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SUPREME COURT
(CHAPTER 5)
RULES OF THE SUPREME COURT
S 5/90
Amended by
S 23/90
S 14/91
S 30/91
S 35/92
S 41/92
S 28/96
S 7/99
S 8/99
S 37/99
S 31/00
S 77/00
S 92/00
REVISED EDITION 2001
(31st January 2001)
SUBSIDIARY LEGISLATION
RULES OF THE SUPREME COURT
ARRANGEMENTS OF ORDERS, RULES AND LIST OF FORMS
Rule
ORDER 1
CITATION, APPLICATION, INTERPRETATION AND FORMS
1. Citation.
2. Application.
3. Application of Chapter 4.
4. Definitions.
5. Construction of references to Orders, rules etc.
6. Forms.
7. Business by post, fax or electronic mail.
ORDER 2
EFFECT OF NON-COMPLIANCE
1. Non-compliance with rules.
2. Application to set aside for irregularity.
ORDER 3
TIME
1. “Month” means calendar month.
2. Reckoning periods of time.
3. Time expires on weekly holiday etc.
4. Extension etc. of time.
5. Notice of intention to proceed after year’s delay.
ORDER 4
CONSOLIDATION PROCEEDINGS
1. Consolidation etc. of causes or matters.
ORDER 5
MODE OF BEGINNING CIVIL PROCEEDING IN HIGH COURT
1. Mode of beginning civil proceedings.
2. Proceedings which must be begun by writ.
3. Proceedings which must be begun by originating summons.
4. Proceedings which may be begun by writ or originating summons.
5. Proceedings to be begun by motion or petition.
6. Right to sue in person.
ORDER 6
WRITS OF SUMMONS: GENERAL PROVISIONS
1. Form of writ.
2. Indorsement of claim.
3. Indorsement as to capacity.
4. Indorsement as to solicitor and address.
5. Concurrent writ.
6. Issue of writ.
7. Duration and renewal of writ.
ORDER 7
ORIGINATING SUMMONSES: GENERAL PROVISIONS
1. Application.
2. Form of summons etc.
3. Contents of summons.
4. Concurrent summons.
5. Issue of summons.
6. Duration and renewal of summons.
7. Ex parte originating summons.
ORDER 8
ORGINATING AND OTHER MOTIONS: GENERAL PROVISIONS
1. Application.
2. Notice of motion.
3. Form and issue of notice of motion.
4. Service of notice of motion with writ etc.
5. Adjournment of hearing.
ORDER 9
PETITIONS: GENERAL PROVISIONS
1. Application.
2. Contents of petition.
3. Fixing time for hearing petition.
4. Certain applications not to be made by petition.
ORDER 10
SERVICE OF ORIGINATING PROCESS: GENERAL PROVISIONS
1. General provisions.
2. Service of writ on agent of overseas principal.
3. Service of writ in pursuance of contract.
4. Service of writ in certain actions for possession of immovableproperty.
5. Service of originating summons, petition and notice of motion.
ORDER 11
SERVICE OF PROCESS ETC. OUT OF THE JURISDICTION
1. Principal cases in which service of notice of writ out ofjurisdiction is permissible.
2. Service out of the jurisdiction in certain actions of contract.
3. Leave for service of notice of writ.
4. Application for, and grant of, leave to serve notice of writ out ofjurisdiction.
5. Service of notice of writ abroad: General.
6. Service of notice of writ abroad through foreign governments,judicial authorities and Bruneian consuls.
7. Service of notice of writ in certain actions under certain writtenlaw.
8. Undertaking to pay expenses of service incurred by Minister.
9. Service of originating summons, petition, notice of motion etc.
ORDER 12
ENTRY OF APPEARANCE TO WRIT OR ORIGINATING SUMMONS
1. Mode of entering appearance.
2. Memorandum of appearance.
3. Procedure on receipt of requisite documents.
4. Time limited for appearing.
5. Late appearance.
6. Conditional appearance.
7. Application to set aside writ etc.
8. Appearance to originating summons.
ORDER 13
DEFAULT OF APPEARANCE TO WRIT
1. Claim for liquidated demand.
2. Claim for unliquidated damages.
3. Claim in detinue.
4. Claim for possession of immovable property.
5. Mixed claims.
6. Other claims.
7. Proof of service of writ.
8. Setting aside judgment.
ORDER 14
SUMMARY JUDGMENT
1. Application by plaintiff for summary judgment.
2. Manner in which application under rule 1 must be made.
3. Judgment for plaintiff.
4. Leave to defend.
5. Application for summary judgment on counter-claim.
6. Directions.
7. Costs.
8. Right to proceed with residue of action or counter-claim.
9. Judgment for delivery up of movable property.
10. Relief against forfeiture.
11. Setting aside judgment.
ORDER 14A
DETERMINATION OF LAW OR CONSTRUCTION
1. Question of law.
2. Application.
ORDER 15
CAUSES OF ACTION, COUNTER-CLAIMS AND PARTIES
1. Joinder of causes of action.
2. Counter-claim against plaintiff.
3. Counter-claim against additional parties.
4. Joinder of parties.
5. Court may order separate trials etc.
6. Misjoinder and non-joinder of parties.
6A. Proceedings against estates.
