of taxation.

6. In any proceeding for the recovery of land the summons shall contain the description of the property sought to be recovered with reasonable certainty, and shall state the county and county district or the city or town and parish, in which the same is situated. No error or omission in respect of any of the matters aforesaid shall render such summons void or irregular but may be ground for an application to the Court for particulars of the property claimed.

7. In any proceeding for the recovery of land any tenant, under-tenant, or other person in actual possession of the property sought to be recovered, or any part thereof, may be named as defendant, and the summons shall be directed to such tenant, under-tenant, or other person, with the addition of the words "and all persons concerned."

8. In all actions to which the Land Law (Ireland) Act, 1896, section 12, applies, for the recovery of a holding agricultural or pastoral, or partly agricultural and partly pastoral, in its character, or of lands including such a holding, for non-payment of rent, the summons shall be specially indorsed with a statement of the plaintiff's claim. Such special indorsement shall state that:—

( a ) there is no person in occupation as tenant otherwise than as immediate tenant to the plaintiff of the premises sought to be recovered or any part thereof, and the plaintiff claims to recover clear possession of the same premises, and to have the judgment in the action executed against all persons in occupation of the same; or

( b ) there is or are a person or persons in occupation as tenant or tenants otherwise than as immediate tenant or tenants to the plaintiff of the premises sought to be recovered or some part thereof, setting out the name of every such person.

9. If the plaintiff sues or the defendant is sued in a representative capacity, the indorsement shall show in manner appearing in such of the forms in Appendix B, Part I, as shall be applicable to the case, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued.

10. In probate actions the indorsement shall show whether the plaintiff claims as creditor, executor, administrator, residuary legatee, legatee, next-of-kin, heir-at-law, devisee, or in any and what other capacity.

11. In all cases in which the plaintiff, in the first instance, desires to have an account taken, the summons shall be indorsed with the claim that such account be taken.

12. In actions by a moneylender or an assignee or by the personal representative or personal representatives of a deceased moneylender for the recovery of money lent by a moneylender or any interest thereon or the enforcement of any agreement or security relating to any such money or interest, the indorsement on the summons shall state, in addition to any other particulars, the fact that the plaintiff is a licensed moneylender, or (in an action by an assignee or by the personal representative or personal representatives of a deceased moneylender) that the original assignor, or the testator or intestate, as the case may be, was at the time of the loan a licensed moneylender, and if the action be commenced by summary summons or special summons, shall also state, in addition to any other particulars—

( a ) the date on which the loan was made;

( b ) the amount actually lent to the borrower;

( c ) the rate per cent. per annum of interest charged;

( d ) the date when the contract for repayment was made;

( e ) the fact that a note or memorandum of the contract was made, and was signed by the borrower;

( f ) the date when a copy of the note or memorandum was delivered or sent to the borrower;

( g ) the amount repaid;

( h ) the amount due but unpaid;

( i ) the date upon which such unpaid sum or sums became due;

( j ) the amount of interest accrued due and unpaid on every such sum.

13. In actions to recover a debt or liquidated demand in money arising under a hire-purchase agreement or credit-sale agreement (as defined by the Hire-Purchase Act, 1946 ) or any contract of guarantee relating to such an agreement, the special indorsement of claim on a summary summons shall state, in addition to any other particulars, that the requirements specified in section 3 or section 4 (as the case may be) of the Hire-Purchase Act, 1946 , have been complied with.

II. INDORSEMENT OF ADDRESS.

14. The solicitor of a plaintiff shall indorse upon the summons and notice in lieu of service of a summons, the address and occupation or description of the plaintiff and also his own name or that of his firm and the registered place of business where summonses, notices, pleadings, petitions, orders, warrants and other documents may be left for him.

15. A plaintiff suing in person shall indorse upon the summons and notice in lieu of service of a summons his occupation or description and an address for service within the jurisdiction, where summonses, notices, pleadings, petitions, orders, warrants and other documents may be left for him.

16. In all cases where proceedings are commenced otherwise than by summons, rules 14 and 15 shall apply to the document by which such proceedings originate as if it were a summons.

ORDER 5. ISSUE OF SUMMONSES AND PETITIONS.

1. Save as otherwise provided in these Rules, every originating summons shall be issued out of the Central Office.

2. Originating summonses shall be prepared by the plaintiff or his solicitor, and shall be written or printed, or partly written and partly printed, on paper of the same description as by these Rules directed in the case of proceedings directed to be printed.

3. Save as hereinafter otherwise provided, no originating summons shall, at the time of issue, be assigned to any Judge.

4. Subject to the power of transfer, the following originating summonses shall, at the time of issue, be assigned to such Judge or Judges as the President of the High Court may from time to time assign to hear such originating summonses:—

(1) Every special summons relating to any particular class of claim.

(2) Every originating summons relating to any of the matters following:—

(a) the administration of the estates of deceased persons;

(b) the dissolution of partnership or the taking of partnership or other accounts;

(c) the redemption or foreclosure of mortgages;

(d) the raising of portions or other charges on land;

(e) the sale and distribution of the proceeds of property subject to any lien or charge;

(f) the execution of trusts, charitable or private;

(g) the rectification or setting aside or cancellation of deeds or other written instruments;

(h) the specific performance of contracts between vendors and purchasers of land, including contracts for leases, and also the specific performance of any other contracts in respect of which the Court would decree performance;

(i) the partition or sale of real estates, including chattels real;

(j) any other matters formerly within the exclusive jurisdiction of the former Court of Chancery or the former Chancery Division of the former Supreme Court of Judicature or any Judge or Judges thereof (other than (i) the wardship of infants and the care of infants' estates or (ii) matters formerly within the exclusive cognizance of the former Landed Estates Court).

(3) Every originating summons relating to such other matter or matters as Rules of Court may from time to time specify.

5. In the case of any originating summons within rule 4, it shall be the duty of the officer issuing the summons to mark and assign the summons for the Judge assigned as mentioned in the said rule or (if more than one Judge has been so assigned) for the Judges so assigned in rotation. Any case of doubt or difficulty shall be determined by the Master and the assignment or non-assignment of any summons at the time of issue shall be without prejudice to the power of the Master to vary or alter such assignment or non-assignment.

6. Where an originating summons has been so assigned under rules 4 and 5 to a particular Judge or has (whether assigned or not) been heard by a particular Judge, every subsequent summons, notice of motion, or petition, relating to the same matter, or so connected therewith as to be conveniently dealt with by the same Judge, shall whenever practicable be marked by the proper officer with the name of such Judge, and the party or solicitor presenting such summons, notice of motion, or petition, shall, if there be to his knowledge such relation or connection, so certify. Such certificate shall be in the Form No. 5 in Appendix A, Part I; and such certificate shall be countersigned by the Registrar of the Judge to whom such originating summons had been assigned or by whom such originating summons had been heard as the case may be.

7. There shall be books in the Central Office to be called Cause Books in which all proceedings commenced by originating summons, issued out of the Central Office, shall be entered. Every summons shall be entered consecutively in order of issue and shall be distinguished by the date of the year and a number in consecutive order commencing on the first day of January in each year, with or without a distinguishing letter or other sign; and the said date and number, together with the distinguishing letter or sign (if any) shall constitute the record number of the proceeding.

8. Every originating summons shall bear date of the day of issue and shall be authenticated in the name of the Chief Justice, or if the office of Chief Justice be vacant, in the name of the President of the High Court and shall be sealed with the seal of the High Court.

9. Every originating summons shall be sealed and marked with the record number by the proper officer, and shall thereupon be deemed to be issued. No originating summons shall be served until the same shall have been so sealed and marked.

10. One duplicate or more of every originating summons shall be so sealed and marked on the application of the plaintiff or his solicitor.

11. The plaintiff or other party or his solicitor shall, on presenting an originating summons for sealing, leave with the proper officer a copy, written or printed, or partly written and partly printed, on paper of the description aforesaid, of such summons and all the indorsements thereon, and such copy shall be signed by the solicitor leaving the same, or by the plaintiff himself if he sues in person.

12. The officer receiving the copy summons pursuant to rule 11 shall cause the same to be marked with the record number and to be filed and shall also cause an entry of the particulars thereof to be made in the appropriate Cause Book as hereinbefore provided.

13. The issue of a summons in probate proceedings shall be preceded by the filing of an affidavit made by the plaintiff or one of the plaintiffs in verification of the indorsement on the summons. On issuing the summons the plaintiff shall, if he has not already so done, lodge a caveat in the Probate Office entitled in the estate of the deceased person.

14. No summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of the Court.

15. Save as otherwise provided in these Rules, every petition to the Court shall be presented by leaving it with the proper officer at the Central Office. Subject thereto, the foregoing provisions of this Order shall apply to a petition in the same manner as they apply to an originating summons, and references in this Order to "originating summons" and "plaintiff" shall be construed as including references to "petition" and "petitioner" respectively.

16. At the foot of every petition presented to the Court, and of every copy thereof, a statement shall be made of the persons, if any, intended to be served therewith, and if no person is intended to be served a statement to that effect shall be made at the foot of the petition and of every copy thereof.

17. Unless the Court gives leave to the contrary there must be at least two clear days between the service and the day for hearing of a petition.

ORDER 6. CONCURRENT SUMMONSES.

1. The plaintiff in any proceedings may, at the time of, or at any time during twelve months after the issuing of the originating summons, issue one or more concurrent summons or summonses, each concurrent summons to bear the same date of issue as the original summons, and to be marked with a seal bearing the word "concurrent" and the date of issue of the concurrent summons; and such seal shall be impressed upon the summons by the proper officer; provided always, that such concurrent summons or summonses shall only be in force for the period during which the original summons in such proceedings shall be in force.

2. A summons for service within the jurisdiction may be issued and marked as a concurrent summons with one for service, or of which notice in lieu of service is to be given, out of the jurisdiction; and a summons for service, or of which notice in lieu of service is to be given, out of the jurisdiction may be issued and marked as a concurrent summons with one for service within the jurisdiction.

ORDER 7. SOLICITORS.

1. Every solicitor whose name shall be indorsed on any summons or other originating document shall, on demand in writing made by or on behalf of any defendant who has been served with the same or with notice thereof, or has appeared thereto, declare forthwith in writing whether such summons or other originating document has been issued by him or with his authority or privity; and if such solicitor shall declare that the summons or other originating document was not issued by him or with his authority or privity all proceedings upon the same shall be stayed, and no further proceedings shall be taken thereon without leave of the Court.

2. (1) A party suing or defending by a solicitor shall, save in any matrimonial cause or matter, be at liberty to change his solicitor or to discharge his solicitor and sue or defend in person, and any party suing or defending in person shall be at liberty to appoint a solicitor, in any cause or matter, without an order for that purpose, upon notice of such change, discharge, or appointment being filed in the Central Office, but until such notice is so filed and a copy thereof served as hereinafter provided, no such change, discharge, or appointment shall be deemed to have taken effect.

(2) The party giving such notice shall serve a copy thereof upon every other party to the proceedings (not being a party in default as to entry of appearance).

(3) Every such notice shall state a registered place of business or address for service as prescribed by Order 4.

(4) The party giving any such notice may perform the duties prescribed by this rule either in person or (except where he intends to act in person) through his new solicitor.

3. (1) Where a solicitor who has acted for a party in any proceedings has died or become bankrupt or cannot be found or has failed to take out a practising certificate or has been struck off the roll of solicitors or has ceased to act for the party, and the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the provisions of rule 2, any other party to the proceedings or (where the solicitor has ceased to act) the solicitor may, on notice to be served on the first-mentioned party, personally, or by letter addressed to his last-known place of residence, unless the Court otherwise directs, apply to the Court for an order declaring that the solicitor has ceased to be the solicitor acting for the first-mentioned party in the proceedings, and the Court may make an order accordingly.

(2) Where such order shall have been made the party or the solicitor who applied therefor shall forthwith give a notice to the same effect as the order, and the provisions of rule 2 as to filing and service shall apply thereto with the necessary modifications and subject to any direction in such order as to service on the first-mentioned party.

(3) Where the party or solicitor who applied for such order shall have complied with the said provisions then, if the first-mentioned party does not appoint another solicitor or give such an address for service as is required of a party acting in person, and comply with the provisions of rule 2, any documents in respect of which personal service is not requisite may be served on the said party by being filed with the proper officer.

(4) Where the said order is made on the application of a solicitor, such solicitor shall, subject to the provisions of rules 2 and 3 be considered the solicitor of the party to the final conclusion of the proceedings unless and until he has complied with the provisions of paragraph (2) of this rule.

4. An order under the provisions of rule 3 may be made on an ex parte application unless the Court shall otherwise direct.

5. Any order made under the provisions of rule 3 shall not affect the rights of the solicitor and the party as between themselves.

ORDER 8. RENEWAL OF SUMMONS.

1. No original summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may apply before the expiration of twelve months to the Master for leave to renew the summons. After the expiration of twelve months, an application to extend time for leave to renew the summons shall be made to the Court. The Court or the Master, as the case may be, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for six months from the date of such renewal inclusive, and so from time to time during the currency of the renewed summons. The summons shall in such case be renewed by being stamped with the date of the day, month and year of such renewal; such stamp to be provided and kept for that purpose in the Central Office and to be impressed upon the summons by the proper officer, upon delivery to him by the plaintiff or his solicitor of a memorandum in the Form No. 4 in Appendix A, Part I; and a summons so renewed shall remain in force and be available to prevent the operation of any statute whereby a time for the commencement of the action may be limited and for all other purposes from the date of the issuing of the original summons.

2. In any case where a summons has been renewed on an ex parte application, any defendant shall be at liberty before entering an appearance to serve notice of motion to set aside such order.

3. The production of a summons purporting to be marked with a stamp showing the same to have been renewed in the matter aforesaid, shall be sufficient evidence of its having been so renewed and of the commencement of the action as of the first date of such renewed summons for all purposes.

4. Where a summons, of which the production is necessary, has been destroyed or lost, the Court upon being satisfied of the destruction or loss, and of the correctness of a copy thereof, may order that such copy shall be sealed and served in lieu of the original summons.

ORDER 9. SERVICE OF SUMMONS.

I. Mode of service.

1. No service of a summons shall be required when the defendant, by his solicitor, accepts service, and undertakes in writing to enter an appearance.

2. Service of any summons on the defendant shall, except in the cases in the following rules of this Order specified, be effected by personal service if it be reasonably practicable. Where it shall appear by affidavit that such defendant is personally within the jurisdiction and that due and reasonable diligence has been exercised in endeavouring to effect such personal service, service of such summons may be effected by delivering a copy thereof at the defendant's house or place of residence, or at his or her office, warehouse, counting house, shop, factory, or place of business, to the wife, husband, child, father, mother, brother, or sister of the defendant, or to any servant or clerk of the defendant (the person to whom such copy shall be delivered being of the age of sixteen years or upwards) and showing to such person the original or duplicate original of such summons.

3. Personal service shall be effected by delivering a copy of the summons to the defendant in person, and showing him the original or duplicate original.

II. On particular defendants.

4. When husband and wife are both defendants in any proceedings, they shall both be served unless the Court shall otherwise order.

5. When an infant is defendant in any proceedings service on his father or mother or guardian, or, if none, then upon the person with whom the infant resides or under whose care he is, shall, unless the Court otherwise orders, be deemed good service on the infant; provided that the Court may order that service made or to be made on the infant shall be deemed good service.

6. When a lunatic or person of unsound mind not so found by inquisition is a defendant in any proceedings, service on the committee of the lunatic, or on the person with whom the person of unsound mind resides or under whose care he is, shall, unless the Court otherwise orders, be deemed good service on such defendant.

7. In the absence of any statutory provision regulating service, every summons issued against a corporation aggregate may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer, or secretary of such corporation; and every summons issued against the inhabitants of a county district or other like district may be served on any officer of the Gárda Síochána not below the rank of superintendent stationed in the county in which such district is situate and every summons issued against the inhabitants of any county or any city or town, or the inhabitants of any franchise, liberty, city, town, or place not being part of the county district or other like district on some peace officer thereof: provided always that in all such cases a sufficient notice of the issuing of the summons shall be given in Iris Oifigiúil and in one of the local newspapers of the county, city, or district in which the defendant or defendants or the officer or other person to be served shall reside, the times for appearing to run in such cases from the day of the publication of such notice in Iris Oifigiúil or such newspaper, whichever shall be the latest; and where, by any statute, provision is made for service of any proceedings upon any corporation, or upon any society or fellowship, or any body or number of persons, whether corporate or incorporate, every summons may be served in the manner so provided.

III.In particular actions.

8. In an action brought for recovery of land for non-payment of rent or for overholding, it shall not be necessary to serve the summons upon any person other than the person or persons in the actual possession of the land or any part thereof, as tenant or under-tenant.

9. In other actions for the recovery of land, it shall be necessary to serve every person in actual possession, or in receipt of the rents and profits, of the lands or any part thereof, unless the Court shall otherwise direct.

10. In actions for the recovery of land service of a summons may be effected either by personal service on the person to be served at any place within the jurisdiction or by delivering a copy of such summons to the wife, husband, child, father, mother, brother, or sister, of such person, at her house, or office, or place of business (the person with whom such copy shall be left being of the age of sixteen years or upwards), and showing to such person the original or duplicate original of such summons, and such service as last aforesaid may be effected whether the person to be served is within the jurisdiction or not.

11. Service of a summons in an action to recover land may, in the case of vacant possession, when it cannot otherwise be effected, be made by posting a copy of the summons upon the door of the dwellinghouse or other conspicuous part of the property; provided, however, that in such case before any judgment by default shall be given, the Court shall be satisfied that there was no person in actual possession or in receipt of the rents and profits on whom other service might have been effected.

IV.General.

12. The person serving a summons shall, within three days at most after service, indorse on the summons the day and date of the service thereof; and every affidavit of service of such summons shall mention the date on which such indorsement was made.

13. Every affidavit of service of a summons in actions for the recovery of land for non-payment of rent, or for overholding, shall state that the deponent does not know of any person, other than those who have been served, who is in actual possession of the land sought to be recovered or any part thereof, as tenant or under-tenant.

14. Every affidavit of service of a summons in other actions for recovery of land, shall state that the deponent does not know of and does not believe that there is any person, other than those who have been served, in the actual possession or in receipt of the rents and profits of the land sought to be recovered, or any part thereof, and the said statement shall be verified by the affidavit of the plaintiff or of one of the plaintiffs, or of the solicitor for the plaintiff.

15. In any case the Court may, upon just grounds, declare the service actually effected sufficient.

16. This Order, so far as practicable, shall apply to the originating document in proceedings not commenced by summons and to notice in lieu of service.

ORDER 10. SUBSTITUTED SERVICE.

1. If it be made to appear to the Court that the plaintiff is from any cause unable to effect prompt personal service, or such other service as is prescribed by these Rules, the Court may make an order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise.

2. Every application to the Court for an order for substituted or other service, or for the substitution for service of notice, shall be supported by an affidavit setting forth the grounds upon which the application is made.

3. Whenever any such order shall be made a copy thereof shall be served along with the summons or the notice as the case may be.

ORDER 11. SERVICE OUT OF THE JURISDICTION.

1. Service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the Court whenever—

( a ) the whole subject matter of the action is land situate within the jurisdiction (with or without rents or profits), or the perpetuation of testimony relating to land within the jurisdiction; or

( b ) any act, deed, will, contract, obligation, or liability affecting land or hereditaments situate within the jurisdiction, is sought to be construed, rectified, set aside, or enforced in the action, or

( c ) any relief is sought against any person domiciled or ordinarily resident within the jurisdiction; or

( d ) the action is for the administration of the personal estate of any deceased person, who, at the time of his death, was domiciled within the jurisdiction, or for the execution (as to property situate within the jurisdiction) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of Ireland; or

( e ) the action is one brought to enforce, rescind, dissolve, annul, or otherwise affect a contract, or to recover damages or other relief for or in respect of the breach of a contract—

(i) made within the jurisdiction; or

(ii) made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction; or

(iii) by its terms or by implication to be governed by Irish Law, or is one brought in respect of a breach committed within the jurisdiction of a contract wherever made, even though such breach was preceded or accompanied by a breach out of the jurisdiction which rendered impossible the performance of the part of the contract which ought to have been performed within the jurisdiction; or

( f ) the action is founded on a tort committed within the jurisdiction; or

( g ) any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect thereof; or

( h ) any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction; or

( i ) the proceeding relates to an infant or person of unsound mind domiciled in, or a citizen of Ireland; or

( j ) the proceeding is an interpleader proceeding relating to property within the jurisdiction; or

( k ) the proceeding relates to an arbitration held or to be held within the jurisdiction; or

( l ) the proceeding relates to the enforcement of an award under Part III of the Arbitration Act, 1980 or of the pecuniary obligations imposed by an award under Part IV of the Arbitration Act, 1980 ; or

( m ) the proceeding is by a mortgagee or mortgagor in relation to a mortgage of personal property situate within the jurisdiction and seeks relief of the nature or kind following, that is to say sale, delivery of possession by the mortgagor, redemption, reconveyance, delivery of possession by the mortgagee; but does not seek (unless and except so far as permissible under sub-head (e) of this rule) any personal judgment or order for payment of any moneys due under the mortgage.