7. Change of parties by reason of death etc.
8. Provisions consequential on making of order under rule 6 or 7.
9. Failure to proceed after death of party.
10. Action for possession of immovable property.
11. Relator actions.
12. Representative proceedings.
13. Representation of interested persons who cannot be ascertainedetc.
14. Representation of beneficiaries by trustees etc.
15. Representation of deceased person interested in proceedings.
16. Declaratory judgment.
17. Conduct of proceedings.
ORDER 16
THIRD PARTY AND SIMILAR PROCEEDINGS
1. Third party notice.
2. Application for leave to issue third party notice.
3. Issue and service of, and entry of appearance to third partynotice.
4. Third party directions.
5. Default of third party etc.
6. Setting aside third party proceedings.
7. Judgment between defendant and third party.
8. Claims and issues between a defendant and some other party.
9. Claims by third and subsequent parties.
10. Offer of contribution.
11. Counter-claim by defendant.
ORDER 17
INTERPLEADER
1. Entitlement to relief by way of interpleader.
2. Claim to goods etc. taken in execution.
3. Mode of application.
4. Service of summons.
5. Powers of Court hearing summons.
6. Power to order sale of goods taken in execution.
7. Power to stay proceedings.
8. Other powers.
9. One order in several causes or matters.
10. Discovery.
11. Trial of interpleader issue.
ORDER 18
PLEADINGS
1. Service of statement of claim.
2. Service of defence.
3. Service of reply and defence to counter-claim.
4. Pleadings subsequent to reply.
5. Pleadings: Formal requirements.
6. Facts, not evidence, to be pleaded.
7. Matters which must be specifically pleaded.
7A. Conviction.
8. Matter may be pleaded whenever arising.
9. Departure.
10. Points of law may be pleaded.
11. Particulars of pleading.
12. Admissions and denials.
13. Denial by joinder of issue.
14. Statement of claim.
15. Defence of tender.
16. Defence of set-off.
17. Counter-claim and defence to counter-claim.
18. Striking out pleadings and indorsements.
19. Close of pleadings.
20. Filing of pleadings.
21. Trial without pleadings.
22. Saving for defence under Merchant Shipping Act.
ORDER 19
DEFAULT OF PLEADINGS
1. Default in service of statement of claim.
2. Default of defence: Claim for liquidated demand.
3. Default of defence: Claim for unliquidated damages.
4. Default of defence: Claim in detinue.
5. Default of defence: Claim for possession of immovable property.
6. Default of defence: Mixed claim.
7. Default of defence: Other claims.
8. Default of defence to counter-claim.
9. Setting aside judgment.
ORDER 20
AMENDMENT
1. Amendment of writ without leave.
2. Amendment of appearance.
3. Amendment of pleadings without leave.
4. Application for disallowance of amendment made without leave.
5. Amendment of writ or pleading with leave.
6. Amendment of other originating process.
7. Amendment of certain other documents.
8. Failure of amend after order.
9. Mode of amendment of writ etc.
10. Amendment of judgment and orders.
11. Amendment of agreement.
ORDER 21
WITHDRAWAL AND DISCONTINUANCE
1. Withdrawal of appearance.
2. Discontinuance of action etc. without leave.
3. Discontinuance of action etc. with leave.
4. Effect of discontinuance.
5. Stay of subsequent action until costs paid.
6. Withdrawal of summons.
ORDER 22
PAYMENT INTO AND OUT OF COURT
1. Payment into Court.
2. Payment in by defendant who has counterclaim.
3. Acceptance of money paid into Court.
4. Order for payment out of money accepted required in certaincases.
5. Money remaining in Court.
6. Counterclaim.
7. Non-disclosure of payment into Court.
8. Money paid into Court under Order.
9. Payment out of money paid into Court under Exchange ControlAct.
10. Person to whom payment to be made.
11. Payment out: Small Intestate Estates.
12. Payment of hospital expenses.
13. Written offers without prejudice save as to costs.
ORDER 22A
OFFER TO SETTLE
1. Offer to settle.
2. Timing.
3. Acceptance.
4. Without prejudice.
5. Non-disclosure.
6. Acceptance.
7. Disability.
8. Compliance.
9. Costs.
10. Joint and several liability.
11. Offer to contribute.
12. Discretion of Court.
13. Counter-claims and third party claims.
ORDER 23
SECURITY FOR COSTS
1. Security for costs of action etc.
2. Manner of giving security.
3. Saving for written law.
ORDER 24
DISCOVERY AND INSPECTION OF DOCUMENTS
1. Mutual discovery of documents.
2. Discovery by parties without Order.
3. Order for discovery.
4. Order for determination of issue etc. before discovery.
5. Form of list and affidavit.
6. Defendant entitled to copy of co-defendant’s list.
7. Order for discovery of particular documents.
7A. Disclosure by non-parties.
7B. Disclosure in cases of personal injury or death.
7C. Provisions supplementary to rules 7A and 7B.
7D. Application under rule 7A or 7B.
8. Discovery to be ordered only if necessary.
9. Inspection of documents referred to in list.
10. Inspection of documents referred to in pleadings andaffidavits.
11. Order for production for inspection.
11A. Copies of documents.
12. Order for production to Court.
13. Production to be ordered only if necessary etc.
14. Production of business books.
14A. Use of documents.
15. Document disclosure of which would be injurious to publicinterest: Saving.
16. Failure to comply with requirement for discovery etc.
17. Revocation and variation of Orders.
ORDER 25
SUMMONS FOR DIRECTIONS
1. Summons for directions.
2. Duty to consider all matters.
3. Particular matters for consideration.
4. Admissions and agreements to be made.
5. Limitation of right of appeal.
6. Duty to give all information at hearing.
7. Duty to make all interlocutory applications on summons fordirections.
8. Automatic direction in personal injury action.
ORDER 26
INTERROGATORIES
1. Discovery by interrogatories.
2. Discovery by interrogatories without leave of Court.
3. Interrogatories where party is a body of persons.
4. Statement as to party etc. required to answer.
5. Objection to answer on ground of privilege.
6. Insufficient answer.
7. Failure to comply with Order.
8. Use of answers to interrogatories at trial.
9. Revocation and variation of Orders.
ORDER 27
ADMISSIONS
1. Admission of case of other party.
2. Notice to admit facts.
3. Judgment on admission of facts.
4. Admission and production of documents specified in list ofdocuments.
5. Notices to admit or produce documents.
ORDER 28
ORGINATING SUMMONS PROCEDURE
1. Application.
1A. Affidavit evidence.
2. Fixing time for attendance of parties before Court.
3. Notice of first hearing etc.
4. Directions etc. by Court.
5. Adjournment of summons.
6. Applications affecting party in default of appearance.
7. Counter-claim by defendant.
8. Continuation of proceedings as if cause or matter begun bywrit.
9. Order for hearing or trial.
10. Failure to prosecute proceedings with despatch.
11. Abatement etc. of action.
ORDER 29
PART I
INTERLOCUTORY INJUNCTIONS, INTERIM PRESERVATION OF PROPERTY ETC.
1. Application for injunction.
1A. Cross examination as to assets.
2. Detention, preservation etc. of subject matter of cause ormatter.
3. Power to order samples to be taken etc.
4. Sale of perishable property etc.
5. Order for early trial.
6. Recovery of movable property subject to lien etc.
7. Directions.
7A. Property.
8. Allowance of income of properly pendente lite .
9. Injunctions.
PART II
INTERIM PAYMENTS
10. Interpretation of Part II.
11. Application for interim payment.
12. Order for interim payment in respect of damages.
13. Order for interim payment in respect of sums other thandamages.
14. Manner of interim payment.
15. Directions on application under rule 11.
16. Non-disclosure of interim payment.
17. Payment into Court in satisfaction.
18. Adjustment on final judgment or order or on discontinuance.
19. Counter-claim and other proceedings.
ORDER 30
RECEIVERS
1. Application for receiver and injunction.
2. Giving of security by receiver.
3. Remuneration of receiver.
3A. Service.
4. Receiver’s account.
5. Payment of balance etc. by receiver.
6. Default by receiver.
7. Directions.
ORDER 31
SALES ETC. OF IMMOVABLE PROPERTY BY ORDER OF COURT
1. Power to order sale of immovable property.
2. Manner of carrying out sale.
3. Certifying result of sale.
4. Charge, exchange or partition under order of the Court.
5. Reference of matters to a solicitor.
6. Objection to opinion of solicitor.
ORDER 32
APPLICATION AND PROCEEDINGS IN CHAMBERS
1. Mode of making application.
2. Issue of summons.
3. Service of summons.
4. Adjournment of hearing.
5. Proceeding in absence of party failing to attend.
6. Order make ex parte may be set aside.
7. Revoked .
8. Application for leave to institute certain proceedings.
9. Jurisdiction of Registrar.
10. Reference of matter to Judge.
11. Power to direct hearing in Court.
12. Obtaining assistance of experts.
13. Notice of filing etc. of affidavit.
14. Disposal of matters in Chambers.
15. Papers for use of Court etc.
16. Uncontested chamber applications.
17. Notes of proceedings in Chambers.
ORDER 33
MODE OF TRIAL
1. Mode of trial.
2. Time etc. at trial of questions or issues.
3. Determining the mode of trial.
4. Dismissal of action etc. after decision of preliminary issue.
4A. Split trial offer on liability.