(In this sub-head the expression "personal property situate within the jurisdiction" means personal property which, on the death of an owner thereof intestate, would form the subject matter for the grant of letters of administration to his estate out of the Probate Office; the expression "mortgage" means a mortgage charge or lien of any description; the expression "mortgagee" means a party for the time being entitled to or interested in a mortgage; and the expression "mortgagor" means a party for the time being entitled to or interested in property subject to a mortgage); or

( n ) the proceeding is brought under the provisions relating to carriage by air of the Air-Navigation and Transport Act, 1936, or

( o ) the proceeding relates to a ship registered or required to be registered under the Mercantile Marine Act, 1955 , or any share or interest therein; or

( p ) the proceeding relates to the ownership of a trade mark registered or sought to be registered in the Industrial and Commercial Property Registration Office.

2. Where leave is asked from the Court to serve a summons or notice thereof under rule 1, the Court to whom such application shall be made shall have regard to the amount or value of the claim or property affected and to the comparative cost and convenience of proceedings in Ireland, or in the place of the defendant's residence, and particularly in cases of small demands where the defendant is resident in England, Scotland, or Northern Ireland, to the powers and jurisdiction, under the statutes establishing or regulating them, or of the courts of limited or local jurisdiction in England, Scotland or Northern Ireland respectively.

3. (1) The parties to any contract may agree—

( a ) that the Court shall have jurisdiction to entertain any proceeding in respect of such contract, and also, or in the alternative;

( b ) that service of any summons in any such proceeding may be effected at any place within or out of the jurisdiction on any party or on any person on behalf of any party or in any manner specified or indicated in such contract.

(2) In any such case, notwithstanding anything contained in these Rules, service of any such summons at the place (if any) or on the party or on the person (if any) or in the manner (if any) specified or indicated in the contract shall be deemed to be good and effective service wherever the parties are resident. If no place, or mode, or person be so specified or indicated, service out of the jurisdiction of such summons may be ordered.

4. In probate actions service out of the jurisdiction of a summons or notice of a summons may be allowed by the Court.

5. Every application for leave to serve a summons or notice of a summons on a defendant out of the jurisdiction shall be supported by affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a citizen of Ireland or not, and where leave is asked to serve a summons or notice thereof under rule 1 stating the particulars necessary for enabling the Court to exercise a due discretion in the manner in rule 2 specified; and no leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.

6. Such application shall be made before the issue of the summons, and the affidavit to ground the same shall, when no proceeding is pending, be entitled as between the parties to the intended proceeding and "In the Matter of the Courts of Justice Acts, 1924 to 1961, and the Courts (Supplemental Provisions) Acts, 1961 to 1981."

7. Any order giving leave to effect service or give notice out of the jurisdiction shall limit a time after such service or notice, within which the person to be served is to enter an appearance, such time to depend on the place or country where or within which the summons is to be served, or the notice given, and such leave may be given by the same order by which leave is given to issue the summons for service out of the jurisdiction or of which notice is to be given out of the jurisdiction.

8. Where the defendant is not, or is not not known or believed to be, a citizen of Ireland, notice of the summons, and not the summons itself, shall be served upon him.

9. Subject to the provisions of this Order, notice in lieu of service shall be given in the manner in which summonses are served.

10. Whenever an order shall be made giving leave to serve a summons or notice thereof on a defendant out of the jurisdiction, a copy of such order shall be served along with the summons or notice as the case may be.

11. This Order shall apply, so far as practicable and applicable, to proceedings whether instituted by originating summons or in some other manner, and to any order or notice in any such proceedings. Where the person to be served is not a citizen of Ireland, a copy of the originating document (other than an originating summons) or of the order or notice shall be served instead of the original, together with an intimation in writing that (as the case may be) a proceeding or process in the form of the copy has been issued or otherwise launched or an order in the terms of the copy made.

12. Nothing herein contained shall in any way prejudice or affect any practice or power of the Court under which when lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected, the Court may, without affecting to exercise jurisdiction over any person out of the jurisdiction, cause such person to be informed of the nature or existence of the proceedings with a view to such person having an opportunity of claiming, opposing or otherwise intervening.

ORDER 12. APPEARANCE.

1. Appearances shall be entered in the Central Office, Four Courts, Dublin, except in the case of lunacy and minor matters, when the appearance shall be entered in the Office of Wards of Court, Four Courts, Dublin or except as otherwise provided in these Rules.

2. (1) An appearance to any plenary summons, or summary summons shall be entered within eight days after the service of the summons, exclusive of the day of service, unless the Court shall otherwise order.

(2) A defendant in proceedings commenced by special summons may enter an appearance thereto at any time, but shall not, without the leave of the Court, be entitled to be heard in such proceedings unless he has entered an appearance.

3. A defendant shall enter his appearance to an originating summons by delivering to the proper officer a memorandum in writing dated on the day of its delivery and containing the name of the defendant's solicitor, or stating that the defendant defends in person. He shall at the same time deliver to the officer a duplicate of the memorandum which the officer shall mark with an official stamp, showing the date on which the appearance is entered and then return it to the person entering the appearance, and the duplicate memorandum so marked shall be a certificate that the appearance was entered on the day indicated by the official stamp.

4. In the case of a defendant desiring to enter an appearance in person, he may in lieu of delivering to the proper officer the memorandum of appearance and the duplicate thereof, enter the appearance through the post by sending to the proper officer by pre-paid registered letter:—

( a ) a memorandum of appearance and two duplicates thereof both duly filled up;

( b ) a postal order for the prescribed fee payable on entering an appearance;

( c ) two envelopes each sufficiently stamped, one addressed to the plaintiff's solicitor (or to the plaintiff if he sues in person) at the address for service, and the other addressed to the defendant entering the appearance.

On receipt of the foregoing the proper officer shall forthwith enter the appearance as of the date when he received the memorandum, and shall mark the duplicates with the official stamp showing the date on which the appearance is entered, and shall post one duplicate to the plaintiff or his solicitor and the other duplicate to the defendant.

5. (1) A defendant shall, on the day he enters an appearance to an originating summons, give notice of his appearance to the plaintiff's solicitor, or, if the plaintiff sues in person, to the plaintiff himself by serving the marked duplicate memorandum. This may be served in the ordinary way at the address for service, or by pre-paid letter directed to that address, and posted on the day of entering appearance in due course of post. In the case of a plenary summons, the memorandum shall include a notice stating whether the defendant requires a statement of claim or not.

(2) This rule shall not apply to a defendant entering an appearance through the post under rule 4, save in so far as therein provided.

6. The solicitor of a defendant shall state in the memorandum of appearance his registered place of business.

7. A defendant appearing in person shall state in the memorandum of appearance an address for service within the jurisdiction where summonses, notices, pleadings, petitions, orders, warrants, and other documents may be left for him.

8. If the memorandum does not contain such address as is prescribed by this Order it shall not be received; and if any such address shall be illusory or fictitious, the appearance may be set aside by the Court or the Master on the application of the plaintiff.

9. The memorandum of appearance shall be in the Form No. 1 in Appendix A, Part II.

10. Upon receipt of a memorandum of appearance entered by any party or person pursuant to the provisions of this Order, the proper officer shall forthwith enter the appearance in the appropriate Cause Book.

11. If two or more defendants in the same action shall appear by the same solicitor and at the same time, the names of all the defendants so appearing shall be inserted in one memorandum.

12. A solicitor not entering an appearance in pursuance of his written undertaking so to do shall be liable to an attachment.

13. A defendant, save in actions for the recovery of land, may appear at any time before judgment. If he appear at any time after the time limited for appearance, he shall not, unless the Court shall otherwise order, be entitled to any further time for delivering his defence or for any other purpose than if he had appeared within the time limited for appearance.

14. In probate actions any person not named in the summons may intervene and appear in the action on filing an affidavit in the Central Office showing how he is interested in the estate of the deceased.

15. No person served with a summons in a proceeding for the recovery of land shall be permitted to appear after the time allowed for appearance without leave of the Court.

16. Any person served with a summons for the recovery of land although not named as a defendant therein, shall be at liberty to defend the proceeding and to enter an appearance according to the foregoing rules of this Order, entitled in the proceeding against the party named in the summons as defendant, and shall forthwith give notice of such appearance to the plaintiff's solicitor or to the plaintiff if he sues in person, and shall in all subsequent proceedings be named as a party defendant to the proceeding.

17. An appearance entered without leave in a proceeding for the recovery of land after the time allowed for appearance has expired shall be void.

18. Any person not named as a defendant in a summons for the recovery of land and not served therewith may by leave of the Court appear and defend, on filing an affidavit showing that he is in possession of the land either by himself or by his tenant.

19. Any person appearing to defend a proceeding for the recovery of land as a landlord, in respect of property whereof he is in possession only by his tenant, shall state in his appearance that he appears as landlord.

20. Where a person not named as defendant in any summons for the recovery of land, and not served therewith has obtained leave of the Court to appear and defend, he shall enter an appearance according to the foregoing rules of this Order, entitled in the proceeding against the party named in the summons as defendant, and shall forthwith give notice of such appearance to the plaintiff's solicitor, or to the plaintiff if he sues in person, and shall in all subsequent proceedings be named as a party defendant to the proceeding.

21. Any person appearing to a summons for the recovery of land, save where the proceeding is brought for non-payment of rent, shall be at liberty to limit his defence to a part or an undivided share only of the property mentioned in the summons, describing that part or share with reasonable certainty in his memorandum of appearance, which shall be in the Form No. 2 in Appendix A, Part II. An appearance, where the defence is not limited as above mentioned, shall be deemed an appearance to defend for the whole.

22. Where any person entering an appearance in an action for the recovery of a holding or of lands including a holding, agricultural or pastoral, or partly agricultural and partly pastoral, in its character, for non-payment of rent, is in occupation of such holding as sub-tenant thereof, and merely claims to be entitled under the Land Law (Ireland) Act, 1896 (59 & 60 Vic., c. 47) section 12, notwithstanding judgment for the plaintiff in the action to retain possession of such holding as immediate tenant to the plaintiff, and not to have such judgment executed against him, he shall be at liberty to limit his memorandum of appearance accordingly. The memorandum shall state whether such person so defends in respect of all the premises sought to be recovered or part only thereof, and shall in the latter case describe such part with reasonable certainty. It shall also state full particulars of his sub-tenancy, including the rent payable in respect thereof, the gale days, and the amount then due for arrears of such rent up to the last gale day, and the name of his immediate landlord. An appearance where the memorandum is not limited as above-mentioned, or where it does not contain the statements prescribed by this rule, shall be deemed to be an appearance to defend generally, and in respect of all the premises sought to be recovered.

23. Where an appearance is limited in accordance with rule 22 the plaintiff shall be at liberty by notice to confess the right, under the Land Law (Ireland) Act, 1896, section 12 of the person so limiting his appearance, notwithstanding judgment for the plaintiff in the action, to retain possession as immediate tenant to the plaintiff of the holding described in his memorandum of appearance. Such notice shall be served and filed in the Central Office within twenty-one days after appearance. The person whose right is so confessed shall, where the special indorsement on the summons does not deny such right, abide his own costs of appearance, unless the Court shall otherwise direct.

24. Save as in rule 22 mentioned, a defence to a summons for the recovery of land for non-payment of rent shall be a defence for all the lands and premises claimed by the indorsement thereon; and in case a defendant shall desire to take defence for part only of the lands and premises, upon the ground that such part is not included in the tenancy sought to be evicted, he shall make a special application to the Court for that purpose. Applications under this rule shall be made on notice grounded on affidavit, and may be made before appearance or within four days after appearance.

25. A party who has obtained an order under rule 24 shall describe the part of the lands to which the defence is limited either in the appearance or in a notice as prescribed in rule 21.

26. A defendant before appearing shall be at liberty to serve notice of motion to set aside the service upon him of the summons or of notice of the summons, or to discharge the order authorising such service.

27. In probate actions the plaintiff and defendant, within eight days of the entry of appearance on the part of the defendant, are respectively to file their affidavits as to scripts in the Central Office, whether they have or have not any script in their possession. Such affidavit shall be in the Form No. 22 in Appendix C.

28. Every script which has at any time been made, by or under the direction of the testator, whether will, codicil, draft of a will or codicil, or written instructions for the same, of which the deponent has any knowledge, information, or belief, is to be specified in his affidavit of scripts, and every script in the custody or under the control of the party making the affidavit is to be annexed thereto, and deposited therewith in the Central Office.

29. No party to the proceeding, nor his solicitor, shall be at liberty, except by leave of the Court, to inspect the affidavit as to scripts, or the scripts annexed thereto, filed by any party to the cause, until his own affidavit as to scripts shall have been filed.

ORDER 13. DEFAULT OF APPEARANCE.

1. Where no appearance has been entered to a summons for a defendant who is an infant or a person of unsound mind not so found by inquisition, the plaintiff shall, before taking any further step in the proceeding against the defendant, apply to the Master for an order that some proper person be assigned guardian of such defendant by whom he may appear and defend the proceeding. But no such order shall be made unless it appears on the hearing of such application that the summons was duly served, and that notice of such application was, after the expiration of the time allowed for appearance, and at least six clear days before the day in such notice named for hearing the application, served upon or left at the dwellinghouse of the person with whom or under whose care such defendant was at the time of serving such summons and also (in the case of such defendant being an infant not residing with or under the care of his father or guardian) served upon or left at the dwellinghouse of the father or guardian, if any, of such infant, unless the Master at the time of hearing such application shall dispense with such last mentioned service.

2. Where any defendant fails to appear to a summons, and the plaintiff is desirous of proceeding upon default of appearance under any of the following rules of this Order or Order 37, rule 12, he shall, before taking such proceeding upon default, file an affidavit of service of the summons or notice in lieu of service, as the case may be.

3. Where an originating summons (whether plenary or summary) is indorsed with a claim for a liquidated demand, and the defendant fails, or all the defendants, if more than one, fail to appear thereto, the plaintiff may enter final judgment in the Central Office for such sum as is mentioned in the affidavit required by rule 18 not exceeding the sum indorsed on the summons, together with interest (if any) to the date of the judgment and costs. Provided that in proceedings by a money-lender, or the personal representative or representatives of a money-lender, or an assignee, for the recovery of money lent by the money-lender, or the enforcement of any agreement or security relating to any such money, judgment shall not be entered in default of appearance unless the leave of the Master or the Court as the case may be, has been obtained in accordance with the provisions of rule 14. Provided also that in actions to recover a debt or liquidated demand arising under a hire-purchase agreement or credit-sale agreement (as defined by the Hire-Purchase Act, 1946 ) or any contract of guarantee relating to such an agreement, judgment shall not be entered in default of appearance unless the leave of the Master or the Court, as the case may be, has been obtained in accordance with the provisions of rule 15.

4. In case no appearance has been entered in a proceeding for the recovery of land within the time limited for appearance, or if an appearance be entered but the defence be limited to part of or to an undivided share in the land only, the plaintiff shall, subject to the provisions of rule 5, be at liberty, whether claims in respect of mesne profits, arrears of rent, or double rent, or damages for breach of contract, or wrong or injury to the premises claimed, have or have not been indorsed on the summons, to enter judgment in the Central Office that the person whose title is asserted in the summons shall recover possession of the land, or of the part or undivided share thereof to which the defence does not apply. Such judgment shall not contain any award of costs, but same shall be without prejudice to the plaintiff's right to have the costs taxed by the proper officer, and to proceed by action for recovery of such mesne profits, arrears of rent or double rent, damages, and costs, or any of them. Provided that if the proceeding be for recovery of land for non-payment of rent, no judgment shall be entered under this rule until an affidavit has been filed made by the landlord, his agent, receiver, or clerk, stating that there was at the commencement of the proceeding at least one year's rent due over and above all just and fair allowances.

5. In case no appearance has been entered in a proceeding for the recovery of land within the time limited for appearance, or if an appearance be entered but the defence be limited to part of or to an undivided share in the land only, the plaintiff, in lieu of proceeding under rule 4, shall, as to the claim for recovery of such land or such part or undivided share thereof, as the case may be, and the claim (if any) in respect of mesne profits, arrears of rent, or double rent, or damages for breach of contract, or wrong or injury to the premises claimed, be at liberty (in the case of a proceeding commenced by plenary summons) to proceed under rule 6 or (in the case of a proceeding commenced by summary summons) to set the summons down for hearing on such day as the Master may fix, and in such latter case, such judgment may be given, on the hearing of the summons, as the Master, in a case within his jurisdiction, or the Court may consider the plaintiff to be entitled to.

6. In case of default of appearance by any defendant (other than such defendant as is in rule 1 mentioned) to a plenary summons, the plaintiff shall, except in the case of a claim otherwise provided for in any of the preceding rules of this Order, deliver a statement of claim by filing the same in the Central Office and thereupon may apply to the Court for judgment in the proceeding in default of appearance, and (if necessary) ascertainment of any damages to which the plaintiff may be entitled, with a jury in case any party is entitled to a jury and requires such, but otherwise without a jury, and in the latter case the Court may fix the amount of such damages itself on evidence by affidavit or otherwise, or may refer the matter to the Master to determine.

7. Where a summons is indorsed with a claim for the delivery of specific goods, either alone or with any other claim, and the defendant fails to appear, the plaintiff may, if he require the specific delivery of such goods, apply to the Court for an order for judgment for the return of the goods detained without giving the defendant the option of retaining such goods upon paying the value thereof and for the ascertainment, in such manner as the Court may direct, of the goods in respect of the non-delivery of which the plaintiff is entitled to recover and which remain undelivered, and, upon the same being so ascertained an order of delivery may issue for the same.

8. Where an originating summons (whether plenary or summary) is indorsed with a claim for a liquidated demand and there are several defendants, of whom one or more appear, to the summons, and another or others of them fail to appear, the plaintiff may enter final judgment as in rule 3 mentioned against such as have not appeared, and may issue execution upon such judgment, without prejudice to his right to proceed against such of the defendants as have appeared.

9. Where there are several defendants to such a plenary summons as is mentioned in rule 6 and one or more of such defendants appear to such summons, and another or others of them fail to appear, the plaintiff may proceed under the said rule against the defendant or defendants so failing to appear and the application for judgment thereunder shall be heard and the damages (if any) to which the plaintiff may be entitled ascertained, as against such defendant or defendants, at the same time as the trial of the proceeding or issue therein against the other defendant or defendants, unless the Court shall otherwise direct.

10. Where a plenary summons is indorsed with a claim for a liquidated demand together with another claim or other claims and any defendant fails to appear thereto, the plaintiff may enter final judgment for the liquidated demand, together with interest (if any) and costs as provided in the preceding rules of this Order, against the defendant or defendants failing to appear and may proceed, as to the other claim or claims, as provided in such of the said rules as may be applicable.

11. Where final judgment is entered pursuant to any of the preceding rules of this Order, it shall be lawful for the Court to set aside or vary such judgment upon such terms as may be just.

12. Where an originating summons is indorsed with a claim on any bond, covenant, or agreement within the Common Law Procedure Amendment Act (Ireland), 1853, section 145, and the defendant fails to appear thereto, no statement of claim shall be delivered and the plaintiff may, without any suggestion of breaches, apply by motion to the Court for leave to enter judgment for such sum as may seem just, and on such application the Court may order judgment to be entered accordingly or may direct such inquiry, or trial of issues, as may appear to be necessary for the ascertainment of the plaintiff's demand, and if the sum ascertained to be due does not amount to the sum mentioned in such bond, covenant, or agreement, the plaintiff, his executors or administrators, may in the event of any subsequent breach, from time to time, apply to the Court, and the Court may thereupon so far as the sum mentioned in such bond, covenant, or agreement, or the remainder thereof, will reach, make such further order or direct such further inquiry or trial to the effect aforesaid, as may be just.