ORDER 34
SETTING DOWN FOR TRIAL ACTION BEGUN BY WRIT
1. Application and interpretation.
2. Time for setting down action.
3. Lodging documents when setting down.
4. Directions relating to lists.
5. Notification of setting down.
6. Abatement etc. of action.
7. Notice of trial.
8. Notice of trial by defendant. Application to dismiss for want ofprosecution.
9. The Court bundle.
10. Parties to appear by special notice.
ORDER 34A
PRE-TRIAL CONFERENCES
1. Power to make orders.
2. Directions as to pre-trial conferences.
3. Notification.
4. Attendance.
5. Adjournments.
6. Failure to appear.
7. Non-disclosure.
ORDER 35
PROCEEDINGS AT TRIAL
1. Failure to appear by both parties or one of them.
2. Judgment etc. given in absence of party may be set aside.
3. Adjournment of trial.
4. Order of speeches.
5. Inspection by Judge.
6. Death of party before giving of judgment.
7. Entries to be made by Registrar or proper officer of the Court.
8. List of exhibits.
9. Custody of exhibit after trial.
10. Impounded documents.
11. Continuation of trial by another Judge.
ORDER 36
TRIALS BEFORE AND INQUIRIES BY REGISTRAR
1. Power to order trial before Registrar.
2. Trial before, and inquiry by Registrar.
ORDER 37
ASSESSMENT OF DAMAGES
1. Assessment of damages by Registrar.
2. Certificate of amount of damages.
3. Default judgment against some but not all defendants.
4. Power to order Assessment by Registrar or at trial.
5. Assessment of value.
6. Assessment of damages to time of assessment.
7. Application of rules 7 to 10.
8. Provisional damages.
9. Offer to submit.
10. Application for further damages.
ORDER 38
EVIDENCE
PART I
GENERAL EVIDENCE
1. General rule: Witness to be examined orally.
2. Evidence by affidavit.
2A. Exchange of witness statements.
3. Evidence of particular facts.
4. Limitation of expert evidence.
5. Limitation of plans etc. in evidence.
6. Expert evidence in action arising out of accident.
7. Revocation or variation of orders under rules 2 to 6.
8. Application to trials of issues, references etc.
9. Depositions: when receivable in evidence at trial.
10. Court documents admissible or receivable in evidence.
11. Evidence of consent of new trustee to act.
12. Evidence at trial may be used in subsequent proceedings.
13. Order to produce document at proceeding other than trial.
14. Form and issue of writ of subpoena.
15. More than one name may be included in one writ of subpoena adtestificandum .
16. Writ of subpoena duces tecum .
17. Amendment of writ of subpoena.
18. Service of writ of subpoena.
19. Duration of writ of subpoena.
20. Court records.
21. Attendance of prisoner as witness or party.
22. Tender of expenses.
23. Affidavit of service of writ of subpoena.
PART II
HEARSAY EVIDENCE
24. Interpretation.
25. Hearsay notices.
26. Cross examination on hearsay evidence.
27. Credibility.
28. Jurisdiction.
PART III
EXPERT EVIDENCE
29. Interpretation.
30. Restrictions on expert evidence.
31. Direction that report be disclosed.
32. Meeting of experts.
33. Disclosure of part of expert evidence.
34. Expert evidence contained in statement.
35. Expert report disclosed by another party.
36. Time for putting expert report in evidence.
37. Revocation and variation of directions.
ORDER 39
EVIDENCE BY DEPOSITION: EXAMINERS OF THE COURT
1. Power to order depositions to be taken.
2. Where person to be examined is out of the jurisdiction.
3. Order for issue of letter of request.
3A. Examination not on oath.
4. Enforcing attendance of witness at examination.
5. Refusal of witness to attend, be sworn etc.
6. Appointment of time and place for examination.
7. Examiner to have certain documents.
8. Conduct of examination.
9. Examination of additional witnesses.
10. Objection to questions.
11. Taking of depositions.
12. Time taken by examination to be indorsed on depositions.
13. Special report by examiner.
14. Order for payment of examiner’s fees.
15. Perpetuation of testimony.
ORDER 40
COURT EXPERT
1. Appointment of expert to report on certain question.
2. Report of court expert.
3. Experiments and tests.
4. Cross-examination of court expert.
5. Remuneration of court expert.
6. Calling of expert witnesses.
ORDER 41
AFFIDAVITS
1. Form of affidavit.
2. Affidavit by two or more deponents.
3. Affidavit by illiterate or blind person.
4. Use of defective affidavit.
5. Contents of affidavit.
6. Scandalous etc. matter in affidavits.
7. Alterations in affidavits.
8. Affidavit not to be sworn before solicitor of party etc.
9. Filing of affidavits.
10. Use of original affidavit or office copy.
11. Document to be used in conjunction with affidavit to be exhibitedto it.
12. Affidavit taken outside Brunei Darussalam admissible without proofof seal etc.
ORDER 42
JUDGMENTS AND ORDERS
1. Delivery of judgment.
2. Written judgment to be filed.
3. Judgment of absent Judge.
4. Entry of judgment in Cause Book.
5. Form of judgment etc.
6. Judgment etc. requiring act to be done: Time for doing it.
7. Date from which judgment or order takes effect.
8. Preparation of judgment or order.
9. Orders required to be drawn up.
10. Drawing up and entry of judgments and orders.
11. Duplicates of judgments and orders.
12. Interest on judgment debts.
13. Interest on debts and damages.
ORDER 43
ACCOUNTS AND INQUIRIES
1. Summary order for account.
2. Court may direct taking of accounts etc.
3. Directions as to manner of taking account.
4. Account to be made, verified etc.
5. Notice to be given of alleged commissions etc. in account.
6. Allowances.
7. Delay in prosecution of accounts etc.
8. Distribution of fund before all persons entitled areascertained.
ORDER 44
PROCEEDINGS UNDER JUDGMENTS AND ORDERS ON THE EQUITY SIDE
1. Application to proceedings under an order.
2. Documents to be filed at registry: Summons to proceed.
3. Service of notice of judgment on person not a party.
4. Directions by Court.
5. Court may require parties to be represented by same solicitor.
6. Court may require parties to be represented by differentsolicitors.
7. Leave to attend proceedings etc.
8. Judgment requiring deed to be settled by Court: Directions.
9. Application of rules 10 to 17.
10. Advertisements for creditors and other claimants.
11. Failure to claim within specified time.
12. Examination etc. of claims.
13. Adjudication on claims.
14. Adjournment of adjudications.
15. Service of notice of judgment on certain claimants.
16. Notice etc. of claims allowed.
17. Service of notices.
18. Interest on debts.
19. Interest on legacies.
20. Determination by judge of question arising before Registrar.
21. Registrar’s certificate.
22. Settling and filing of Registrar’s certificate.
23. Discharge or variation of Registrar’s certificate.
24. Further consideration of cause or matter in Chambers.
25. Further consideration of cause or matter in Court.
ORDER 45
ENFORCEMENT OF JUDGMENTS AND ORDERS
1. Enforcement of judgment etc. for payment of money.
2. Judgment etc. for payment of money to person resident outside the scheduled territories.
3. Enforcement of judgment for possession of immovable property.
4. Enforcement of judgment for delivery of movable property.
5. Enforcement of judgment to do or abstain from doing an act.
6. Judgment etc. requiring act to be done: Order fixing time for doingit.
7. Service of copy of judgment etc. prerequisite to enforcement underrule 5.
8. Court may order act to be done at expense of disobedient party.
9. Execution by or against person not being a party.
10. Conditional judgment: Waiver.
11. Matter occurring after judgment: Stay of execution etc.
12. Forms of writs.
13. Enforcement of judgments and orders for recovery of money etc.
ORDER 46
WRITS OF EXECUTION: GENERAL
1. Definition.
2. When leave to issue any writ of execution is necessary.
3. Application for leave to issue writ.
4. Issue of writ of execution.
5. Writ and praecipe where Exchange Control Act applies.
6. Duration and renewal of writ of execution.
7. Fees, expenses etc. to be levied.
8. Costs of writ.
9. Satisfaction by consent.
10. Where consent refused.
11. Deposit costs of execution with Sheriff.
12. Where Sheriff in possession more than 14 days.
13. Proper officer to give receipt.
Duties of Sheriff
14. Time of lodgment to be forthwith indorsed on writ.
15. Time of execution.
16. Notice of seizure and inventory.
17. Proper officer to keep records and to prepare statement ofaccounts.
18. Sheriff to give information if required.
19. Date of arrest to be indorsed.
20. Sheriff may be required to show cause for neglect of duty.
21. Payment out.
Sale by Sheriff
22. Sheriff to sell.
23. Sale by public auction.
24. Where property exceeds $2,000 sale by licensed auctioneer.
25. Negotiable instruments.
26. Sheriff may execute or indorse documents.
27. Interpretation of terms.
ORDER 47
WRITS OF SEIZURE AND SALE
1. Power to stay execution by writ of seizure and sale.
2. Separate writs to enforce payment of costs etc.
3. Where landlord claims arrears of rent of premises where propertyseized.
4. After seizure, dealings with property void.
5. Withdrawal and suspension of writ.
6. Immovable property.
7. Sale of immovable property.
ORDER 48
EXAMINATION OF JUDGMENT DEBTOR ETC.