13. In any case in which the plaintiff is not entitled to enter final judgment in the Central Office under any of the preceding rules of this Order, and in which the defendant fails, or all the defendants if more than one, fail to appear, but in which, by reason of payment, satisfaction, abatement of nuisance, or for any other reason, it is unnecessary for the plaintiff to proceed, he may by leave of the Master, to be obtained by motion on notice, enter judgment for costs. Provided that such notice shall be filed and shall be served in the manner in which service of the summons has been effected, or in such other manner as the Master may direct.

14. (1) In proceedings brought by a moneylender or the personal representative or representatives of a moneylender or an assignee for the recovery of money lent by the moneylender or the enforcement of any agreement or security relating to any such money, an application for leave to enter judgment in default of appearance shall be made by notice returnable before the Master not less than four clear days after service of the notice.

(2) Such notice shall not be issued until the time limited for entering an appearance has expired and a proper affidavit of service of the summons has been filed. The notice may be served personally or by registered post, addressed to the defendant at his last known place of address.

(3) At the hearing of the application, whether the defendant appears or not, the Master or the Court, as the case may be—

( a ) may exercise the powers of the Court under the Moneylenders Act, 1900 section 1 (1), as amended by the Moneylenders Act, 1933, section 17, and

( b ) if satisfied by affidavit or otherwise that the notice has been duly served, may give leave to enter final judgment for the whole or part of the claim, and

( c ) as regards any part of the claim as to which leave to enter final judgment is refused, may give any such directions or make any such order as might have been given or made upon the hearing of the summons or of a motion for judgment, as the case might be, if the defendant had entered an appearance, upon such terms as to notice to the defendant and otherwise as may be thought just.

15. In actions to recover a debt or liquidated demand arising under a hire-purchase agreement or credit-sale agreement or any contract of guarantee relating to such an agreement, an application for leave to enter judgment in default of appearance shall be made in the same manner as is prescribed in paragraphs (1) and (2) of rule 14, and judgment shall not be entered until an affidavit shall have been filed stating that the requirements specified in section 3 or section 4 (as the case may be) of the Hire Purchase Act, 1946 , as amended by sections 21 and 22 of the Hire Purchase Act, 1960, have been complied with.

16. In any case coming before him under any of the preceding rules of this Order, the Master may, in lieu of giving or refusing leave to enter judgment, place the summons in the Court list for hearing.

17. In all proceedings not by the rules of this Order otherwise specially provided for, in case the party served with the summons does not appear within the time limited for appearance, upon the filing by the plaintiff of a proper affidavit of service and, where appropriate, of a statement of claim, the proceeding may proceed as if such party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 37.

18. Before judgment by default shall be entered for any liquidated demand under this Order an affidavit shall be filed specifying the sum then actually due.

19. If, in any case in which a plaintiff is entitled to enter final judgment in the Central Office under any of the preceding rules of this Order, the plaintiff claims interest on the whole or any part of the sum of money for which he is entitled to enter such judgment between the date on which the cause of action accrued and the date of judgment under section 22 of the Courts Act, 1981 , the plaintiff may apply to the Court ex parte for an order for judgment inclusive of such interest. The said application shall be supported by an affidavit sworn by the plaintiff or some other person who can positively swear to the facts specifying the sum then actually due and the facts relied on in support of the claim for interest.

ORDER 14. ACTIONS BY AND AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN.

1. Any two or more persons claiming or being liable as co-partners and carrying on business within the jurisdiction, may sue or be sued in the name of the respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action; and any party to an action may in such case apply to the Court for a statement of the names of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the Court may direct.

2. When plaintiffs sue in the name of their firm, they or their solicitor shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the action is brought. If the plaintiffs or their solicitor shall fail to comply with such demand, all proceedings in the action may, upon an application for that purpose, be stayed upon such terms as the Court may direct. When the names of the partners are so declared, the action shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as the plaintiffs in the summons; but all proceedings shall nevertheless continue in the name of the firm.

3. Where persons are sued as partners in the name of their firm under rule 1 the summons shall be served either upon any one or more of the partners or at the principal place within the jurisdiction, of the business of the partnership, upon any person having at the time of service control or management of the partnership business there; and, subject to these Rules, such service shall be deemed good service upon the firm so sued, whether any of the members thereof are out of the jurisdiction or not, and no leave to issue a summons against them shall be necessary: provided that in the case of a co-partnership which has been dissolved to the knowledge of the plaintiff before the commencement of the action, the summons shall be served upon every person within the jurisdiction sought to be made liable.

4. Where a summons is issued against a firm, and is served as directed by rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service whether he is served as a partner or as a person having the control or management of the partnership, business, or in both characters. In default of such notice, the person served shall be deemed to be served as a partner.

5. Where persons are sued as partners in the name of their firm, they shall appear individually in their own name, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

6. Where a summons is served under rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a member of the firm sued.

7. (1) Any person served as a partner under rule 3, but who denies that he was a partner or liable as such at any material time may enter an appearance stating therein 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." Such appearance, so long as it stands, shall be treated as an appearance for the firm.

(2) If an appearance is so entered—

( a ) the plaintiff may apply to set it aside on the ground that the person entering it was a partner or liable as such, or may leave that question to be determined at a later stage of the proceedings; or

( b ) the person entering the appearance may apply to set aside the service on him on the ground that he was not a partner or liable as such, or he may, at the proper time, deliver a defence denying either or both his liability as a partner and the liability of the defendant firm in respect of the plaintiff's claim.

(3) On the application of either party, an order may at any time be made that either or both of the questions as to the liability of the person served and the liability of the defendant firm may be tried in such manner and at such time as the Court may think fit.

8. (1) Where a judgment or order is against a firm, execution may issue against—

( a ) any property of the partnership within the jurisdiction;

( b ) any person who has appeared in his own name under rules 5 or 6 or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner;

( c ) any person who has been individually served, as a partner, with the summons and has failed to appear.

(2) If the party who has obtained judgment or an order claims to be entitled to issue execution against any other person as being a member of the firm, he may apply to the Court for leave to do so; and the Court may give such leave if the liability be not disputed, or if such liability be disputed may order that the liability of such person be tried and determined in any manner in which any issue or question in an action may be tried and determined. Except as against any property of the partnership, a judgment against a firm shall not render liable, release, or otherwise affect any member thereof who was out of the jurisdiction when the summons was issued, and who has not appeared to the summons unless he has been made a party to the action under Order 11 or has been served within the jurisdiction after the summons in the action was issued.

9. Debts owing from a firm carrying on business within the jurisdiction may be attached under Order 45 although one or more members of such firm may be resident abroad; provided that a person having the control or management of the partnership business, or a member of the firm within the jurisdiction, is served with the garnishee order. An appearance by any member pursuant to an order shall be a sufficient appearance by the firm.

10. The preceding rules of this Order shall apply to actions between a firm and one or more of its members, and to actions between firms having one or more members in common, provided such firm or firms carry on business within the jurisdiction; but no execution shall be issued in such actions without leave of the Court, and, on an application for leave to issue such execution, all such accounts and inquiries maybe directed to be taken and made and all such directions given as may be just.

11. Any person carrying on business within the jurisdiction in a name or style other than his own name, may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.

ORDER 15. PARTIES.

I. General.

1. (1) All persons may be joined in one action as plaintiffs 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 such persons brought separate actions, any common question of law or fact would arise; provided that if, upon the application of any defendant, it shall appear that such joinder may embarrass or delay the trial of the proceeding, the Court may order separate trials or make such order as may be expedient.

(2) In a case under this rule judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment but the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief, unless the Court shall otherwise direct.

2. Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just.

3. Where in an action any person has been improperly or unnecessarily joined as a co-plaintiff, and a defendant has set up a counter-claim or set-off, he may obtain the benefit thereof by establishing his counterclaim or set-off as against the parties other than the co-plaintiff so joined, notwithstanding the misjoinder of such plaintiff or any proceeding consequent thereon.

4. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. Judgment may be given against such one or more of such defendants as may be found to be liable, according to their respective liabilities, without any amendment.

5. It shall not be necessary that every defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him; but the Court may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.

6. The plaintiff may, at his option, join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.

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

8. 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 of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons; but the Court may, at any stage of the proceedings, order any of such persons to be made parties either in addition to or in lieu of the previously existing parties. This rule shall apply to trustees, executors and administrators sued in proceedings to enforce a security by sale or otherwise.

9. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court to defend, in such cause or matter, on behalf, or for the benefit, of all persons so interested.

10. Where in proceedings concerning a trust a compromise is proposed, and some of the persons interested in the compromise are not parties to the proceedings, but there are other persons in the same interest before the Court and assenting to the compromise, the Court, if satisfied that the compromise will be for the benefit of the absent person and that to require service on such persons would cause unreasonable expense or delay, may approve the compromise and order that the same shall be binding on the absent persons, and they shall be bound accordingly, except where the order has been obtained by fraud or non-disclosure of material facts.

11. Any person proceeding to prove a will in solemn form, or to revoke the probate of a will, may, if the will affects real estate, apply to the Court for an order authorising him to cite or make the heir or heirs-at-law, or other person or persons having or pretending interest in such real estate, a party or parties to the action, and the Court, on being satisfied by affidavit that the will in question does affect or purport to affect the real estate, may make an order authorising the person applying to cite the heir or heirs-at-law or such person or persons as aforesaid; provided always that the Court may give any special directions which it may think the justice of the case requires.

12. Subject to the provisions of the Acts and these Rules, in all probate actions the rules as to parties and as to citations to see proceedings in use in the Court of Probate immediately before 1st January, 1878, shall continue to be in force. Citations to see proceedings shall issue from the Central Office.

13. No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a summons or notice in manner hereinafter mentioned, or in such other manner as the Court may direct, and the proceeding as against such party shall be deemed to have begun only on the making of the order adding such party.

14. Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court at any time before trial by motion or at the trial of the action in a summary manner.

15. Where a defendant is added or substituted the plaintiff shall, unless otherwise ordered by the Court, file an amended copy of and take out a summons and serve such new defendant with such summons or notice in lieu thereof in the same manner as original defendants are served. If a statement of claim has been delivered previously to such defendant being added, the same shall, unless otherwise ordered by the Court, be amended in such manner as the addition or substitution of such new defendant shall render necessary or desirable, and a copy of such amended statement of claim shall be delivered to such new defendant at the time when he is served with the summons or notice or afterwards within four days after his appearance.

II. Person under disability.

16. An infant may sue as plaintiff by his next friend in the manner heretofore in use, and may, in like manner, defend by his guardian appointed for that purpose. On the infant's attaining full age, the next friend or guardian may apply on affidavit to the Registrar in the Central Office for a certificate that the plaintiff or defendant lately an infant may proceed or defend in his own name.

17. A person of unsound mind may sue as plaintiff by his committee or next friend, and may defend by his committee or guardian appointed for that purpose.

18. An infant shall not enter an appearance except by his guardian ad litem. No order for the appointment of such guardian shall be necessary, but the solicitor applying to enter such appearance shall make and file an affidavit in the Form No. 4 in Appendix A, Part II.

19. Every infant served with a petition or notice of motion or other document in a matter, shall appear on the hearing thereof by a guardian ad litem, in all cases in which the appointment of a special guardian is not provided for. No order for the appointment of such guardian shall be necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in rule 18 mentioned.

20. Before the name of any person shall be used in any cause or matter as next friend of any infant or other party, or as relator, such person shall sign a written authority to the solicitor for that purpose, and the authority shall be filed in the proper office.

21. In all causes or matters to which any infant or person of unsound mind, whether so found by inquisition or not, or person under any other disability, is a party, any consent as to the mode of taking evidence or as to any other procedure shall, if given with the consent of the Court by the next friend, guardian, committee or other person acting on behalf of the person under disability, have the same force and effect as if such party were under no disability and had given such consent. Provided that no such consent by the committee of any person of unsound mind shall be valid as between him and such person, unless given with the sanction of the President of the High Court.

III. Administration and execution of trusts.

22. (1) In any case in which the right of an heir-at-law, or the next-of-kin, or a class, shall depend upon the construction which the Court may put upon an instrument and it shall not be known or shall be difficult to ascertain who is or are such heir-at-law or next-of-kin or class, and the Court shall consider that in order to save expense or for some other reason it will be convenient to have the questions of construction determined before such heir-at-law, next-of-kin or class shall have been ascertained by means of inquiry or otherwise, the Court may appoint some one or more persons to represent such heir-at-law, next-of-kin or class, and the judgment of the Court in the presence of such persons shall be binding upon the heir-at-law, next-of-kin or class so represented.

(2) In any other case in which an heir-at-law, or any next-of-kin, or a class shall be interested in any proceedings, the Court may, if, having regard to the nature and extent of the interest of such persons or any of them, it shall appear expedient on account of the difficulty of ascertaining such persons, or in order to save expense, appoint one or more persons to represent such heir, or to represent all or any of such next-of-kin or class, and the judgment or order of the Court in the presence of the persons so appointed shall be binding upon the persons so represented.

23. Any residuary legatee or next-of-kin entitled to a judgment or order for the administration of the personal estate of a deceased person may have the same without serving the remaining residuary legatees or next-of-kin.

24. Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, and who may be entitled to a judgment or order for the administration of the estate of a deceased person, may have the same without serving any other legatee or person interested in the proceeds of the estate.

25. Any residuary devisee or heir entitled to the like judgment or order may have the same without serving any co-residuary devisee or co-heir.

26. Any one of several cestuis que trustent under any deed or instrument entitled to a judgment or order for the execution of the trusts of the deed or instrument may have the same without serving any other cestui que trust.

27. In all cases of actions for the prevention of waste or otherwise for the protection of property, one person may sue on behalf of himself and all persons having the same interest.

28. Any executor, administrator, or trustee entitled thereto may have a judgment or order against any one legatee, next-of-kin or, cestui que trust for the administration of the estate or the execution of the trusts.

29. Any mortgagee or other incumbrancer on land entitled to a sale of the mortgaged lands may have a judgment or order for such sale without serving any other mortgagee or incumbrancer, or a trustee for such mortgagee or incumbrancer, unless such mortgagee, incumbrancer, or trustee is in the actual possession or receipt of the rents and profits of the mortgaged or incumbered lands; provided always, that a person, at whose suit or for whose benefit a receiver or sequestrator has been appointed or extended, or continues to receive the rents and profits of the lands, shall not be deemed to be in receipt of such rents and profits within the meaning of this rule.

30. The Court may require any person to be made a party to any action or proceeding, and may give the conduct of the action or proceeding to such person as the Court may think fit, and may make such order in any particular case as it may think 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 matters in question.

31. Wherever, in any action for the administration of the estate of a deceased person, or the execution of the trusts of any deed or instrument, or for the partition or sale of any hereditaments, a judgment or order has been pronounced or made—

( a ) for an account; or

( b ) under Order 33; or

( c ) affecting the rights or interests of persons not parties to the action;

the Court may direct that any person interested in the estate or under the trust or in the hereditaments shall be served with notice of the judgment or order; and after such notice such persons shall be bound by the proceedings in the same manner as if they had originally been made parties and shall be at liberty to attend the proceedings under the judgment or order. Any person so served may, within one month after such service, apply to the Court to discharge, vary or add to the judgment or order.

32. It shall not be necessary for any person served with notice of any judgment or order to obtain an order for liberty to attend the proceedings under such judgment or order, but such persons shall be at liberty to attend the proceedings upon entering an appearance in the same manner and subject to the same provisions as a defendant entering an appearance.

33. Notice of a judgment or order served pursuant to rule 31 shall be entitled in the action and there shall be indorsed thereon a memorandum in the Form No. 30 in Appendix G.

34. A memorandum of the service upon any person of notice of the judgment or order in any action under rule 31 shall be filed in the Central Office upon due proof by affidavit of such service. The memorandum shall be in the Form No. 31 in Appendix G.

35. Notice of a judgment or order served pursuant to rule 31 on an infant or person of unsound mind not so found by inquisition shall be served in the same manner as an originating summons in an action. At any time during the proceedings under any such order, the Court may require a guardian ad litem to be appointed for any infant or person of unsound mind not so found by inquisition, who has been served with notice of such order.

36. In any cause or matter to execute the trusts of a will it shall not be necessary to make the heir-at-law a party, but the plaintiff shall be at liberty to make the heir-at-law a party where he desires to have the will established against him.

37. If in any cause, matter, or other proceeding it shall appear to the Court that any deceased person who was interested in the matter in question has no legal personal representative, the Court may proceed in the absence of any person representing the estate of the deceased person or may appoint some person to represent his estate for all the purposes of the cause, matter or other proceeding on such notice to such persons, if any, as the Court shall think fit, either specially or generally by public advertisement, and the order so 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 person had been a party to the cause, matter or proceeding.

38. In any cause or matter for the administration of the estate of a deceased person no party other than the executor or administrator shall, unless by leave of the Court, be entitled to appear at any stage on the claim of any person not a party to the cause or matter against the estate of the deceased person in respect of any debt or liability. The Court may direct or give liberty to any other party to the cause or matter to appear, either in addition to or in the place of the executor or administrator, upon such terms as to costs or otherwise as the Court may think fit.

ORDER 16. THIRD-PARTY PROCEDURE.

1. (1) Where in any action a defendant claims as against any person not already a party to the action (in this Order called "the third-party")—

( a ) that he is entitled to contribution or indemnity, or

( b ) that he is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff, or

( c ) that any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the third-party or between any or either of them,

the Court may give leave to the defendant to issue and serve a third-party notice and may, at the same time, if it shall appear desirable to do so, give the third party liberty to appear at the trial and take such part therein as may be just, and generally give such directions as to the Court shall appear proper for having any question or the rights or liabilities of the parties most conveniently determined and enforced and as to the mode and extent in or to which the third-party shall be bound or made liable by the decision or judgment in the action.

(2) The application for such leave shall be made by motion on notice to the plaintiff. Unless the plaintiff wishes to add the third party as a defendant, his attendance at the hearing of the motion shall not be necessary. If he does attend, he shall not be entitled to costs except by special direction of the Court.

(3) Application for leave to issue the third-party notice shall, unless otherwise ordered by the Court, be made within twenty-eight days from the time limited for delivering the defence or, where the application is made by the defendant to a counterclaim, the reply.

2. (1) The third-party notice shall state the nature and grounds of the claim or the nature of the question or issue sought to be determined and the nature and extent of any relief or remedy claimed and any directions of the Court given under rule 1 (1) hereof. It shall be in accordance with the Form No. 1 or the Form No. 2 in Appendix C, and shall be sealed, and served on the third-party, and a copy thereof filed with the proper officer in the same manner as in the case of an originating summons.

(2) The notice shall, unless otherwise ordered by the Court, be served within twenty-eight days from the making of the order, and with it there shall be served a copy of the originating summons and of any pleadings delivered in the action.

3. The third-party shall, as from the time of the service upon him of the notice, be a party to the action with the same rights in respect of defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

4. (1) The third-party may enter an appearance in the action within eight days from service or within such further time as may be directed by the Court and specified in the notice: Provided that the third-party failing to appear within such time may apply to the Court for leave to appear, and such leave may be given upon such terms, if any, as the Court may think fit. The memorandum of appearance shall be in the Form No. 3 in Appendix A, Part II.

(2) Where a third party has entered an appearance and has requested a statement of claim, the defendant shall deliver a statement of claim to the third party within twenty-one days from the entry of appearance.

(3) Where a third-party has entered an appearance he shall deliver his defence—

( a ) in case he has not by notice requested a statement of claim, within twenty-eight days from the entry of appearance;

or

( b ) in case he has requested a statement of claim, within twenty-eight days from the date of delivery of the statement of claim.

5. If a third-party duly served with a third-party notice does not enter an appearance or makes default in delivering any pleading which he has been ordered or is bound to deliver, he shall be deemed to admit the validity of and shall be bound by any judgment given in the action, whether by consent or otherwise, and by any decision therein on any question specified in the notice; and when contribution or indemnity or other relief or remedy is claimed against him in the notice, he shall be deemed to admit his liability in respect of such contribution or indemnity or other relief or remedy.

6. Where a third-party makes default in entering an appearance or delivering any pleading which he has been ordered or is bound to deliver and the defendant giving the notice suffers judgment by default, such defendant shall be entitled at any time, after satisfaction of the judgment against himself, or before such satisfaction by leave of the Court, to enter judgment against the third-party to the extent of any contribution or indemnity claimed in the third-party notice, or, by leave of the Court, to enter such judgment in respect of any other relief or remedy claimed as the Court shall direct: provided that it shall be lawful for the Court to set aside or vary such judgment against the third-party upon such terms as may seem just.