1. Order for examination of judgment debtor.
2. Examination of party liable to satisfy the judgment.
3. Registrar to make record of debtor’s statement.
ORDER 49
GARNISHEE PROCEEDINGS
1. Attachment of debt due to judgment debtor.
2. Application for order.
3. Service and effect of order to show cause.
4. No appearance or dispute of liability by garnishee.
5. Dispute of liability by garnishee.
6. Claims of third persons.
7. Judgment creditor resident outside scheduled territories.
8. Discharge of garnishee.
9. Money in Court.
10. Costs.
ORDER 50
CHARGING ORDERS, STOP ORDERS ETC.
1. (There is no rule 1).
2. Order imposing charge on securities.
3. Application for order under rule 2.
4. Service of notice of order to show cause.
5. Effect of order to show cause.
6. Making and effect of charging order absolute.
7. Discharge etc. of charging order.
8. Money in Court: Charging Order.
9. Registrar etc. may grant injunction ancillary to chargingorder.
9A. Enforcement of charging order by sale.
10. Securities not in Court: Stop notice.
11. Effect of stop notice.
12. Amendment of stop notice.
13. Withdrawal etc. of stop notice.
14. Order prohibiting transfer etc. of securities.
ORDER 51
RECEIVERS: EQUITABLE EXECUTION
1. Appointment of receivers by way of equitable execution.
2. Registrar may appoint receiver etc.
3. Application of rules as to appointment of receiver etc.
ORDER 51A
RATEABLE DISTRIBUTION
1. Proceeds of execution sale to be distributed rateably amongjudgment creditors.
2. Method of subsequent attachment.
3. Property attached in execution of order or judgment of severalcourts.
4. Immovable property.
ORDER 52
COMMITAL
1. Committal for contempt of court.
2. Application to court.
3. Application for order after leave to apply granted.
4. Saving for power to commit without application for purpose.
5. Provisions as to hearing.
6. Power to suspend execution of committal order.
7. Discharge of person committed.
8. Saving for other powers.
9. Form of warrant for committal.
10. Reference to High Court.
ORDER 53
APPLICATION FOR ORDER OF MANDAMUS, PROHIBITION, CERTIORARI ETC.
1. No application for order of mandamus etc. without leave.
1A. Time for applying for leave.
2. Mode of applying for order of mandamus etc.
3. Statements and affidavits.
4. Right to be heard in opposition.
5. Application for order of certiorari to quashproceedings.
6. Saving for person acting in obedience to mandamus.
7. Order made by Judge in Chambers may be set aside etc.
ORDER 54
APPLICATION FOR WRIT OF HABEAS CORPUS
1. Application for writ of habeas corpus ad subjiciendum .
2. Power of court to whom ex parte application made.
3. Copies of affidavits to be supplied.
4. Power to order release of person restrained.
5. Directions as to return of writ.
6. Service of writ and notice.
7. Return to the writ.
8. Procedure at hearing of writ.
9. Form of writ.
ORDER 55
APPEALS FROM SUBORDINATE COURTS AND STATUTORY BODIES
1. Entry of Appeal.
2. Memorandum of Appeal.
3. Notice of Cross-Appeal.
4. Amendments.
5. Appellant not appearing.
6. Withdrawal of appeal.
7. Notice of appeal by respondent where notice of appeal withdrawn orappeal not entered.
8. High Court may direct service of notice on person not served.
9. Interest.
10. Pronouncement of judgment.
11. Decision on appeal to be sent to Court below.
12. Stay of execution.
13. Appeal from persons or body of persons.
ORDER 56
APPEALS FROM REGISTRAR AND JUDGE
1. Appeal from certain decisions of Registrar to Judge inChambers.
2. Appeal from Judge.
ORDER 57
APPEALS TO THE COURT OF APPEAL
1. Application of order to appeals.
2. Application of order to applications for new trial.
3. Notice of appeal.
4. Time for appealing.
5. Record of proceedings.
6. Petition of appeal.
7. Respondent’s notice.
8. Amendment of petition of appeal and respondent’s notice.
9. Record of appeal.
10. Directions of the Court as to service.
11. Withdrawal of notice.
12. Respondent’s notice where appeal not proceeded with.
13. General powers of the Court.
14. Powers of the Court as to new trial.
15. Stay of execution etc.
16. Application to Court of Appeal.
17. Extension of time.
18. Appellant or respondent not appearing.
19. Powers of single Judge and Registrar.
ORDER 58
(There is no Order 58)
ORDER 59
COSTS
Preliminary
1. Interpretation.
2. Application.
Entitlement to Costs
3. When costs to follow the event.
4. Stage of proceedings at which costs to be dealt with.
5. Special matters to be taken into account in exercisingdiscretion.
6. Restriction of discretion to order costs.
7. Costs arising from misconduct or neglect.
7A. Costs of taxations.
8. Personal liability of solicitor for costs.
9. Fractional or gross sum in place of taxed costs.
10. When a party may sign judgment for costs without an order.
11. When order for taxation of costs not required.
12. Powers of Registrar to tax costs.
13. Supplementary powers of Registrar.
14. Extension etc. of time.
15. Interim certificates.
16. Power to Registrar where party liable to be paid and to paycosts.
17. Taxation of bill of costs comprised in account.
18. Registrar to fix certain fees payable to conveyancing counseletc.
18A. Litigants in person.
19. Fees for more than one counsel.
Procedure on Taxation
20. Mode of beginning proceedings for taxation.
21. Notification of time appointed for taxation.
22. Delivery of bills etc.
23. Short and urgent taxation.
24. Form of bill of costs.
25. Provisions as to taxation proceedings.
26. Powers of Registrar taxing costs payable out of fund.
Assessment of Costs
27. Costs payable to one party by another or out of a fund.
28. Costs payable to a solicitor by his own client.
29. Costs payable to solicitor where money recovered by or on behalfof infant etc.
30. Costs payable to a trustee out of the trust fund etc.
31. Scale of costs.
Certificate
32. Certificate.
33. Certificate of Registrar to be conclusive unless set aside.
Review
34. Application to Registrar for review.
35. Review by Registrar.
36. Review of Registrar’s certificate by a Judge.
APPENDIX 1
SCALE OF COSTS
PART I — INSTITUTION ETC. OF PROCEEDINGS.
PART II — PROCEEDINGS IN CHAMBERS AND INTERLOCUTORY MATTERS IN OPENCOURT.
PART III — DISCOVERY AND INSPECTION.
PART IV — PREPARATION FOR TRIAL OR HEARING WHETHER IN OPENCOURT OR OTHERWISE.
PART V — TRIAL OR HEARING.
PART VI — TAXATION.
PART VII — EXECUTION.
PART VIII — GENERAL AND MISCELLANEOUS.
PART IX — ADDITIONAL PROCEEDINGS ARISING ONLY INCONNECTION WITH ADMIRALTY CAUSES AND MATTERS.
PART X — GENERAL
1. Discretionary costs.
2. Fees to counsel.
3. Item to be authorised, certified etc.
4. Attendances in chambers.
5. Attendances before the Registrar.
6. Copies of documents.
APPENDIX 2
FIXED COSTS
PART I — COSTS ON JUDGMENT WITHOUT TRIAL FOR A LIQUIDATED SUM.
PART II — BASIC COSTS.
PART III — COSTS ON JUDGMENT WITHOUT TRIAL FORPROSSESSION OF LAND.
PART IV — MISCELLANEOUS. BASIC COSTS. ADDITIONAL COSTS.
ORDER 60
THE REGISTRY
1. Distribution of business.
2. Books to be kept in the Registry.
3. Date of filing to be marked etc.
4. Right to inspect etc. certain documents filed in Registry.
5. Deposit of document.
6. (There is no rule 6).
7. (There is no rule 7).
8. (There is no rule 8).
9. Restriction on removal of documents.
ORDER 61
OFFICE HOURS
1. High Court Registry: Days on which open and office hour.
ORDER 62
SERVICE OF DOCUMENTS
1. When personal service required.
2. Service by process server or other person.
3. Personal Service: How effected.
4. Service on corporations.
5. Substituted service.
6. Ordinary service: How effected.
7. Service on Minister etc. in proceedings which are not by or againstthe Government.
8. Effect of service after certain hour.
9. Affidavit of service.
10. No service required in certain cases.
11. Service of notices from High Court.
12. Service where no appearance or address for service.
13. Service upon solicitor or party formerly appearing in person.
ORDER 63
PAPER, PRINTING, NOTICES AND COPIES
1. Quality and size of paper.
2. Regulations as to printing etc.
3. Copies of documents for other party.
4. Requirements as to copies.
ORDER 63A
ELECTRONIC FILING AND SERVICE
1. Definitions.
2. Electronic filing service.
3. Network.
4. Application.
5. Registered user.
6. Authentication code.
7. Security.
8. Electronic filing.
9. Signing.
10. Date of filing.
11. Time for service.
12. Service of documents.
13. Notification by Registrar.
14. Fees.
15. Presumptions.
16. Discrepancy.
17. Application of Order.
ORDER 64
CHANGE OF SOLICITOR
1. Notice of change of solicitor.
2. Notice of appointment of solicitor.
3. Notice of intention to act in person.
4. Removal of solicitor from record at instance of another party.
5. Withdrawal of solicitor who has ceased to act for party.
6. Address for service of party whose solicitor is removed etc.
ORDER 65
SERVICE OF FOREIGN PROCESS
1. Definition.
2. Service of foreign legal process.
3. Service of foreign legal process under Civil ProcedureConvention.
4. Costs of service etc. to be certified by Registrar.
ORDER 66
OBTAINING EVIDENCE FOR FOREIGN COURTS ETC.