7. After the third-party enters an appearance, and before the expiration of the time limited for delivery of defence, he may, after serving notice of the intended application upon the plaintiff and all defendants, apply to the Court to vary any directions given by the Court under sub rule (1) of rule 1 of this Order.

8. (1) After the third-party has delivered his defence, the defendant giving notice may, after serving notice of the intended application upon the plaintiff, the third-party and any other defendant, apply to the Court for directions and the Court may—

( a ) where the liability of the third-party to the defendant giving the notice is established on the hearing of the application, order such judgment as the nature of the case may require to be entered against the third-party in favour of the defendant giving the notice, or

( b ) if satisfied that there is a question or issue proper to be tried as between the plaintiff and the defendant and the third-party or between any or either of them as to the liability of the defendant to the plaintiff or as to the liability of the third-party to make any contribution or indemnity claimed in whole or in part, or as to any other relief or remedy claimed in the notice by the defendant, or that a question or issue stated in the notice should be determined not only as between the plaintiff and the defendant but as between the plaintiff, the defendant and the third-party or any or either of them, thereupon try such question or issue or order it to be tried in such manner as the Court may direct, or

( c ) If it shall appear desirable to do so, give the third party liberty to defend the action, either alone or jointly with the original defendant, upon such terms as may be just, or

( d ) dismiss the application.

(2) Any directions given pursuant to this rule may be given either before or after any judgment has been obtained by the plaintiff against the defendant in the action, and may be varied from time to time or rescinded.

(3) The third-party proceedings may at any time be set aside by the Court.

9. (1) Where the action is tried, the Court which tries the action may, at or after the trial, give such judgment as the nature of the case may require for or against the defendant giving the notice against or for the third-party, and may grant to the defendant or to the third-party any relief or remedy which might properly have been granted if the third-party had been made a defendant to an action duly instituted against him by the defendant: provided that execution shall not be issued against the third-party without leave of the Court until after satisfaction by the defendant of any judgment against him.

(2) Where the action is decided otherwise than by trial, the Court may, on application therefor, make such order as the nature of the case may require, and, where the plaintiff has recovered judgment against the defendant, may order such judgment as may be just to be entered for or against the defendant giving notice against or for the third-party.

10. The Court may decide all questions of costs as between a third-party and the other parties to the action, and may order any one or more to pay the costs of any other or others or give such directions as to costs as the justice of the case may require.

11. (1) Where a third-party makes as against any person not already a party to the action such a claim as is defined in rule 1 the provisions of this Order regulating the rights and procedure as between the defendant and the third-party shall apply mutatis mutandis as between the third-party and such other person and the Court may give leave to such third-party to issue a third-party notice, and the preceding rules of this Order shall apply, mutatis mutandis, and the expression "third-party notice" and "third-party" shall apply to and include every notice so issued and every person served with such notice respectively.

(2) Where a person served with a notice under this rule by a third-party in turn makes such a claim as is defined in rule 1 against another person not already a party to the action, this Order as applied by this rule shall have effect as regards such further person and any further person or persons so served and so on successively.

12. (1) Where a defendant claims against another defendant—

( a ) that he is entitled to contribution or indemnity, or

( b ) that he is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff, or

( c ) that any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant making the claim and should properly be determined not only as between the plaintiff and the defendant making the claim but as between the plaintiff and the defendant and the other defendant or between any or either of them,

the defendant making the claim may, without any leave, issue and serve on such other defendant a notice making such claim or specifying such question or issue. No appearance to such notice shall be necessary.

(2) After service of such notice either defendant shall be at liberty to apply for directions as regards pleadings between them if either considers it necessary to do so. In default of such application within twenty-eight days of service of such notice, the claim, question or issue shall be tried at or after the trial of the plaintiff's action as the trial judge shall direct.

(3) Nothing herein contained shall prejudice the rights of the plaintiff against any defendant to the action.

13. In this Order the words "plaintiff" and "defendant" respectively, shall include a plaintiff and a defendant to a counterclaim.

ORDER 17. CHANGE OF PARTIES BY DEATH, &c.

1. A cause or matter shall not become abated by reason of the death, or bankruptcy of any of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite; and, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgment; but judgment may in such case be entered, notwithstanding the death.

2. In case of the death, or bankruptcy, or devolution of estate by operation of law, of any party to a cause or matter, the Court may, if it be deemed necessary for the complete settlement of all the questions involved, order that the personal representative, assignee, trustee, or other successor in interest, if any, of such party be made a party, or be served with notice in such manner and form as hereinafter prescribed, and on such terms as the Court shall think just, and shall make such order for the disposal of the cause or matter as may be just.

3. In case of an assignment, creation, or devolution of any estate or title pendente lite, the cause or matter may be continued by or against the person to or upon whom such estate or title has come or devolved.

4. Where by reason of death or bankruptcy, or any other event occurring after the commencement of a cause or matter and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the Court upon an allegation of such change, or transmission of interest or liability, or of such person interested having come into existence.

5. An order obtained as in rule 4 mentioned shall, unless the Court shall otherwise direct, be served upon the continuing party or parties, or their solicitors, and also upon each such new party, unless the person making the application be himself the only new party, and the order shall from the time of such service, subject nevertheless to rules 6 and 7, be binding on the persons served therewith, and every person served therewith who is not already a party to the cause or matter shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a summons.

6. Where any person who is under no disability, or, being under any disability, has a guardian ad litem in the cause or matter, shall be served with such order as in rule 4 mentioned, such person may apply to the Court to discharge or vary such order at any time within twelve days from the service thereof.

7. Where any person being under any disability and not having a guardian ad litem in the cause or matter, is served with any order as in rule 4 mentioned, such person may apply to the Court to discharge or vary such order at any time within twelve days from the appointment of a guardian ad litem for such party, and until such period of twelve days shall have expired such order shall have no force or effect as against such last-mentioned person.

8. When the plaintiff or defendant in a cause 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 the cause or matter may be continued) may apply to compel the plaintiff (or the person entitled to proceed) to proceed within such time as may be ordered; and in default of such proceeding, judgment may be entered for the defendant, or, as the case may be, for the person against whom the cause or matter might have been continued; and in such case, if the plaintiff has died, execution may issue as in the case provided for by Order 42, rule 24.

9. In case of the death of a sole defendant or of all the defendants in an action for the recovery of land before trial, the plaintiff shall be entitled to judgment for recovery of possession of the property, unless some other person shall take defence within a time to be appointed for that purpose by the order of the Court, to be made upon the ex parte application of the plaintiff; and it shall be lawful for the Court, upon such application as aforesaid, to order that the plaintiff shall be at liberty to sign judgment within such time as the Court may think fit, unless the person then in possession, by himself or his tenant, or the legal representative of the deceased defendant, shall within such time appear in the action; and such order may be served in the same manner as the summons; and in case any such person shall appear, the same proceedings may be taken against such new defendant as if he had originally appeared and defended the action; and if no appearance be entered, then the plaintiff shall be at liberty to sign judgment pursuant to the order.

10. In case of the death before trial of one of several defendants in an action for the recovery of land who defends separately for a portion of the property for which the other defendant or defendants do not defend, the same proceedings may be taken as to such portion as in the case of the death of a sole defendant, or the plaintiff may proceed against the surviving defendant or defendants in respect of the portion of the property for which he or they defend.

11. In case of the death before trial of one of several defendants in an action for the recovery of land who defends separately in respect of property for which a surviving defendant or surviving defendants also defend, the Court may, at any time before the trial, allow the person at the time of the death in possession of the property, or the legal representative of the deceased defendant, to defend, on such terms as may appear reasonable and just, upon the application of such person or representative; and if no such application be made or leave granted, the plaintiff may proceed against the surviving defendant or defendants to judgment and execution.

12. Where any cause or matter becomes abated or in case of any such change of interest as is by this Order provided for, the solicitor for the plaintiff or person having the conduct of the cause or matter as the case may be, shall certify the fact to the proper officer, who shall cause an entry thereof to be made in the Cause Book opposite to the name of such cause or matter.

13. Where any cause or matter shall have been standing for one year in the Cause Book marked as "abated," or standing over generally, such cause or matter at the expiration of the year shall be struck out of the Cause Book.

ORDER 18. JOINDER OF CAUSES OF ACTION.

1. Subject to the rules of this Order, the plaintiff may unite in the same action several causes of action; but if it appear to the Court that any such causes of action cannot be conveniently tried or disposed of together the Court may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof.

2. No cause of action shall unless by leave of the Court be joined with an action for the recovery of land, except claims in respect of mesne profits or arrears of rent or double rent in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which the same or any part thereof are held, or for any wrong or injury to the premises claimed. Provided that nothing in this Order contained shall prevent any plaintiff in an action for redemption from asking for or obtaining an order against the defendant for delivery of the possession of the mortgaged property to the plaintiff on or after the order absolute for redemption, and such an action for redemption and for such delivery of possession shall not be deemed an action for the recovery of land within the meaning of these Rules.

3. Claims by an assignee or trustee in bankruptcy as such shall not, unless by leave of the Court, be joined with any claim by him in any other capacity.

4. Claims by or against husband and wife may be joined with claims by or against either of them separately.

5. Claims by or against an executor or administrator as such may be joined with claims by or against him personally, provided the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator.

6. Claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant.

7. Rules 4, 5 and 6 shall be subject to rules 1, 8 and 9.

8. Any defendant alleging that the plaintiff has united in the same action several causes of action which cannot be conveniently disposed of together, may at any time apply to the Court for an order confining the action to such of the causes of action as may be conveniently disposed of together.

9. If, on the hearing of such application as in rule 8 mentioned, it shall appear to the Court that the causes of action are such as cannot all be conveniently disposed of together, the Court may order any of such causes of action to be excluded, and, consequential amendments to be made, and may make such order as to costs as may be just.

ORDER 19. PLEADING GENERALLY.

1. The plaintiff shall, subject to the provisions of Order 20, and at such time and in such manner as therein prescribed, deliver to the defendant a statement of his claim, and of the relief or remedy to which he claims to be entitled. The defendant shall subject to the provisions of Order 21, and at such time and in such manner as therein prescribed, deliver to the plaintiff his defence, set-off, or counter-claim (if any), and the plaintiff shall, subject to the provisions of Order 23, and at such time and in such manner as therein prescribed, deliver his reply (if any) to such defence, set-off, or counter-claim. Such statements shall be as brief as the nature of the case will admit, and the Taxing Master in adjusting the costs of the action shall, at the instance of any party, or may without any request, inquire into any unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with the same.

2. A defendant in an action may set-off, or set up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and such set-off or counterclaim shall have the same effect as a cross action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the Court may, on the application of the plaintiff before trial, if in the opinion of the Court such set-off or counterclaim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof.

3. Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums, and numbers shall be expressed in figures and not in words. Signature of counsel shall not be necessary; but where pleadings have been settled by counsel they shall be signed by him; and if not so settled they shall be signed by the solicitor, or by the party if he sues or defends in person.

4. The headings in Appendix B, Part IV, where applicable, shall be used for all pleadings.

5. (1) In all cases alleging a wrong within the meaning of the Civil Liability Acts, 1961 and 1964, particulars of such wrong, any personal injuries suffered and any items of special damage shall be set out in the statement of claim or counterclaim and particulars of any contributory negligence shall be set out in the defence.

(2) In all cases alleging misrepresentation, fraud, breach of trust, wilful default or undue influence and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be set out in the pleadings.

(3) In any case where the particulars, being of debt, expenses or damages, exceed three folios that fact must be so stated with a reference to full particulars already delivered or to be delivered with the pleadings.

6. In probate actions it shall be stated with regard to every claim or defence which is pleaded, what is the substance of the case on which it is intended to rely; and further:—

(1) where undue influence is pleaded, the party making such plea shall, before the case is set down for trial, give particulars of the names of the persons against whom the charge of undue influence is preferred, the nature of the conduct alleged to constitute the undue influence and the dates upon which the acts alleged to constitute undue influence were exercised; and

(2) where it is pleaded that the testator was not of sound disposing mind, the party making such plea shall, before the case is set down for trial, give particulars of any specific instance of delusion or mental incapacity; and

(3) except by leave of the Court, no evidence shall be given of any other instance of undue influence or delusion or mental incapacity at the trial.

7. (1) A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just.

(2) Before applying under this rule to the Court a party may apply for particulars by letter. The costs of each letter and of any particulars delivered pursuant thereto shall be allowable on taxation. In dealing with the costs of any application for particulars, the provisions of this paragraph shall be taken into consideration by the Court.

(3) Particulars shall not be ordered under this rule to be delivered before defence or reply, as the case may be, unless the Court shall be of opinion that they are necessary or desirable to enable the defendant or plaintiff, as the case may be, to plead or ought for any other special reason to be so delivered.

8. The party at whose instance particulars have been delivered under an order of the Court shall, unless the order otherwise provides, have the same length of time for pleading after the delivery of the particulars that he had at the date of the service of the notice of the application. Save as in this rule provided, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings, or give any extension of time.

9. Every pleading which shall contain less than fifteen folios (every figure being counted as one word) may be either printed or written, or partly printed and partly written, and every other pleading, not being a petition, shall be printed unless otherwise ordered by the Court.

10. Every pleading or other document required to be delivered to a party, or between parties, shall be delivered to the solicitor of every party who appears by a solicitor, or to the party if he does not appear by a solicitor, but if no appearance has been entered for any party, then such pleading or document shall be delivered by being filed with the proper officer of the Central Office.

11. Every pleading shall be delivered between parties, and shall, in addition to the matters specified in Order 121, rule 4, contain reference to the record number of the action, the Court (if any) to which the action is assigned, the title of the action and the description of the pleading.

12. Nothing in these Rules contained shall affect the right of any defendant to plead not guilty by statute. Every defence of not guilty by statute shall have the same effect as a plea of not guilty by statute has heretofore had. If the defendant so plead he shall not plead any other defence to the same cause of action without the leave of the Court.

13. Every allegation of fact in any pleading, not being a petition, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, or person of unsound mind.

14. Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant (as the case may be) and subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.

15. The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or Statute of Frauds.

16. No pleading, not being a petition, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

17. It shall not be sufficient for a defendant in his statement of defence to deny generally the grounds alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counterclaim, but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

18. Subject to rule 17, the plaintiff by his reply may join issue upon the defence, and each party in his pleading (if any) subsequent to reply may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined, but it may except any facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted.

19. When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with divers circumstances, it shall not be sufficient to deny it along with those circumstances.

20. When a contract, promise, or agreement is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of such contract, promise, or agreement, whether with reference to the Statute of Frauds or otherwise.

21. Wherever the contents of any document are material it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof unless the precise words of the document or any part thereof are material.

22. Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.

23. Wherever it is material to allege notice to any person of any fact, matter, or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred, be material.

24. Whenever any contract or any relation between any persons is to be implied from a series of letters or conversations, or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations, or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative.

25. Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied (e.g., consideration for a bill of exchange, where the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim).

26. No technical objection shall be raised to any pleading on the ground of any alleged want of form.

27. The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action; and may in any such case, if it shall think fit, order the costs of the application to be paid as between solicitor and client.

28. The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.

29. No action or pleading shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may, if it thinks fit, make binding declarations of right whether any consequential relief is or could be claimed or not.

ORDER 20. STATEMENT OF CLAIM.

1. When the procedure is by summary summons or special summons, no statement of claim or other pleading shall be delivered except by order of the Court, which order may be made in any case in which the delivery of such statement of claim or other pleading appears to be requisite.

2. Where the procedure is by plenary summons, the plaintiff may deliver a statement of claim with the plenary summons or notice in lieu thereof, or at any time within twenty-one days from the service thereof.

3. Where the defendant enters an appearance to a plenary summons and, at the time of entering such appearance or within eight days thereafter, gives notice in writing to the plaintiff or his solicitor, that he requires a statement of claim to be delivered, the plaintiff, if he has not already done so, shall deliver a statement of claim within twenty-one days from the receipt of such notice.

4. Subject to the provisions of Order 13, rule 17, as to filing a statement of claim when there is no appearance, no statement of claim need be delivered when the defendant fails to appear or fails to serve such notice as is mentioned in rule 3. Where the plaintiff delivers a statement of claim without being required to do so, or the defendant unnecessarily requires such statement, the Court may make such order as to the costs occasioned thereby as shall be just, if it appears that the delivery of a statement of claim was improper or unnecessary.

5. Where the defendant in a probate action has appeared, the plaintiff shall not be bound to deliver a statement of claim until the expiration of eight days after the defendant has filed his affidavit as to scripts.

6. Whenever a statement of claim is delivered the plaintiff may therein alter, modify, or extend his claim without any amendment of the indorsement on the summons.

7. Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and it shall not be necessary to ask for general or other relief, which may always be given, as the Court may think just, to the same extent as if it had been asked for. The same rule shall apply to any counterclaim made or relief claimed by the defendant in his defence.

8. Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly. The same rule shall apply where the defendant relies upon several distinct grounds of defence, set-off, or counterclaim, founded upon separate and distinct facts.

9. In every case in which the cause of action is a stated or settled account, the same shall be alleged with particulars, but in every case in which a statement of account is relied on by way of evidence or admission of any other cause of action which is pleaded the same shall not be alleged in the pleadings.

10. In probate actions where the plaintiff disputes the interest of the defendant, he shall allege in his statement of claim that he denies the defendant's interest, and in such cases both parties may with and subject to the permission of the Court adduce proof on one and the same trial of their interests respectively, and, after delivery of the statement of claim, the interest of the party to whom it has been delivered shall not be disputed by the plaintiff unless by leave of the Court.

11. In interest causes the pleading of each party must show, on the face of it, that no other person exists having a prior interest to that of the claimant.

ORDER 21. DEFENCE AND COUNTERCLAIM.

1. Where a defendant enters an appearance to a plenary summons he shall deliver his defence and counterclaim (if any)—

( a ) in case he does not by notice require a statement of claim, within twenty eight days from the entry of appearance; or

( b ) in any other case within twenty eight days from the date of delivery of the statement of claim or from the time limited for appearance, whichever shall be later.

2. Where leave has been given to a defendant to defend under Order 37, he shall deliver his defence (if any) within such time as shall be limited by the order giving leave to defend or, if no time is thereby limited, within fourteen days from the order.

3. In actions for a debt or liquidated demand in money a mere denial of the debt shall be inadmissible.

4. In actions upon bills of exchange, promissory notes, or cheques, a defence in denial must deny some matter of fact, e.g., the drawing, making, indorsing, accepting, presenting, or notice of dishonour of the bill or note.

5. In actions comprised in Order 2, rule 1 (1) classes (a) and (b), a defence in denial must deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed; e.g., in actions for goods bargained and sold, or sold and delivered, the defence must deny the order or contract, the delivery, or the amount claimed; in an action for money had and received, it must deny the receipt of the money, or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff.

6. No denial or defence shall be necessary as to damages claimed or their amount; but they shall be deemed to be put in issue in all cases, unless expressly admitted.

7. If either party wishes to deny the right of any other party to claim as executor, or as trustee, whether in bankruptcy or otherwise, or as assignee in bankruptcy, or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically.

8. Where the Court shall be of opinion that any allegations of fact denied or not admitted by the defence ought to have been admitted, the Court may make such order as shall be just with respect to any extra cost occasioned by their having been denied or not admitted.

9. Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall in his defence, state specifically that he does so by way of counterclaim.

10. Where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff along with any other persons, he shall add to the title of his defence a further title similar to the title in a statement of claim setting forth the names of all the persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver his defence to such of them as are parties to the action within the period within which he is required to deliver it to the plaintiff.

11. Where any such person as in rule 10 mentioned is not a party to the action, he shall be summoned to appear by being served with a copy of the defence, and such service shall be regulated by the same rules as are hereinbefore contained with respect to the service of a summons, and every defence so served shall be indorsed in the Form No. 3 in Appendix C.

12. Any person not a defendant to the action, who is served with a defence and counterclaim as aforesaid, shall appear thereto as if he had been served with a summons to appear in an action.

13. Any person named in a defence as a party to a counterclaim thereby made may deliver a reply within the time within which he might deliver a defence if it were a statement of claim.

14. Where a defendant sets up a counterclaim, if the plaintiff or any other person named in manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent action, he may at any time before reply apply to the Court for an order that such counterclaim may be excluded, and the Court may, on the hearing of such application, make such order as shall be just.

15. If, in any case in which the defendant sets up a counterclaim, the action of the plaintiff is stayed, discontinued, or dismissed, the counterclaim may nevertheless be proceeded with.

16. Where in any action a set-off or counterclaim is established as a defence against the plaintiff's claim, the Court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.

17. In probate actions the party opposing a will may, with his defence, give notice to the party setting up the will that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall not, in any event, be liable to pay the costs of the other side unless the Court shall be of opinion that there was no reasonable ground for opposing the will.

18. In every case in which a party shall plead the general issue, intending to give the special matter in evidence by virtue of any statute, he shall insert in the margin of his pleading the words "by statute" together with the year in which the statute on which he relies was passed, and also the chapter or number and section of such statute, and shall specify whether such statute is public or otherwise; otherwise such defence shall be taken not to have been pleaded by virtue of any statute.

19. No plea or defence shall be pleaded in abatement.

20. No defendant in an action for the recovery of land upon the title, who is in possession by himself or his tenant, need plead his title, unless his defence depends on an equitable estate or right or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. Except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession and it shall be taken to be implied in such statement that he denies, or does not admit, the allegations of fact contained in the plaintiff's statement of claim. He may, nevertheless, rely upon any ground of defence which he can prove except as hereinbefore mentioned.

21. In case of such an action being brought by some or one of several persons entitled as joint tenants, tenants in common, or coparceners, any joint tenant, tenant in common, or coparcener in possession may set forth in his defence that he is such joint tenant, tenant in common, or coparcener, and defends as such, and that he admits the right of the plaintiff to an undivided share of the property, stating what share, but denies any actual ouster of him from the property, and upon the trial of such issue the additional question of whether an actual ouster has taken place shall be tried.

22. A person who has appeared in an action for the recovery of a holding, agricultural or pastoral, or partly agricultural and partly pastoral, in its character, for non-payment of rent, and has limited his appearance in accordance with Order 12, rule 22 shall deliver his defence (if any) within thirty-one days after his appearance.

ORDER 22. PAYMENT INTO AND OUT OF COURT AND TENDER.

1. (1) In any action for a debt or damages or in an admiralty action the defendant may at any time after he has entered an appearance in the action and before it is set down for trial, or at any later time by leave of the Court, upon notice to the plaintiff, pay into Court a sum of money in satisfaction of the claim or (where several causes of action are joined in one action) in satisfaction of one or more of the causes of action.

(2) A defendant may once, without leave, and upon notice to the plaintiff, pay into Court an additional sum of money as an increase in a payment made under paragraph (1) hereof. Such notice must be given and payment made at least three months before the date on which the action is first listed for hearing. Such increased lodgment shall thereupon become the sum paid into Court and the date of such increased payment the date of the payment into Court. If such notice is not given, and such payment not made as aforesaid the payment made, under paragraph (1) shall be deemed to be the only payment into Court and this Order shall be construed accordingly.

(3) In actions for libel or slander, or where the defence raises questions of title to land or incorporeal hereditaments, money may not be paid into Court under this rule unless liability is admitted in the defence.

(4) In an action on a bond, covenant or agreement coming within the provisions of the Common Law Procedure Amendment Act (Ireland) 1853, section 145, payment into Court under this rule shall be admissible as to particular breaches only, and not to the whole action.

(5) Where money is paid into Court in satisfaction of one or more of several causes of action the notice shall specify the cause or causes of action in respect of which payment is made, and the sum paid in respect of each cause of action, unless the Court otherwise orders.

(6) The notice shall be in the Form No. 4 or No. 5, as appropriate, in Appendix C, and shall state whether liability is admitted or denied, and subject to rule 7, shall be regarded as part of the pleadings.

2. It shall be lawful for any defendant in any action for the recovery of land for non-payment of rent, before or at the time of delivering his defence, or where the defendant is not required to deliver a defence, before or at the time of filing an affidavit in answer to the plaintiff's claim, or at any later time by leave of the Court, upon notice to the plaintiff to pay into Court a sum of money for rent, with an undertaking to pay the costs then incurred when taxed and ascertained and in case of non-payment thereof to suffer judgment to be marked, and thereupon the plaintiff, if he shall not accept the said sum in full discharge of the action, with costs to be taxed by the proper officer, may proceed in the said action at his peril; and if upon trial of the issue it shall appear that no greater sum was due for rent at the time of the service of the summons than the sum paid into Court, the verdict shall be entered for the defendant.

3. With a defence or affidavit setting up a tender before action, the sum of money alleged to have been tendered must be brought into Court.

4. (1) Where money is paid into Court under rule 1 the plaintiff may, within fourteen days of the receipt of notice of payment into Court, or within such further period as may be agreed upon by the parties, accept the whole sum or any one or more of the specified sums in satisfaction of the claim or in satisfaction of the cause or causes of action to which the specified sum or sums relate, by giving notice to the defendant in the Form No. 6 in Appendix C; and thereupon he shall be entitled to receive payment of the accepted sum or sums in satisfaction as aforesaid.

(2) Payment shall be made to the plaintiff or on his written authority to his solicitor, and thereupon proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall be stayed.

(3) If the plaintiff accepts money paid into Court in satisfaction of his claim, or if he accepts a sum or sums paid in respect of one or more of the specified causes of action, and gives notice that he abandons the other cause or causes of action, he may after four days from payment out, unless the Court otherwise orders, tax his costs incurred to the date of giving notice to the defendant in accordance with the provisions of sub rule (1) hereof, and forty-eight hours after taxation may sign judgment for his taxed costs.

(4) This rule does not apply to admiralty actions.

5. If the whole of the money in Court is not taken out under rule 4, the money remaining in Court shall not be paid out except in satisfaction of the claim or specified cause or causes of action in respect of which it was paid in and in pursuance of an order of the Court, which may be made at any time before, at, or after trial.

6. If the plaintiff does not accept, in satisfaction of the claim or cause of action in respect of which the payment into Court has been made, the sum so paid in but proceeds with the action in respect of such claim or cause of action, or any part thereof, and is not awarded more than the amount paid into Court, then, unless the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct, the following provisions shall apply:

(1) If the amount paid into Court exceeds the amount awarded to the plaintiff, the excess shall be repaid to the defendant and the balance shall be retained in Court.

(2) The plaintiff shall be entitled to the costs of the action up to the time when such payment into Court was made and of the issues or issue, if any, upon which he shall have succeeded.

(3) The defendant shall be entitled to the costs of the action from the time such payment into Court was made other than such issues or issue as aforesaid.

(4) The costs mentioned at paragraphs (2) and (3) hereof shall be set off against each other; and if the balance shall be in favour of the defendant, the amount thereof shall be satisfied pro tanto out of the money remaining in Court and, in so far as the money remaining in Court is not sufficient to satisfy the same, shall be recoverable from the plaintiff; or if the balance shall be in favour of the plaintiff, the amount thereof shall be recoverable from the defendant.

(5) Any money remaining in Court after satisfying the balance (if any) due to the defendant for costs as aforesaid shall be paid out to the plaintiff.

(6) If in any case the Court is of opinion that for the purposes of the preceding paragraphs of this rule it is not necessary to retain in Court the whole of the balance referred to in paragraph (1) it may order the payment out to the plaintiff of so much thereof as it deems proper.

(7) The amount awarded to the plaintiff shall be deemed to be satisfied by the application in manner aforesaid of the moneys paid into Court.

7. (1) The fact that money has been paid into Court under any of the preceding rules of this Order shall be stated in the defence, or where the defendant is not required to deliver a defence, in the affidavit filed in answer to the plaintiff's claim; but except in an action to which a defence of tender before action is pleaded no communication of the amount so paid into Court shall at the trial of any action be made to the Judge until all questions of liability and amount of debt or damages have been decided, and where an action (except as aforesaid) is tried by a Judge with a jury, no communication either of the fact that money has been paid into Court or of the amount thereof shall be made to the jury.

(2) Where the defendant has made a payment into Court under rule 1 (1) after his defence has been delivered or having filed an affidavit in answer to the plaintiff's claim, as the case may be, an amended defence shall be delivered or a supplementary affidavit shall be filed to comply with the provisions of paragraph (1) hereof. No order shall be required for such amendment or for the filing of such supplementary affidavit.

8. A plaintiff may, in answer to a counterclaim, pay money into Court in satisfaction thereof, subject to the like conditions as to costs and otherwise as upon payment into Court by a defendant.

9. Money paid into Court under an order of the Court shall not be paid out of court except in pursuance of an order of the Court: Provided that, where before the delivery of defence money has been paid into Court by the defendant pursuant to an order under the provisions of Order 37, he may (unless the Court shall otherwise order) by notice in writing appropriate the whole or any part of such money, and any additional payment if necessary, to the whole or any specified portion of the plaintiff's claim or if he pleads a tender may by his pleading appropriate the whole or any part of the money in Court as payment into Court of the money alleged to have been tendered; and the money so appropriated shall thereupon be deemed to be money paid into Court pursuant to the preceding rules of this Order relating to money paid into Court, or money paid into Court with a plea of tender as the case may be, and shall be subject in all respects thereto.

10. (1) In any cause or matter in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into Court, either before or at or after trial, shall, as regards the claims of any such infant or person of unsound mind, be valid without the approval of the Court.

(2) No money (which expression for the purposes of this rule includes damages) in any way recovered or adjudged or ordered or awarded or agreed to be paid in any such cause or matter in respect of the claims of any such infant or person of unsound mind, whether by verdict or by settlement, compromise, payment into Court or otherwise, before or at or after the trial, shall be paid to the plaintiff or to the next friend of the plaintiff or to the plaintiff's solicitor unless the Court shall so direct.

(3) All money so recovered or adjudged or ordered or awarded or agreed to be paid shall be dealt with as the Court shall direct, and the said money or any part thereof may be so directed:—

( a ) to be paid into the High Court and to be invested or otherwise dealt with there; or

( b ) to be paid into or transferred to the Circuit Court of the district in which such plaintiff resides, or such other Circuit Court as the Court may think fit.

The Forms Nos. 9 and 10 in Appendix E may be used in cases to which they are applicable.

(4) (i) The directions referred to in paragraph (3) of this rule may include any general or special directions that the Court may think fit to give, including (without prejudice to the generality of the above provision) 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 (in case of transfer to the Circuit Court) either before or after it is transferred to the Circuit Court, to the plaintiff or to the next friend in respect of moneys paid or expenses incurred or for maintenance or otherwise for or on behalf of or for the benefit of the infant or person of unsound mind or otherwise, or to the plaintiff's solicitor in respect of costs.

(ii) The certificate of the birth of every such infant plaintiff shall be produced to the Court, and the date of such birth shall be recited in the certificate or order of the Court.

(5) The proper officer of the Central Office shall on request from the County Registrar furnish to him free of charge copies of such documents as may be required by the Circuit Court in any cause or matter in which money shall have been paid or transferred under paragraph (3) (b) of this rule.

(6) Money paid into or transferred to the Circuit Court under this rule shall (subject to any order or direction that may be given in the judgment or order for payment or transfer thereof) be held, invested, applied or otherwise dealt with for the benefit of such plaintiff in such manner as the Circuit Court in its discretion thinks fit and in accordance with the Circuit Court Rules for the time being in force.

(7) Nothing in this rule shall prejudice the lien of a solicitor for costs.

(8) Subject to any order which may be made by the Court (whether on consent or otherwise) as to the costs of the plaintiff or plaintiffs in any such cause or matter, or as to the amount of such costs or the mode of payment thereof:—

(i) The costs of the plaintiff, or if more than one, of all the plaintiffs in any such cause or matter or incident to the claims therein or consequent thereon shall, as regards costs ordered to be paid to such plaintiff or plaintiffs by the defendant or any other party to such cause or matter be taxed by the Taxing Master as between party and party;

(ii) The costs (if any) of the plaintiff or if more than one of all such plaintiffs not ordered to be paid by or recoverable from any other party shall be taxed by the Taxing Master as between solicitor and client on notice to the General Solicitor for Wards of Court, and if any portion of such costs be payable by any adult party to the cause or matter who is sui juris the Taxing Master shall certify the amount of such portion and the portions payable by such infant or person of unsound mind; and no costs other than those so certified shall be payable to the solicitor for any plaintiff in the cause or matter.

(9) This rule shall apply mutatis mutandis to:—

( a ) money recovered on a counterclaim;

( b ) money recovered by a person of unsound mind whether so found by inquisition or not so found;

( c ) any action settled on behalf of an infant before trial.

11. Money paid into Court or investments made under the provisions of rule 10, and the dividends or interest thereon, shall be sold, transferred, or paid out to the party entitled thereto, pursuant to the order of the Court.

12. Money may be paid into Court under this Order by one or more of several defendants sued jointly or in the alternative upon notice to the other defendant or defendants. If the plaintiff elects within the time limited by this Order to accept the money paid into Court, he shall give notice as in rule 4 mentioned to each defendant and thereupon all further proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall be stayed and the money shall not be paid out except in pursuance of an order of the Court dealing with the whole costs of the action or cause or causes of action (as the case may be).

13. In any cause or matter in which damages are claimed under the Civil Liability Act, 1961 , Part IV, money paid into Court under this Order shall not be paid out without an order of the Court.

ORDER 23. REPLY AND SUBSEQUENT PLEADINGS.

1. No reply shall be necessary in any case where all the material statements of fact in the relevant pleading are merely to be denied and put in issue.

2. A plaintiff shall deliver his reply, where necessary, within fourteen days from the delivery of the defence or the last of the defences unless the time shall be extended by the Court.

3. No pleading subsequent to reply other than a joinder of issue shall be pleaded without leave of the Court, and then only upon such terms as the Court shall think fit.

4. Subject to rule 3, every pleading subsequent to reply shall be delivered within four days from the delivery of the previous pleading, unless the time shall be extended by the Court.

5. Where a counterclaim is pleaded, a reply thereto shall be subject to the rules applicable to a defence.

6. As soon as any party has joined issue upon the preceding pleading of the opposite party simply without adding any further or other pleading thereto, or has made default as mentioned in Order 27, rule 11, the pleadings as between such parties shall be deemed to be closed.

ORDER 24. MATTERS ARISING PENDING THE ACTION.

1. Any ground of defence which has arisen after action brought but before the defendant has delivered his defence, and before the time limited for his doing so has expired, may be raised by the defendant in his defence, either alone or together with other grounds of defence; and if, after a defence has been delivered, any ground of defence arises to any set-off or counterclaim alleged therein by the defendant, it may be raised by the plaintiff in his reply, either alone or together with any other ground of reply.

2. Where any ground of defence arises after the defendant has delivered a defence, or after the time limited for his doing so has expired, the defendant may, and where any ground of defence to any set-off or counterclaim arises after reply, or after the time limited for delivering a reply, has expired, the plaintiff may, within eight days after such ground of defence has arisen, or any subsequent time by leave of the Court, deliver a further defence or further reply as the case may be, setting forth the same.

3. Whenever any defendant, in his defence, or in any further defence as in rule 2 mentioned alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of such defence (which confession may be in the Form No. 7 in Appendix C), and may thereupon sign judgment for his costs up to the time of the pleading of such defence, unless the Court shall, either before or after the delivery of such confession, otherwise order.

ORDER 25. TRIAL OF POINT OF LAW.

1. Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

2. If, in the opinion of the Court, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counterclaim, or reply therein, the Court may thereupon dismiss the action or make such other order therein as may be just.

ORDER 26. DISCONTINUANCE.

1. The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application), by notice in writing in the Form No. 20 in Appendix C, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or, if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such costs shall be taxed. The plaintiff may, however, at any time prior to the setting down of any cause for trial wholly discontinue his action, with or without costs to be paid by any party, upon producing to the proper officer a consent in writing signed by all parties or by their solicitors and such costs (if any) shall be taxed. Such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this rule otherwise provided, it shall not be competent for the plaintiff to discontinue the action without leave of the Court, but the Court may before, or at, or after, the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. The Court may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave.

2. When a cause has been entered for trial, it may be withdrawn by either plaintiff or defendant, upon producing to the proper officer a consent in writing signed by the parties or by their solicitors. The consent shall include the list number and trial venue of the case.

3. Any defendant may enter judgment for the costs of the action, if it is wholly discontinued against him, or for the costs occasioned by the matter withdrawn, if the action be not wholly discontinued, in case such respective costs are not paid within four days after taxation.

4. If any subsequent action shall be brought before payment of the costs of a discontinued action, for the same, or substantially the same, cause of action, the Court may order a stay of such subsequent action, until such costs shall have been paid.

ORDER 27. DEFAULT OF PLEADING.

1. If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court to dismiss the action, with costs, for want of prosecution; and on the hearing of such application the Court may order the action to be dismissed accordingly, or may make such other order on such terms as the Court shall think just.

2. Subject to the provisions of rules 15 and 16, if the plaintiff's claim be only for a debt or liquidated demand, or for the recovery of land, or for the delivery of specific goods, and the defendant does not within the time allowed for that purpose deliver a defence, the plaintiff may at the expiration of such time enter final judgment in the Central Office for the amount of such debt or liquidated demand, or that the person whose title is asserted in the statement of claim shall recover possession of the land, or for the delivery of the specific goods without giving the defendant the option of retaining such goods upon paying the value thereof, as the case may be, with costs.

3. If the plaintiff's claim be for a debt or liquidated demand, or for the recovery of land, or for the delivery of specific goods, and also for pecuniary damages or any other relief, and the defendant does not within the time allowed for that purpose deliver a defence, the plaintiff may enter final judgment as in rule 2 provided and may also apply as in rule 8 provided in respect of the said claim for pecuniary damages or other relief.

4. When in any such action as in rules 2 and 3 mentioned there are several defendants, if one of them make default as mentioned in the said rules, the plaintiff may enter final judgment against the defendant so making default, and issue execution upon such judgment without prejudice to his right to proceed with his action against the other defendants or against the said defendant under rule 3.

5. If the action be for recovery of land for non-payment of rent, no judgment shall be entered under this Order until an affidavit has been filed, made by the landlord, his agent, receiver, or clerk, stating that there was, at the commencement of the action, at least one year's rent due above all just and fair allowances.

6. In an action for the recovery of a holding or of lands including a holding agricultural or pastoral, or partly agricultural and partly pastoral, in its character, for non-payment of rent no judgment shall be entered under this Order until an affidavit has been filed made by the landlord, his agent, receiver, or clerk, verifying the special indorsement on the summons. Such affidavit may be in the Form No. 6 in Appendix A, Part 1.

7. In probate actions, if any defendant make default in delivering a defence, the action may proceed, notwithstanding such default.

8. In all other actions than those in the preceding rules of this Order mentioned, if a defendant, being bound to deliver a defence, does not do so within the time allowed, the plaintiff may, subject to the provisions of rule 9, set down the action on motion for judgment and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled to. Any damages to which the plaintiff may be entitled shall be ascertained by the Judge with a jury in case any party requires and is entitled to one, but otherwise without a jury, and, if without a jury, either by the Judge or by the Master or by the Examiner, as the Judge may direct, on evidence by affidavit or otherwise.

9. (1) Except as provided in sub rule 4 hereof, no notice of motion for judgment in default of defence in actions claiming unliquidated damages in tort or contract may be served unless the plaintiff has at least twenty-one days prior to the service of such notice written to the defendant giving him notice of his intention to serve a notice of motion for judgment and at the same time consenting to the late delivery of defence within twenty-one days of the date of the letter.

(2) If no defence is delivered within the said period the plaintiff shall be at liberty to serve a notice of motion for judgment in default of defence which shall be returnable to a date not less than fourteen clear days from the date of the service of the notice; such notice of motion to be filed not later than six days before the return date.

(3) If, not later than seven days after the service of such notice of motion for judgment, the defendant delivers a defence to the plaintiff and not later than six days before the return date lodges a copy thereof in the Central Office with a certified copy of the said notice of motion attached thereto, the said motion for judgment shall not be put in the judge's list but shall stand struck out and the defendant shall pay to the plaintiff the sum of £100 for his costs of the said motion for judgment.

(4) If, in any case, the plaintiff can establish special reasons making it necessary to serve a notice of motion for judgment in default of defence in the cases provided for by this rule with greater urgency than in accordance with the provisions hereinbefore contained, he may apply ex-parte to the Master of the High Court for an order giving him liberty to serve a notice of motion for judgment in default of defence giving not less than four clear days notice to the defendant.

10. Where, in any such action as mentioned in rule 8, there are several defendants, then, if one of such defendants make such default as aforesaid, the plaintiff may either (if the cause of action is severable) set down the action at once on motion for judgment against the defendant so making default, or may set it down against him at the time when it is entered for trial or set down on motion for judgment against the other defendants.

11. If the plaintiff does not deliver a reply, or any party does not deliver any subsequent pleading, within the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue.

12. In any case in which issues arise in an action other than between plaintiff and defendant, if any party to any such issue makes default in delivering any pleading, the opposite party may apply to the Court for such judgment, if any, as upon the pleadings he may appear to be entitled to, and the Court may order judgment to be entered accordingly, or may make such other order as may be necessary to do complete justice between the parties.

13. Before judgment by default shall be entered for any debt or liquidated demand under this Order, an affidavit shall be filed specifying the sum then actually due.

14. Any judgment by default, whether under this Order or under any other of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, and where an action has been set down under rule 8, such setting down may be dealt with by the Court in the same way as if a judgment by default had been signed when the case was set down.

15. In proceedings brought by a moneylender or the assignee or legal personal representative of a moneylender for the recovery of money lent by the moneylender or any interest thereon, judgment in default of defence shall not be entered until after the expiration of twelve months from the date of issue of the summons by which the proceedings were instituted unless the leave of the Court shall have been first obtained. An application for such leave may be made by motion on notice served not less than four clear days before the hearing; and the provisions of Order 13, rule 14 (2) and (3) shall apply to such application.

16. In actions to recover a debt or liquidated demand arising under a hire-purchase agreement or credit-sale agreement (as defined by the Hire-Purchase Act, 1946 ) or any contract of guarantee relating to such an agreement, judgment in default of defence shall not be entered until after the expiration of twelve months from the date of issue of the summons by which the proceedings were instituted unless the leave of the Court shall have been first obtained. An application for such leave may be made by motion on notice served, not less than four clear days before the hearing, personally or by registered post addressed to the defendant at his last known place of address; and judgment shall not be entered until an affidavit shall have been filed stating that the requirements specified in section 3 or section 4 (as the case may be) of the Hire-Purchase Act, 1946 , (as amended by sections 21 and 22 of the Hire-Purchase Act, 1960) have been complied with.

ORDER 28. AMENDMENT.

1. The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

2. The plaintiff may, without any leave, amend his statement of claim, whether indorsed on the summons or not, once at any time before the expiration of the time limited for reply, and before replying or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared.

3. A defendant who has set up any counterclaim or set-off may without any leave, amend such counterclaim or set-off at any time within six days from the delivery of the reply or the expiration of the time allowed for delivery thereof, whichever shall be the shorter.

4. Where any party has amended his pleading under either rule 2 or rule 3, the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the Court to disallow the amendment, or any part thereof, and the Court may, if satisfied that the justice of the case requires it, disallow the same, or allow it subject to such terms as to costs or otherwise as may be just.

5. Where any party has amended his pleadings under rule 2 or rule 3, the opposite party shall plead to the amended pleading, or amend his pleading, within the time he then has to plead or within eight days from the delivery of the amendment, whichever shall be the longer; and in case the opposite party has pleaded before the delivery of the amendment, and does not plead again or amend within the time above mentioned, he shall be deemed to rely on his original pleading in answer to such amendment.

6. In all cases not provided for by the preceding rules of this Order, application for leave to amend may be made by either party to the Court before or at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just.

7. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days as the case may be, become ipso facto void, unless the time is extended by the Court.

8. An indorsement or pleading may be amended by written alterations in the copy which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amendments require the insertion of more than 144 words in any one place, or are so numerous, or of such a nature that the making of them in writing would render the document difficult or inconvenient to read, in either of which cases the amendment must be made by delivering the document as amended, which shall be printed when printing is required under Order 19, rule 9.

9. Whenever any indorsement or pleading is amended, the same when amended, shall be marked with the date of the order, if any, under which the same is so amended, and of the day on which such amendment is made, in manner following, viz.: "Amended the  day of        pursuant to order of        dated the        day of       ."

10. Whenever any indorsement or pleading is amended, such amended document shall be delivered to the opposite party within the time allowed for amending the same.

11. Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on motion without an appeal.

12. The Court may at any time, and on such terms as to costs or otherwise as the Court may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.

13. The costs of and occasioned by any amendment made pursuant to rules 2 and 3 shall be borne by the party making the same, unless the Court shall otherwise order.

ORDER 29. SECURITY FOR COSTS.

1. When a party shall require security for costs from another party, he shall be at liberty to apply by notice to the party for such security; and in case the latter shall not, within forty-eight hours after service thereof, undertake by notice to comply therewith, the party requiring the security shall be at liberty to apply to the Court for an order that the said party do furnish such security.

2. A defendant shall not be entitled to an order for security for costs solely on the ground that the plaintiff resides in Northern Ireland.

3. No defendant shall be entitled to an order for security for costs by reason of any plaintiff being resident out of the jurisdiction of the Court, unless upon a satisfactory affidavit that such defendant has a defence upon the merits.

4. A plaintiff ordinarily resident out of the jurisdiction may be ordered to give security for costs though he may be temporarily resident within the jurisdiction.

5. If a person brings an action for the recovery of land after a prior action for the recovery of the same has been brought by such person or by any person through or under whom he claims, against the same defendant, or against any person through or under whom he defends, the Court may at any time order that the plaintiff shall give to the defendant security for the defendant's costs, whether the prior action has been disposed of by discontinuance or by non-suit or by judgment for the defendant.

6. Where the Court shall have made an order that a party do furnish security for costs, the amount of such security and the time or times at which, and the manner and form in which, and the person or persons to whom, the same shall be given shall, subject to rule 7, be determined by the Master in every case.

7. Where a bond is to be given as security for costs, it shall, unless the Master shall otherwise direct, be given to the party or person requiring the security, and not to an officer of the Court. Provided that in any matrimonial cause or matter where security for costs is to be given by bond the bond shall be given to the Master.

ORDER 30. SIDE-BAR ORDERS.

The following shall be the side-bar orders of the Court:—

(1) For plaintiff, lately an infant to proceed in his own name, he having attained his full age (in cases not coming within Order 15, rule 16).

(2) To proceed against a defendant, lately an infant, he having attained his full age (in cases not coming within Order 15, rule 16).

(3) To proceed notwithstanding the death of a party, his right surviving.

(4) To proceed by or against a new Attorney General.

(5) That a party do furnish a rental.

(6) That tenants do pay their rents to receiver, sequestrator, guardian, or administrator pendente lite.

(7) That persons indebted to personal estate do pay the sums due by them to receiver or administrator pendente lite.

(8) For injunction to sheriff to put purchaser into possession.

(9) For injunction to sheriff to put tenant into possession.

(10) To discharge receiver over lands sold by the Land Judge, or over lands comprised in a vesting order made or an agreement fiated by the Irish Land Commission (on production of a certificate of the Irish Land Commission that such vesting order has been made or such agreement fiated, and of the advance having been made in respect of such lands).

(11) To confirm sale absolutely.

(12) To receive a consent and make the same a rule of Court in cases heretofore usual.

(13) To make a conditional order absolute on a certificate of no cause, and to make an order directing payment of such costs (if any) as were reserved on the making of the conditional order.

(14) For judgment of ouster on a disclaimer.

(15) To proceed compromise off.

(16) To change solicitor in matrimonial causes or matters under Order 70, rule 69.

(17) That the non-appearance of a party cited be taken as a renunciation of his right to probate or administration under Order 79, rule 57.

(18) That a party cited extract probate or administration, or that his not doing so be taken as a renunciation of his right under Order 79, rule 58.

(19) In admiralty — to receive agreements in writing under Order 64, rule 52.

Save as aforesaid no side-bar order shall be entered or made.

ORDER 31. INTERROGATORIES, DISCOVERY AND INSPECTION.

1. In any cause or matter where relief by way of damages or otherwise is sought on the ground of fraud or breach of trust, the plaintiff may at any time after delivering his statement of claim, and a defendant may at or after the time of delivering his defence, without any order for that purpose, and in every other cause or matter any party may by leave of the Court, upon such terms as to security for costs or otherwise as the Court may direct, deliver interrogatories in writing for the examination of the opposite parties, or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer: provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose; provided also that interrogatories which do not relate to any matters in question in the cause or matter shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

2. A copy of the interrogatories proposed to be delivered shall be delivered with the notice of application for leave to deliver them, unless the Court shall otherwise order, and the particular interrogatories sought to be delivered shall be submitted to and considered by the Court. In deciding upon such application, the Court shall take into account any offer which may be made by the party sought to be interrogated, to deliver particulars, or to make admissions, or to produce documents, relating to any matter in question. Leave shall be given as to such only of the interrogatories as shall be considered necessary either for disposing fairly of the cause or matter or for saving costs.

3. In adjusting the costs of the cause or matter inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the Taxing Master or of the Court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.

4. Interrogatories shall be in the Form No. 8 in Appendix C.

5. If any party to a cause or matter be a body corporate or a joint stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly.

6. Any objection to answering any one or more of several interrogatories on the ground that it is or they are scandalous or irrelevant, or not bona fide for the purpose of the cause or matter, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer.

7. Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary, or scandalous: and any application for this purpose may be made within seven days after service of the interrogatories.

8. Interrogatories shall be answered by affidavit to be filed within ten days, or within such other time as the Court may allow.

9. An affidavit in answers to interrogatories shall be in the Form No. 9 in Appendix C.

10. No exception shall be taken to any affidavit in answer but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court on motion.

11. If any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the Court for an order requiring him to answer, or to answer further, as the case may be; and an order may be made requiring him to answer or answer further, either by affidavit or by viva voce examination, as the Court may direct.

12. (1) Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or make such order on such terms as to security for the costs of discovery or otherwise and either generally or limited to certain classes of documents as may be thought fit.

(2) On any such application the Court, in lieu of ordering an affidavit of documents to be filed, may order that the party from whom discovery is sought shall deliver to the opposite party a list of the documents which are or have been in his possession, custody, or power, relating to the matters in question. Such list shall, as nearly as may be, follow the form of the affidavit prescribed in rule 13. The ordering of the delivery of such list shall not preclude the Court from afterwards ordering the making and filing of an affidavit of documents.

(3) An order shall not be made under this rule if and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

13. The affidavit, to be made by a party against whom such order as is mentioned in rule 12 (1), has been made, shall specify which, if any, of the documents therein mentioned he objects to produce, and it shall be in the Form No. 10 in Appendix C.

14. The Court may at any time during the pendency of any cause or matter, order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such cause or matter, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.

15. Every party to a cause or matter shall be entitled at any time, by notice in writing, to give notice to any other party, in whose pleadings, or affidavit or list of documents reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit copies thereof to be taken; and any party not complying with such notice shall not afterwards be at liberty to put any such documents in evidence on his behalf in such cause or matter, unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice; in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit.

16. Notice to any party to produce any documents referred to in his pleadings or affidavit or list of documents shall be in the Form No. 11 in Appendix C.

17. The party to whom such notice is given, shall, within two days from the receipt of such notice, if all the documents therein referred to have been set forth by him in such affidavit or list as is mentioned in rule 13, or if any of the documents referred to in such notice have been set forth by him in any such affidavit or list, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof, at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, or in the case of bankers' books or other books of account, or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in the Form No. 12 in Appendix C.

18. (1) If the party served with notice under rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his solicitor, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit; and, except in the case of documents referred to in the pleadings or affidavits of the party against whom the application is made, or disclosed in his affidavit or list of documents, such application shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them and that they are in the possession or power of the other party.

(2) An order shall not be made under this rule if and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

19. If the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the cause or matter, or that for any other reason it is desirable that any issue or question in dispute in the cause or matter should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.

20. (1) Where inspection of any business books is applied for, the Court may, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations, or alterations. Provided that, notwithstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made.

(2) Where on an application for an order for inspection privilege is claimed for any document, the Court may inspect the document for the purpose of deciding as to the validity of the claim for privilege.

(3) The Court may, on the application of any party to a cause or matter at any time, and whether an affidavit or list of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been in his possession or power; and, if not then in his possession, when he parted with the same, and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time had, in his possession or power the document or documents specified in the application, and that they relate to the matters in question in the cause or matter, or to some of them.

21. If any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court for an order to that effect, and an order may be made accordingly.

22. Service of an order for interrogatories or discovery or inspection made against any party on his solicitor shall be sufficient service to found an application for an attachment for disobedience to the order. But the party against whom the application for attachment is made may show in answer to the application that he has had no notice or knowledge of the order.

23. A solicitor, upon whom an order against any party for interrogatories or discovery or inspection is served under rule 22, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to attachment.

24. Any party may, at the trial of a cause, matter, or issue, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer; provided always that in such case the Court may look at the whole of the answers, and if it shall be of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them, it may direct them to be put in.

25. In every cause, or matter, the costs of discovery, by interrogatories, or otherwise, shall unless otherwise ordered by the Court, be allowed, as part of the costs of the party seeking discovery, either as between party and party or solicitor and client, where, and only where, such discovery shall be certified by the Court at the trial, or, if there is no trial, shall appear to the Court, or to the Taxing Master, upon special grounds to be certified by such Taxing Master, to have been reasonably asked for.

26. In any action against or by a sheriff or county registrar in respect of any matters connected with the execution of office of sheriff, the Court may, on the application of either party, order that the affidavit to be made in answer either to interrogatories or to an order for discovery shall be made by the officer actually concerned.

27. This Order shall apply to infant plaintiffs and defendants and to their next friends and guardians ad litem.

28. This Order shall not authorise an order for discovery or inspection being made against an informant suing on behalf of the State or the People, and every such informant shall be entitled without an order for that purpose to deliver interrogatories at any time before issue joined.

29. Any person not a party to the cause or matter before the Court who appears to the Court to be likely to have or to have had in his possession custody or power any documents which are relevant to an issue arising or likely to arise out of the cause or matter or is or is likely to be in a position to give evidence relevant to any such issue may by leave of the Court upon the application of any party to the said cause or matter be directed by order of the Court to answer such interrogatories or to make discovery of such documents or to permit inspection of such documents. The provisions of this Order shall apply mutatis mutandis as if the said order of the Court had been directed to a party to the said cause or matter provided always that the party seeking such order shall indemnify such person in respect of all costs thereby reasonably incurred by such person and such costs borne by the said party shall be deemed to be costs of that party for the purposes of Order 99.

ORDER 32. ADMISSIONS.

1. Any party to a cause or matter may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.

2. Either party may call upon the other party to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such documents shall be paid by the party so neglecting or refusing, whatever the result of the cause or matter may be, unless at the trial or hearing the Court shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give the notice is, in the opinion of the Taxing Master, a saving of expense.

3. A notice to admit documents shall be in the Form No. 13 in Appendix C.

4. Any party may, by notice in writing, at any time not later than nine days before the day for which notice of trial has been given, call on any other party to admit, for the purposes of the cause, matter, or issue only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the cause, matter, or issue may be, unless at the trial or hearing the Court shall certify that the refusal to admit was reasonable, or unless the Court shall at any time otherwise order or direct. Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular cause, matter, or issue, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice. Provided also that the Court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just; and provided further that all such costs and expenses as in the opinion of the Taxing Master or the Court have been caused by the omission of any party to serve such notice as aforesaid shall, whatever the result of the cause, matter, or issue, may be, unless the Court shall otherwise order, be paid by the party omitting to serve such notice.

5. A notice to admit facts shall be in the Form No. 14 in Appendix C and admissions of facts shall be in the Form No. 15 in Appendix C.

6. Any party may at any stage of a cause or matter, where admissions of fact have been made, either on the pleadings or otherwise apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may upon such application make such order, or give such judgment, as the Court may think just.

7. An affidavit of the solicitor of the due signature of any admissions made in pursuance of any notice to admit documents or facts, shall be sufficient evidence of such admissions, if evidence thereof be required.

8. Notice to produce documents shall be in the Form No. 16 in Appendix C. An affidavit of the solicitor, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served.

9. If a notice to admit or produce comprises documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice.

ORDER 33. ISSUES, ACCOUNTS AND INQUIRIES.

1. Where in any cause or matter it appears to the Court that the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues, and such issues shall, if the parties differ, be settled by the Court.

2. The Court may, at any stage of the proceedings in a cause or matter, direct any necessary inquiries to be made or accounts taken, notwithstanding that it may appear that there is some special or further relief sought or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.

3. The Court may, either by the judgment or order directing an account to be taken, or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that in taking the account, the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised.

4. Where any account is directed to be taken, the accounting party, unless the Court shall otherwise direct, shall make out his account and verify the same by affidavit. The items on each side of the account shall be numbered consecutively and the account shall be referred to by the affidavit as an exhibit and be left in the proper office.

5. Any party seeking to charge any accounting party beyond what he has by his account admitted to have received or objecting to the allowance of any sum claimed as a disbursement in such account, shall give notice in writing to the accounting party, stating, so far as he is able, the amount sought to be charged or the items objected to (as the case may be), the particulars thereof and (in the case of an objection) the reasons therefor in a short and succinct manner; and such accounting party shall be at liberty to reply to such charge or objection (as the case may be) by giving notice in writing to such first-named party, the particulars in such reply to be also stated in a short and succinct manner. Any notice in writing given under this rule shall be given within such time or times as the officer taking the account may generally or in any particular case fix. Such notice shall be in the Form No. 13 in Appendix G.

6. Every judgment or order for a general account of the personal estate of a testator or intestate shall contain a direction for an inquiry as to what parts (if any) of such personal estate are outstanding or, undisposed of, unless the Court shall otherwise direct.

7. A judgment or order for an account given or made on behalf of an incumbrancer shall direct an account to be taken of all incumbrances 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; and when any surplus produce of any sale, had under such judgment or order, after payment of the demands and costs of the plaintiff, and prior and contemporaneous incumbrances shall remain in Court, the same shall be distributed amongst the incumbrancers who may have proved their demands in the cause, according to their priorities, if the Court shall so order: Provided always, that if the Court shall be of opinion that extending the account to incumbrances subsequent to the demand of the plaintiff will improperly delay the plaintiff in recovering his demand, the account shall be confined to the rights of the plaintiff, and of incumbrancers prior to and contemporaneous with him.

8. Any incumbrancer subsequent in order of priority to the demand of the plaintiff, in case any lands or property the subject of such suit shall remain unsold, after provision for the plaintiff's demands and those of prior incumbrancers, shall be at liberty to apply to the Court for an order directing a sale of such unsold lands or property, or a competent part thereof, for payment of the demands subsequent to that of the plaintiff, which may have been proved as aforesaid; and the Court may accordingly direct such sale, if of opinion that such incumbrancers, or any of them, would be entitled to have their demands raised by a sale of such lands or property; or may direct a receiver to be appointed or continued over such unsold land or property, for the benefit of such subsequent incumbrancers and distribute the funds to be received by such receiver accordingly.

9. Where by any judgment or order, any accounts are directed to be taken or inquiries to be made, each such direction shall be numbered, so that, as far as may be, each distinct account and inquiry may be designated by a number and such judgment or order shall be in the Form No. 29 in Appendix G.

10. In taking any account directed by any judgment or order, all just allowances shall be made without any direction for that purpose.

11. If it shall appear to the Court on the representation of the Examiner or otherwise that there is any undue delay in the prosecution of any accounts or inquiries or in any other proceedings under any judgment or order, the Court may require the party having the conduct of the proceedings, or any other party, to explain the delay, and may thereupon make such order with regard to expediting the proceedings or the conduct thereof, or the stay thereof, and as to the costs of the proceedings, as the circumstances of the case may require; and for the purposes aforesaid, any party, or a special solicitor to be named by the Court for the purpose, may be directed to summon the persons whose attendance is required, and to conduct any proceedings, and carry out any directions which may be given; and any costs of such special solicitor shall be paid by such parties or out of such funds as the Court may direct; and if any such costs be not otherwise paid, the same shall be paid out of such moneys (if any) as the Oireachtas may provide.

ORDER 34. SPECIAL CASE.

1. The parties to any cause or matter may concur in stating the questions of law arising therein in the form of a special case for the opinion of the Court. Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the Court to decide the questions raised thereby. Upon the argument of such case the Court and the parties shall be at liberty to refer to the whole contents of such documents, and the Court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial.

2. If it appear to the Court that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to an arbitrator, the Court may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.

3. Every special case shall be printed by the plaintiff and signed by the several parties or their counsel or solicitor, and shall be filed by the plaintiff. Printed copies for the use of the Court shall be delivered by the plaintiff.

4. No special case in any cause or matter to which an infant, or person of unsound mind not so found by inquisition, is a party, shall be set down for argument without leave of the Court, the application for which must be supported by sufficient evidence that the statements contained in such special case, so far as the same affect the interest of such infant, or person of unsound mind, are true.

5. Either party may enter a special case for argument by delivering to the proper officer a memorandum of entry, in the Form No. 26 in Appendix C, and also if any infant, or person of unsound mind, not so found by inquisition be a party to the cause or matter, producing a copy of the order giving leave to enter the same for argument.

6. The parties to a special case may, if they think fit, enter into an agreement in writing, that, on the judgment of the Court being given in the affirmative or negative of the questions of law raised by the special case, a sum of money, fixed by the parties, or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of the parties to the other of them, either with or without costs of the cause or matter; and the judgment of the Court may be entered for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal.

7. This Order shall apply to every special case stated in a cause or matter, or in any proceeding incidental thereto, and to any special case stated for the opinion of the Court in pursuance of any statute relating to the Revenue so far as the same is not inconsistent with the provisions of such statute.

8. Any special case may hereafter be stated for the same purposes as provided by the Chancery (Ireland) Act, 1867 (30 & 31 Vic. c. 44) and the provisions of the said Act shall apply to such case, save in so far as the same may be inconsistent with this Order.

ORDER 35. ISSUES OF FACT WITHOUT PLEADINGS.

1. When the parties to a cause or matter are agreed as to the questions of fact to be decided between them, they may, after issue of the summons and before judgment, by consent and order of the Court, proceed to the trial of any such questions of fact without formal pleadings; and such questions may be stated for trial in an issue in the Form No. 17 in Appendix C, and such issue may be entered for trial and tried in the same manner as any issue joined in an ordinary action, and the proceedings shall be under the control and jurisdiction of the Court, in the same way as the proceedings in an action.

2. The Court may by consent of the parties order that, upon the finding in the affirmative or negative of such issue as in rule 1 mentioned, a sum of money, fixed by the parties, or to be ascertained upon a question inserted in the issue for that purpose, shall be paid by one of the parties to the other of them either with or without the costs of the cause or matter.

3. Upon the finding of any such issue, as in rule 1 mentioned, judgment may be entered for the sum so agreed or ascertained as aforesaid, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless the Court shall order a stay of execution with a view to an appeal.

4. The proceedings upon such issue, as in rule 1 mentioned, may be recorded at the instance of either party, and the judgment, whether actually recorded or not, shall have the same effect as any other judgment in a contested action.

ORDER 36. TRIAL.

I. Place and mode of trial.

1. All proceedings in the High Court shall be tried at the Four Courts, Dublin, unless otherwise ordered or provided by statute or by these Rules.

2. ( a ) Subject to the provisions of paragraph (b) of this rule, an application by any party for an order for the trial of any proceedings elsewhere than in Dublin may be made to a Judge at any time after the close of the pleadings by motion on notice to the other party or parties to such proceedings or, if such other party or parties consent thereto, by motion ex-parte.

( b ) In the case of any proceedings which the parties are entitled as of right to have tried with a jury, notice of trial may be served for any of the following venues—Cork, Limerick, Galway, Sligo, Dundalk, Kilkenny without prior application to the Court, and the matter may be set down for trial at such venue.

( c ) In the event of any party serving a notice of trial for a venue under paragraph 2 (b) of this rule any other party may apply to the Court by notice of motion to vary the venue.

3. A notice of trial shall be served in all actions commenced by plenary summons or adjourned for plenary hearing (other than probate and admiralty actions) and all such actions or matters shall be set down for trial in the Central Office. Motions to set aside a notice of trial shall be brought within four days after service of the notice complained of.

4. The plaintiff in probate and admiralty actions commenced by plenary summons and the petitioner in matrimonial matters commenced by petition, shall apply, by motion on notice to the Master for directions, and the Master, or the Court, if the Master shall have placed the motion in the Court list, shall fix the time and mode of trial and make any ancillary order with respect of pleadings, particulars, discovery, interrogatories, inspection of documents, inspection of real or personal property, commissions, examination of witnesses, settlement of issues, or otherwise, which may be necessary or expedient. Provided that in case the plaintiff in any such probate or admiralty action or the petitioner in any such matrimonial matters shall fail so to apply within fourteen days from the delivery of the last pleading, any defendant or any respondent, as the case may be, may apply for directions as aforesaid.

5. All causes or matters, which the parties are not entitled as of right to have tried with a jury, shall be tried by a Judge without a jury, unless the Court shall otherwise order.

6. In all cases not within rule 5, the party serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried with or without a jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within fourteen days from the service of notice of trial, or within such time as the Court may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.

7. The Court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which, without any consent of parties, can be tried without a jury, and such trial may, if so ordered by the Court, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.

8. If it be made to appear at any time after the issuing of the proceedings to the satisfaction of the Court upon the application of either party that the matter in dispute consists wholly or in part of matters of account which cannot conveniently be tried in the ordinary way, the Court upon such application may decide such matter in a summary manner, or order that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties or to the Master or Examiner upon such terms as to costs and otherwise as the Court shall think reasonable.

9. Subject to the provisions of the preceding rules of this Order, the Court may in any cause or matter, at any time or from time to time, order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others, and in all cases may order that one or more issues of fact be tried before any other or others.

10. Every trial of any question or issue of fact with a jury shall be by a Judge, unless such trial be specially ordered to be by two or more Judges.

II. Notice of trial and setting down.

11. Notice of trial may be given in any cause or matter by the plaintiff or other party in the position of plaintiff. Such notice may be given with the reply (if any) whether it closes the pleadings or not, or at any time after the issues of fact are ready for trial.

12. ( a ) If the plaintiff in any action does not within three weeks after the close of the pleadings give notice of trial, the defendant may on notice to the plaintiff apply to the Court for liberty to give notice of trial, and on the hearing of such application the Court may make such order, on such terms, as to the Court shall seem just.

( b ) If the plaintiff in any action does not within six weeks after the close of the pleadings, or within such extended time as the Court may allow, give notice of trial, the defendant may, before notice of trial given by the plaintiff, give notice of trial (which, in cases where the plaintiff is entitled as of right to a jury, shall be for trial with a jury), or may apply to the Court to dismiss the action for want of prosecution; and on the hearing of such application, the Court may order the action to be dismissed accordingly, or may make such other order, and on such terms, as to the Court may seem just.

13. If within fourteen days after the order of the Master or the Court fixing the time and mode of trial the petitioner shall not enter a matrimonial proceeding for trial, the respondent may enter such proceeding for trial, or may apply to the Court to dismiss the petition for want of prosecution.

14. If within fourteen days after the order of the Master or the Court fixing the time and mode of trial, the plaintiff in a probate or an admiralty action shall not enter the action for trial, the defendant may enter the action for trial.

15. Notice of trial shall state whether it is for the trial of the cause or matter or of issues therein, and shall be in one of the Forms Nos. 18 and 19 in Appendix C.

16. Twenty-one days' notice of trial shall be given, unless the party to whom it is given has consented, or is under terms, or has been ordered, to take short notice of trial; and shall be sufficient in all cases, unless otherwise ordered by the Court. Short notice of trial shall be four days' notice, unless otherwise ordered.

17. Notice of trial shall be given before setting down the action for trial.

18. Unless, within fourteen days after notice of trial is given the action shall be set down by one party or the other, the notice of trial shall be no longer in force.

19. Notice of trial or the setting down or entering for trial shall not be or operate as for any particular sittings; but shall be deemed to be for any day after the expiration of the notice on which the trial may come on in its order upon the list.

20. No notice of trial shall be countermanded except by consent or by leave of the Court, which leave may be given subject to such terms as to costs, or otherwise, as may be just.

21. If the party giving notice of trial omits to set down the action within seven days after giving notice of trial, the party to whom notice has been given may, unless the notice has been countermanded under rule 20, set down the action subject to rule 18.

22. The officer having the management of the Central Office for the time being shall be the proper officer to make entries and render accounts of all fines or penal sums imposed by the Court.

23. When any cause or matter shall have been adjourned for further consideration, the same may, after the expiration of eight days, and within fourteen days from the filing of the Examiner's certificate, be set down for further consideration, on the written request of the solicitor for the plaintiff or party having the conduct of the proceedings, and after the expiration of such fourteen days the cause or matter may be set down by the Registrar on the written request of the solicitor for the plaintiff or for any other party; and in either case, upon production of the judgment or order adjourning further consideration, or a copy thereof and a copy of the Examiner's certificate or a memorandum of the date when the certificate was filed, indorsed on the request by the proper officer. The request may be in the form No. 27 in Appendix G. The cause or matter when so set down shall not be put into the list for further consideration until after the expiration of six days from the day on which the same was so set down. Notice thereof shall be given to the other parties in the action at least four days before the day for which the same may be so marked for further consideration. Such notice may be in the Form No. 28 in Appendix G.

III. Papers for Judge.

24. The party desiring to set down the proceedings for trial shall do so by delivering to the proper officer a copy of the notice of trial together with two copies of the whole of the pleadings, and of any letter or notice for particulars and reply thereto, one of which shall be for the use of the Judge at the trial.

25. The party entering a probate action for trial shall, together with the two copies of the whole pleadings, deliver to the proper officer a list with names and dates of all caveats, warnings, citations and appearances lodged, filed, issued or entered down to the date of such delivery and a copy of the order fixing the time and mode of trial.

26. The party entering for trial a matrimonial proceeding commenced by petition shall deliver to the proper officer two copies of the whole of the pleadings, and a copy of the order fixing the time and mode of trial and the issues to be tried.

27. The party entering any proceedings for trial or his solicitor shall lodge a separate certificate certifying that all copies lodged are true copies.

IV. Proceedings at trial.

28. If, when a trial is called on, the plaintiff appears, and the defendant does not appear, the plaintiff may prove his claim, so far as the burden of proof lies upon him.

29. In an action for the recovery of land, in case the title of the plaintiff shall appear to have existed as alleged in the summons at the time of service thereof, but it shall also appear to have expired before the time of trial, the plaintiff shall, notwithstanding, be entitled to a verdict according to the fact that he was so entitled at the time of bringing the action and serving the summons, and to a judgment for his costs of suit.

30. In an action for the recovery of land, if the plaintiff appears and the defendant does not appear, the plaintiff shall be entitled to a verdict, without any proof of his title, and in case of an action for the recovery of land, grounded on title, shall be entitled to prove the amount of damages sustained by reason of the loss of the mesne rates and profits, and in case of an action for the recovery of land for non-payment of rent, shall be entitled to prove the amount of rent actually due, and to have a verdict for the same.

31. In cases coming within rule 30, where the action is for the recovery of land for non-payment of rent, the amount of rent due may be proved by the affidavit of the landlord, his agent, receiver or clerk.

32. If, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but, if he has a counter-claim, then he may prove such counter-claim so far as the burden of proof lies upon him.

33. Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem fit, upon an application made within six days after trial.

34. The Judge may, if he thinks it expedient for the interests of justice, postpone or adjourn a trial for such time, and upon such terms, if any, as he shall think fit.

35. Upon a trial with a jury, the addresses to the jury shall be regulated as follows: the party who begins, or his counsel, shall be allowed at the close of his case, if his opponent does not announce any intention to adduce evidence, to address the jury a second time for the purpose of summing up the evidence, and the opposite party, or his counsel, shall be allowed to open his case, and also to sum up the evidence, if any, and the right to reply shall be the same as heretofore.

36. In actions 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 on 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 seven days at least before the trial he furnished particulars to the plaintiff of the matters as to which he intends giving evidence.

37. The Judge may in all cases disallow any questions put in cross-examination of any party or other witness which may appear to him to be vexatious, and not relevant to any matter proper to be inquired into in the cause or matter.

38. The Judge may, at or after a trial, direct that judgment be entered for any or either party, or adjourn the case for further consideration before him. No judgment shall be entered after a trial without the order of the Judge.

39. Upon every trial the Registrar or other proper officer shall record all such findings of fact as the Judge may direct and the directions, if any, of the Judge as to judgment, and the certificates, if any, granted by the Judge, in a book to be kept for the purpose.

40. If the Judge shall direct that any judgment be entered for any party, the Registrar or other proper officer shall enter judgment accordingly.

41. Trials with assessors shall take place in such manner and upon such terms as the Court shall direct.

42. In every action tried by a Judge with a jury in which damages are claimed for injury to person and property caused by the negligent driving of a mechanically propelled vehicle the liability for which is required to be covered by an approved policy of insurance under the Road Traffic Act, 1961 , section 56, the Judge shall direct the jury to apportion the damages (if any) awarded between the injury to person and the injury to property.

V. Reference to Master as to damages.

43. The arrangement and regulation of the course of proceeding under a reference to the Master as to damages shall be wholly subject to the control and direction of the Master.

44. The evidence in all cases shall be taken down at the time by the Master, and preserved by him.

45. The result of the inquiry before the Master shall be stated in a certificate signed by him, and such certificate, when settled, shall be engrossed, and when signed shall be filed, and thereupon such certificate shall stand confirmed unless within four days after the filing thereof a notice of motion be served to set aside or vary the same.

46. Every such notice of motion shall specify the grounds on which it is intended to apply to set aside or vary such certificate.

47. Where the Master's certificate shall stand confirmed under rule 44, or shall on such motion as therein mentioned be confirmed, final judgment may forthwith be entered accordingly.

48. In every action or proceeding in which it shall appear to the Court that the amount of damages sought to be recovered is substantially a matter of calculation, the Court may direct that the amount for which final judgment is to be entered shall be ascertained by the Master or other proper officer of the Court, and the attendance of witnesses and the production of documents before the Master or such officer may be compelled by subpoena, and the Master or such officer may adjourn the inquiry from time to time, and shall certify the amount found by him, and the like proceedings may thereupon be had as to taxation of costs, entering judgment, and otherwise, as upon the finding of a jury.

49. Where damages are to be assessed in respect of any continuing cause of action, they shall be assessed down to the time of the assessment.

ORDER 37. HEARING OF PROCEEDINGS COMMENCED BY SUMMARY SUMMONS.

1. Every summary summons indorsed with a claim (other than for an account) under Order 2 to which an appearance has been entered shall be set down before the Master by the plaintiff, on motion for liberty to enter final judgment for the amount claimed, together with interest (if any), or for recovery of land, with or without rent or mesne profits (as the case may be) and costs, and, in the case of an action for the recovery of land for non-payment of rent, to ascertain the amount of rent due. Such motion shall be for the first available day, as the Master may fix, not being less than four clear days from the service thereof upon the defendant, and shall be supported by an affidavit sworn by the plaintiff or by any other person who can swear positively to the facts showing that the plaintiff is entitled to the relief claimed and stating that in the belief of the deponent there is no defence to the action. A copy of any such affidavit shall be served with the notice of motion.

2. Save in so far as the Court shall otherwise order, a motion for liberty to enter judgment under this Order shall be heard on affidavit: provided that any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the deponent for cross-examination, and unless such deponent is produced accordingly his affidavit shall not be used as evidence unless by the special leave of the Master or the Court, as the case may be. In cases in which the Master has jurisdiction, he shall have the same power as the Court to hear oral evidence.

3. The defendant may show cause against such motion by affidavit, or (except in actions for the recovery of land other than for non-payment of rent), by offering to bring into Court the sum indorsed on the summons. Such affidavit shall state whether the defence alleged goes to the whole or to part only, and (if so) to what part, of the plaintiff's claim. The Court may order the defendant, or, in the case of a corporation, any officer thereof, to attend and be examined upon oath, or to produce any leases, deeds, books or documents, or copies of or extracts from any of them.

4. Upon the hearing of any such motion, the Master, in all uncontested cases, may deal with the matter summarily, and may give liberty to enter judgment for the relief to which the plaintiff may appear to be entitled and, for that purpose, in the case of an action for the recovery of land for non-payment of rent, may ascertain the amount of rent due, or he may dismiss the action and generally may make such order for the determination of the action as may seem just.

5. If, in any case in which a plaintiff is entitled to apply to the Master for liberty to enter final judgment under any of the preceding rules of this Order, the plaintiff claims interest on the whole or any part of the sum of money for which the plaintiff is entitled to apply to the Master as aforesaid between the date on which the cause of action accrued and the date of judgment under section 22 of the Courts Act, 1981 , the Master shall transfer the application when in order for hearing by the Court, to the Court list for hearing on the first opportunity. The said application shall be supported by an affidavit sworn by the plaintiff or some other person who can positively swear to the facts showing that the plaintiff is entitled to the relief claimed including such interest stating that in the belief of the deponent there is no defence to the action.

6. In contested cases, the Master shall transfer the case, when in order for hearing by the Court, to the Court list for hearing on the first opportunity; and, for this purpose, the Master may extend the time for filing affidavits and give such directions and adjourn the case before himself as he shall think fit. The Master may also, on consent, adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons, with such directions as to pleadings, discovery, settlement of issues or otherwise as may be appropriate.

7. Upon the hearing of any such motion by the Court, the Court may give judgment for the relief to which the plaintiff may appear to be entitled or may dismiss the action or may adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons, with such directions as to pleadings or discovery or settlement of issues or otherwise as may be appropriate, and generally may make such order for determination of the questions in issue in the action as may seem just.

8. Except in actions for the recovery of land for non-payment of rent, if it appear that the defence set up by the defendant applies only to a part of the plaintiff's claim, or that any part of his claim is admitted, the plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to or as is admitted, subject to such terms, if any, as to suspending execution, or the payment of the amount levied or any part thereof into Court by the sheriff, the taxation of costs, or otherwise, as the Court may think fit; and the defendant may be allowed to defend as to the residue of the plaintiff's claim.

9. If it appears to the Court that any defendant has a good defence to or ought to be permitted to defend the action, and that any other defendant has not such defence and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to enter final judgment against the latter, and may issue execution upon such judgment without prejudice to his right to proceed with his action against the former.

10. Leave to defend may be given unconditionally or subject to such terms as to give security, or time and mode of trial, or otherwise as the Court may think fit.

11. If, on the hearing of any motion under this Order, it shall appear that any claim which could not have been specially indorsed under Order 2 has been included in the indorsement on the summons, the Master or the Court, as the case may be, may forthwith amend the indorsement by striking out such claim, or may deal with the claim specially indorsed as if no other claim had been included in the indorsement, and allow the action to proceed as respects the residue of the claim.

12. In any case of difficulty or doubt the Master may transfer the case to the Court list for hearing notwithstanding that he might have had jurisdiction to deal with the case himself under this Order.

13. Where a summary summons has been indorsed with a claim for an account under Order 2, or where the indorsement on a summons involves taking an account, and the defendant fails to appear, the Master shall forthwith make an order for the proper accounts, with all necessary inquiries and directions.

14. Where a summary summons has been indorsed with a claim for an account under Order 2, or where the indorsement on a summons involves taking an account, and the defendant does not after appearance, by affidavit or otherwise, satisfy the Court that there is some preliminary question to be tried, the Court shall forthwith make an order for the proper accounts, with all necessary inquiries and directions.

15. An application for such order as is mentioned in rule 13, or rule 14, shall be made by motion on notice, and be supported by an affidavit, when necessary, filed on behalf of the plaintiff, stating concisely the grounds of his claim to an account. The application may be made at any time after the time for entering an appearance has expired.

ORDER 38. HEARING OF PROCEEDINGS COMMENCED BY SPECIAL SUMMONS.

1. Every special summons shall be returnable for such day as the Master shall fix, which, except in such cases where the parties consent to an earlier date, or where no service is required, shall be not less than seven days from the date of issue, and shall, where necessary, be served on the parties concerned at least four days before the return day. An affidavit verifying the claim indorsed on the summons shall be filed in the Central Office and notice of such filing shall be given to the parties concerned.

2. The Court may direct such other persons to be served with the summons as it may think fit.

3. Save in so far as the Court shall otherwise order, proceedings commenced by special summons shall be heard on affidavit: provided that any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the deponent for cross-examination, and unless such deponent is produced accordingly his affidavit shall not be used as evidence unless by the special leave of the Court.

4. In cases in which the Master has jurisdiction, he shall have the same power as the Court to hear oral evidence or to direct additional service.

5. In all cases in which he shall have jurisdiction, the Master may decide the matter himself or put it in the Court list for hearing.

6. In all cases in which he shall not have jurisdiction, and in all such other cases which he shall decide to put in the Court list for hearing, the Master shall transfer the summons, when in order for hearing, to the Court list for hearing on the first opportunity.

7. For the purposes of rule 6, or for the purpose of any hearing before himself, the Master may extend the time for filing affidavits and give such directions and adjourn the case before himself as he shall think fit.

8. If at any stage during the course of proceedings instituted by special summons it shall appear to the Court that the determination of some question or questions of fact is necessary for the proper decision or ruling as to the relief to be granted in such proceedings or as to any matter arising therein, the Court may determine such question or questions of fact either by directing the trial of issues in regard thereto or in such other manner (whether summary or otherwise) as may seem convenient for doing justice between the parties; and evidence as to the said question or questions of fact may be given either orally or by affidavit or partly orally and partly by affidavit as the Court may in the circumstances think proper.

9. On the hearing of any special summons, the Master, in a case within his jurisdiction, or the Court, as the case may be, may give judgment for the relief to which the plaintiff may appear to be entitled or may dismiss the action or matter or may adjourn the case for plenary hearing as if the proceedings had been originated by plenary summons with such directions as to pleadings or discovery or settlement of issues or otherwise as may be appropriate, and generally may make such order for determination of the questions in issue in the action or matter as may seem just.

10. The Court may give any special directions touching the carriage or execution of the order, or the service thereof upon persons not parties, as it may think just.

ORDER 39. EVIDENCE.

I. General.

1. In the absence of any agreement in writing between the solicitors of all parties, and subject to these Rules, the witnesses at the trial of any action, or at any assessment of damages, shall be examined viva voce and in open court, but the Court may, at any time for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court may think reasonable, or that any witness whose attendance in Court ought for some sufficient cause to be dispensed with be examined by interrogatories or otherwise before a commissioner or examiner; provided that, where it appears to the Court that the other party, bona fide, desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

2. An order to read evidence taken in another cause or matter shall not be necessary, but such evidence may, saving all just exceptions, be read on ex parte applications by leave of the Court, to be obtained at the time of making any such application, and in any other case, upon the party desiring to use such evidence giving two days previous notice to the other parties of his intention to read such evidence.

3. Attested copies of all documents filed in the High Court shall be admissible in evidence in all causes and matters and between all persons or parties to the same extent as the originals would be admissible.

II. Examination of witnesses.

4. The Court may, in any cause or matter where it shall appear necessary, make any order for the examination upon oath before the Court, or any officer of the Court, or any other person, and at any place, of any witness, and may allow the deposition of such witness to be adduced in evidence on such terms (if any) as the Court may direct.

5. (1) If in any case the Court shall so order, there shall be issued a request to examine witnesses in lieu of a commission; the forms Nos. 1 and 3 in Appendix D, Part II, shall be used for such order and request, respectively.

(2) Where an order is made for the issue of a request to examine a witness or witnesses in any foreign country, with which a convention in that behalf has been or shall be made, the following procedure shall be adopted:—

( a ) the party obtaining such order shall file in the Central Office an undertaking in the Form No. 2 in Appendix D, Part II.

( b ) such undertaking shall be accompanied by—

(i) a request in the Form No. 3 in Appendix D, Part II, with such variations as may be directed in the order for the issue thereof, together with a translation of such request into the language of the country in which the same is to be executed;

(ii) a copy of the interrogatories (if any) to accompany the request and a translation thereof;

(iii) a copy of the cross-interrogatories (if any) and a translation thereof.

(3) Where an order is made for the examination of a witness or witnesses before the Irish Consular authority in any foreign country with which a convention in that behalf has been or shall be made, such order shall be in the Form No. 4 in Appendix D, Part II.

6. The Court may in any cause or matter, at any stage of the proceedings, order the attendance of any person for the purpose of producing any writings or other documents named in the order which the Court may think fit to be produced; provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial.

7. Any person wilfully disobeying any order requiring his attendance for the purpose of being examined or producing any document, shall be deemed guilty of contempt of Court, and may be dealt with accordingly.

8. Any person required to attend for the purpose of being examined, or of producing any document, shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in Court.

9. Where any witness or person is ordered to be examined before any officer of the Court, or before any person appointed for the purpose, the person taking the examination shall be furnished by the party on whose application the order was made with a copy of the summons, and pleadings, if any, or with a copy of the documents necessary to inform the person taking the examination of the questions at issue between the parties.

10. The examination shall take place in the presence of the parties, their counsel, solicitors, or agents, and the witnesses shall be subject to cross-examination and re-examination.

11. The depositions taken before an officer of the Court, or before any other person appointed to take the examination, shall be taken down in writing by or in the presence of the examiner, so as to represent as nearly as may be the statement of the witness, and when completed shall be read over to the witness and signed by him in the presence of the parties, or such of them as may think fit to attend. If the witness shall refuse to sign the depositions, the examiner shall sign the same. The examiner may put any question to the witness as to the meaning of any answer, or as to any matter arising in the course of the examination. Any questions which may be objected to shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the counsel, solicitors, or parties, and shall refer to such statement in the depositions, but he shall not have power to decide upon the materiality or relevancy of any question.

12. If any person duly summoned by subpoena to attend for examination shall refuse to attend, or if having attended, he shall refuse to be sworn or to answer any lawful question, a certificate of such refusal, signed by the examiner, shall be filed in the Central Office, and thereupon the party requiring the attendance of the witness may apply to the Court ex parte or on the notice for an order directing the witness to attend, or to be sworn, or to answer any question, as the case may be.

13. If any witness shall object to any question which may be put to him before an examiner, the question so put, and the objection of the witness thereto, shall be taken down by the examiner, and transmitted by him to the Central Office to be there filed, and the validity of the objection shall be decided by the Court.

14. In any case under rules 12 and 13, the Court shall have power to order the witness to pay any costs occasioned by his refusal or objection.

15. When the examination of any witness before any examiner shall have been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the Central Office, and there filed.

16. The person taking the examination of a witness under this Order may, and if need be shall make, a special report to the Court touching such examination, and the conduct or absence of any witness or other person thereon, and the Court may direct such proceedings and make such order as upon the report it may think just.

17. Except where by this Order otherwise provided or directed by the Court no deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same may be offered, unless the Court is satisfied that the deponent is dead, or beyond the jurisdiction of the Court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence saving all just exceptions without proof of the signature to such certificate.

18. Any officer of the Court or other person, directed to take the examination of any witness or person, may administer oaths.

19. Any party in any cause or matter may by subpoena ad testificandum or duces tecum require the attendance of any witness before an officer of the Court, or other person appointed to take the examination, for the purpose of using his evidence upon any proceeding in the cause or matter in like manner as such witness would be bound to attend and be examined at the hearing or trial; and any party or witness having made an affidavit to be used or which shall be used on any proceeding in the cause or matter shall be bound on being served with such subpoena to attend before such officer or person for cross-examination.

20. Evidence taken subsequently to the hearing or trial of any cause or matter shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial.

21. The practice with reference to the examination, cross-examination, and re-examination of witnesses at a trial shall extend and be applicable to evidence taken in any cause or matter at any stage.

22. The practice of the Court with respect to evidence at a trial, when applied to evidence to be taken before an officer of the Court or other person in any cause or matter after the hearing or trial, shall be subject to any special directions which may be given in any case.

23. No affidavit or deposition filed or made before issue joined in any cause or matter shall without special leave of the Court be received at the hearing or trial thereof, unless within one month after issue joined or within such longer time as may be allowed by special leave of the Court, notice in writing shall have been given by the party intending to use the same to the opposing party of his intention in that behalf.

24. All evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter.

III. Subpoena.

25. Where it is intended to apply for the issue of a subpoena, a praecipe for that purpose, in the Form No. 1 in Appendix D, Part I, and containing the name or firm and the registered place of business of the solicitor so applying, shall in all cases be delivered and filed at the Central Office.

26. A subpoena shall be in one of the Forms Nos. 2 to 5 in Appendix D, Part I.

27. A subpoena for the attendance of a witness before the Master or the Examiner may issue from the Central Office upon a note from the Master or Examiner as the case may be.

28. Every subpoena other than a subpoena duces tecum shall contain three names where necessary or required, but may contain any larger number of names.

29. No more than three persons shall be included in one subpoena duces tecum, and the party applying for the same shall be at liberty to apply for a subpoena for each person if it shall be deemed necessary or desirable.

30. No subpoena shall issue for the production of any record in the custody of the Paymaster-General, or other officer of the State, without an order of the Court; and such officer having the custody of any such record shall not be obliged to remove the same under such order from the depository where same is placed without such order, to be served upon him with the subpoena duces tecum.

31. Any officer of the Court required to attend with any record or document at any court or place, elsewhere than in Dublin, shall be entitled to require that the solicitor or party desiring his attendance shall deposit with him a sufficient sum of money to answer his just fees, charges and expenses, in respect of such attendance, and undertake to pay any further just fees, charges, and expenses which may not be fully answered by such deposit.

32. In the interval between the issue and service of any subpoena the party applying for the same may correct any error in the names of parties or witnesses, and may have it re-sealed upon leaving a corrected praecipe for such subpoena marked with the words "altered and re-sealed" and signed with the name and registered place of business of the solicitor applying.

33. The service of a subpoena shall be effected by delivering a copy thereof, indorsed with the name and address of the solicitor or party issuing the same, and at the same time producing the original.

34. The service of any subpoena shall be of no validity if not made within twelve weeks after its date.

IV. Perpetuating testimony.

35. Any person who would under the circumstances alleged by him to exist become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which cannot by him be brought to trial before the happening of such event, may commence an action to perpetuate any testimony which may be material for establishing such right or claim.

36. In all actions to perpetuate testimony touching any honour, title, dignity, or office, or any other matter or thing in which the State may have any estate or interest, the Attorney General may be made a defendant, and in all proceedings in which the depositions taken in any such action, in which the Attorney General was so made a defendant, may be offered in evidence, such depositions shall be admissible notwithstanding any objection to such depositions upon the ground that the State was not a party to the action in which such depositions were taken.

37. Witnesses shall not be examined to perpetuate testimony unless an action has been commenced for the purpose.

38. No action to perpetuate the testimony of witnesses shall be set down for trial.

V. Obtaining evidence for foreign tribunals.

39. Where under the Foreign Tribunals Evidence Act, 1856, or the Extradition Act, 1870, section 24, any civil or commercial matter, or any criminal matter, is pending before a court or tribunal of a foreign country, and it is made to appear to the Court, by commission rogatoire, or letter of request or other evidence as hereinafter provided, that such court or tribunal is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction, the Court may, on the ex parte application of any person shown to be duly authorised to make the application on behalf of such foreign court or tribunal, and on production of the commission rogatoire, or letter of request, or other evidence pursuant to the Foreign Tribunals Evidence Act, 1856, section 2, or such other evidence as the Court may require, make such order or orders as may be necessary to give effect to the intention of the Acts above mentioned in conformity with the Foreign Tribunals Evidence Act, 1856, section 1.

40. An order made under rule 39 shall be in the Form No. 1 in Appendix D, Part III.

41. The examination may be ordered to be taken before any fit and proper person nominated by the person applying, or before one of the officers of the Court, or such other qualified person, as to the Court may seem fit.

42. (1) Unless otherwise provided in the order for examination, the person before whom the examination is taken shall, on its completion forward the same to the Master, and on receipt thereof the Master shall append thereto a certificate, in the Form No. 2 in Appendix D, Part III, duly certified for use out of the jurisdiction and shall forward the depositions so certified, and the commission rogatoire or letter of request (if any) to the Minister for Foreign Affairs for transmission to the foreign court or tribunal requiring the same.

(2) Where the foreign court or tribunal so desires, the deposition shall be sent direct by the Master to the Consul or other official of the foreign government in Ireland for transmission to the foreign court or tribunal.

43. An order made under rule 39 may direct the said examination to be taken in such manner as may be requested by the commission rogatoire or letter of request from the foreign court or tribunal, or therein signified to be in accordance with the practice or requirements of such court or tribunal, or which may, for the same reason, be requested by the applicant for such order. In the absence of any such special directions being given in the order for examination, the same shall be taken in the manner prescribed in Part II of this Order.

44. Where a commission rogatoire, or letter of request, as mentioned in rule 39, is transmitted to the Chief State Solicitor by the Minister for Foreign Affairs with an intimation that it is desirable that effect should be given to the same without requiring an application to be made to the Court by the agents in Ireland of any of the parties to the action or matter in the foreign country, the Chief State Solicitor may make such applications and take such steps as may be necessary to give effect to such commission rogatoire, or letter of request, in accordance with rules 39 to 43 (inclusive).

ORDER 40. AFFIDAVITS.

I. General.

1. Upon any petition, motion, or other application, evidence may be given by affidavit, but the Court may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit.

2. Save as otherwise provided by these Rules, all affidavits shall be filed in the Central Office. Affidavits used in proceedings to make a minor a ward of Court shall be filed in the Office of Wards of Court. Affidavits used in matters of bankruptcy, arrangement, or insolvency, shall be filed in the Examiner's Office. Affidavits used in non-contentious probate matters shall be filed in the Probate Office.

3. Every affidavit shall be entitled in the cause or matter in which it is sworn; but in every case in which there are more than one plaintiff or defendant, it shall be sufficient to state the full name of the first plaintiff or defendant, respectively, and that there are other plaintiffs or defendants as the case may be; and the costs occasioned by any unnecessary prolixity in any such title shall be disallowed by the Taxing Master.

4. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, and shall state his means of knowledge thereof, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of any affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall not be allowed.

5. Affidavits sworn in Ireland shall be sworn before a judge, commissioner to administer oaths, or officer empowered to administer oaths,

6. Every commissioner to administer oaths shall express the time when and the place where he shall take any affidavit, or the acknowledgment of any deed, or recognisance, otherwise the same shall not be held authentic, nor be admitted to be filed or enrolled without the leave of the Court; and every such commissioner shall express the time when, and the place where, he shall do any other act incident to his office.

7. All examinations, affidavits, declarations, affirmations and attestations of honour in causes or matters pending in the High Court or the Supreme Court, and also acknowledgments required for the purpose of enrolling any deed in the said Courts, may be taken in any foreign country or place before any Irish diplomatic or consular representative or agent exercising his functions in that country or place or, when there is no such representative or agent or no such representative or agent conveniently near to the deponent in such country or place, before any notary public lawfully authorised to administer oaths in that country or place, or where such country or place is a part of the British Commonwealth of Nations or a British possession, before any judge, court, notary public or person authorised to administer oaths in such part or possession; and the Judges and officers of the High Court and of the Supreme Court shall take judicial notice of the seal or signature, as the case may be, of any such diplomatic or consular representative or agent, judge, court, notary public or other person attached, appended or subscribed to any such examination, affidavit, declaration, affirmation, attestation of honour, or acknowledgment, or to any other deed or document.

8. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject matter. Every affidavit shall be written or printed bookwise. No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this rule.

9. Every affidavit shall state the description and true place of abode of the deponent; and every affidavit of service shall state when, where, and how, and by whom, such service was effected and in the case of delivery to any person, shall state that the deponent was at the time of such delivery acquainted with the appearance of such person.

10. In every affidavit made by two or more deponents the names of the several persons making the affidavit shall be inserted in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both (or all) of the "above-named deponents".

11. There shall be on every affidavit a note showing on whose behalf it is filed, and no affidavit shall be filed or used without such note, unless the Court shall otherwise direct.

12. The Court may order to be struck out from any affidavit any matter which is scandalous, and may order the costs of any application to strike out such matter to be paid as between solicitor and client.

13. No affidavit having in the jurat or body thereof any interlineation, alteration, or erasure, shall without leave of the Court be filed, read, or made use of in any matter pending in Court unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the person taking the affidavit, nor, in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re-written and signed or initialled in the margin of the affidavit by the person taking it.

14. All persons taking affidavits shall certify, in the jurat of every affidavit taken by them either that they know the deponent himself, or some person named in the jurat who certifies his knowledge of the deponent. Where an affidavit is sworn by any person who appears to the officer taking the affidavit to be illiterate or blind, the officer shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature or mark in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent.

15. The Court may receive any affidavit sworn for the purpose of being used in any cause or matter notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received.

16. ( a ) In cases in which an original affidavit is allowed to be used it shall, at the time when it is used, be delivered to and left with the proper officer who shall send it to be filed.

( b ) A copy of an affidavit may in all cases be used, the original affidavit having been previously filed, and the copy duly attested.

( c ) A photostatic copy of an original affidavit which has been filed may be used, if certified by the solicitor who has filed the same to be a true copy thereof and that the original thereof has been filed.

17. No affidavit shall be sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent or correspondent of such solicitor or before the party himself.

18. Any affidavit which would be insufficient if sworn before the solicitor himself shall be insufficient if sworn before his clerk or partner.

19. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Court.

20. Except by leave of the Court no order made ex parte in Court founded on any affidavit shall be of any force unless the affidavit on which the application was made was actually made before the order was applied for, and produced or filed at the time of making the application.

21. Where an injunction or order not to leave the jurisdiction has been granted or made, the party applying for such injunction or order shall furnish copies of the affidavits grounding the same to any party affected thereby upon demand and payment therefor at the rate specified in Order 117.

22. The consent of a trustee to act shall be sufficiently evidenced by a written consent signed by him and verified by the signature of his solicitor or the applicant's solicitor.

II. Affidavits and evidence before the Master or the Examiner.

23. The party intending to use any affidavit in support of any application made before the Master or before the Examiner shall give notice to the other parties concerned of his intention in that behalf.

24. All affidavits which have been previously made and read in Court upon any proceeding in a cause or matter may be used before the Master or the Examiner.

25. Every alteration in an account verified by affidavit to be used before the Master or before the Examiner shall be marked with the initials of the person before whom the affidavit is sworn, and such alterations shall not be made by erasure.

26. Accounts, extracts from parish registers, particulars of creditors' debts, and other documents referred to by affidavit shall not be annexed to the affidavit, or referred to in the affidavit as annexed, but shall be referred to as exhibits.

27. Every certificate on an exhibit referred to in an affidavit signed by the person before whom the affidavit is sworn shall be marked with the short title of the cause or matter.

III. Trial on affidavit.

28. Within fourteen days after a consent for taking evidence by affidavit as between the parties has been given, or after an order has been made for such purpose, or within such time as the parties may agree upon, or the Court may allow, the plaintiff shall file his affidavits and deliver to the defendant or his solicitor a list thereof.

29. The defendant, within fourteen days after delivery of such list, or within such time as the parties may agree upon, or the Court may allow, shall file his affidavits, and deliver to the plaintiff or his solicitor a list thereof.

30. Within seven days after the expiration of the last-mentioned fourteen days, or such other time as aforesaid, the plaintiff shall file his affidavits in reply, which affidavits shall be confined to matters strictly in reply, and shall deliver to the defendant or his solicitor a list thereof.

31. When the evidence is taken by affidavit, any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing, requiring the production of the deponent for cross-examination at the trial, such notice to be served at any time before the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the Court may specially appoint; and unless such deponent is produced accordingly, his affidavit shall not be used as evidence unless by the leave of the Court. The party producing such deponent for cross-examination shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production. The notice shall be in the Form No. 21 in Appendix C.

32. The party to whom such notice as is mentioned in rule 31, is given shall be entitled to compel the attendance of the deponent for cross-examination in the same way as he might compel the attendance of a witness to be examined.

33. When the evidence under this Order is taken by affidavit, the notice of trial shall be given at the same time after the expiry of the time limited by rule 29 as is by these Rules provided after the close of the pleadings; provided that other affidavits may be used if all the parties interested consent thereto, or the Court so orders.

ORDER 41. MOTION FOR JUDGMENT AND ENTRY OF JUDGMENT.

1. Except where by the Acts or by these Rules it is provided that judgment may be obtained in any other manner, the judgment of the Court shall be obtained by motion for judgment.

2. Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, the plaintiff, including the plaintiff in a counter-claim, may set down a motion for judgment as soon as such issues or questions have been determined. If he does not set down such a motion, and give notice thereof to the other parties within ten days after his right so to do has arisen, then after the expiration of such ten days any defendant, including the defendant in a counter-claim, may set down a motion for judgment, and give notice thereof to the other parties.

3. Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, and some only of such issues or questions of fact have been tried or determined, any party who considers that the result of such trial or determination renders the trial or determination of the others of them unnecessary, or renders it desirable that the trial or determination thereof should be postponed, may apply to the Court for leave to set down a motion for judgment, without waiting for such trial or determination; and the Court may, if satisfied of the expediency thereof, give such leave, upon such terms, if any, as shall appear just, and may give any directions which may appear desirable as to postponing the trial of the other issues of fact.

4. No motion for judgment shall, except by leave of the Court, be set down after the expiration of one year from the time when the party seeking to set down the same first became entitled so to do.