1. Jurisdiction of Registrar to make order.
2. Application for order.
3. Application by Attorney General in certain cases.
4. Person to take and manner of taking examination.
5. Dealing with deposition.
ORDER 67
RECIPROCAL ENFORCEMENT OF JUDGMENTS
1. Powers under relevant acts exercisable by Judge or Registrar.
2. Application for registration.
3. Evidence in support of application.
4. Security for costs.
5. Order for registration.
6. Register of judgments.
7. Notice of registration.
8. Indorsement of service.
9. Application to set aside registration.
10. Issue of execution.
11. Determination of certain questions.
12. Rules to have effect subject to orders of the Government.
13. Certified copy of High Court Judgment.
ORDER 68
(There is no Order 68)
ORDER 69
ARBITRATION PROCEEDINGS
1. Interpretation.
2. Matters for a Judge in Court.
3. Matters for Judge in Chambers of Registrar.
4. Special provisions as to applications to remit or set aside anaward.
4A. Appeals.
5. Service out of the jurisdiction of summons, notice etc.
6. Registration in High Court of foreign awards.
7. Enforcement.
ORDER 70
ADMIRALTY PROCEEDINGS
1. Application and interpretation.
2. Issue of writ and entry of appearance.
3. Service out of jurisdiction of notice of writ.
4. Warrant of arrest.
5. Caveat against arrest.
6. Remedy where property protected by caveat is arrested (without goodand sufficient reason).
7. Service of writ in action in rem .
8. Committal of solicitor failing to comply with undertaking.
9. Execution etc. of warrant of arrest.
10. Service on ships etc.: How effected.
11. Applications with respect to property under arrest.
12. Release of property under arrest.
13. Caveat against release and payment.
14. Duration of caveats.
15. Bail.
16. Interveners.
17. Preliminary acts.
18. Failure to lodge preliminary act: Proceedings against party indefault.
19. Special provisions as to pleadings in collision etc. actions.
20. Judgment by default.
21. Order for sale of ship: Determination of priority of claims.
22. Appraisement and sale of property.
22A. Undertaking as to expenses.
23. Payment into and out of Court.
24. Summons for directions.
25. Fixing date for trial etc.
26. Stay of proceedings in collision etc. actions until securitygiven.
27. Inspection of ship etc.
28. Shorthand note of oral evidence etc.
29. Examination of witnesses and other persons.
30. Issue of writ of subpoena.
31. Proceedings for apportionment of salvage.
32. Filing and service of notice of motion.
33. Agreement between solicitors may be made order of Court.
34. Originating summons: Procedure.
35. Limitation action: Parties.
36. Limitation action: Summons for decree or directions.
36A. Limitation action: Payment into Court.
37. Limitation action: Proceedings under decree.
38. Limitation action: Proceedings to set aside decree.
39. References to Registrar.
40. Hearing of reference.
41. Objection to decision on reference.
42. Drawing up and entry of judgments and orders.
43. Inspection of documents filed in Registry.
ORDER 71
(There is no Order 71)
ORDER 72
CONTENTIOUS PROBATE PROCEEDINGS
1. Application and interpretation.
2. Requirements in connection with issue of writ.
3. Service of writ out of the jurisdiction.
4. Intervener in probate action.
5. Citation to appear in proceedings.
6. Entry of appearance.
7. Citation to bring in grant.
8. Citations.
9. Affidavit of testamentary scripts.
10. Default of appearance.
11. Service of statement of claim.
12. Counterclaim.
13. Contents of pleadings.
14. Default of pleadings.
15. Discontinuance.
16. Compromise of action.
17. Case for motion.
18. Application to Court by summons.
19. Form of judgments and orders.
20. Administration Pendente Lite .
ORDER 73
DISABILITY
1. Interpretation.
2. Person under disability must sue, etc., by next friend or guardian ad litem .
3. Appointment of next friend or guardian ad litem .
4. Probate action: Appointment of next friend or guardian ad litem .
5. Probate action: Further provisions.
6. Appointment of guardian where person under disability does notappear.
7. Application to discharge or vary certain orders.
8. Admission not to be implied from pleading of person underdisability.
9. Discovery and interrogatories.
10. Compromise etc. by person under disability.
11. Approval of settlement.
12. Control of money recovered by person under disability.
13. Apportionment by Court.
14. Service of certain documents on person under disability.
ORDER 74
PARTNERS
1. Actions by and against firms within jurisdiction.
2. Disclosure of partners’ names.
3. Service of writ.
4. Entry of appearance in an action against firm.
5. Enforcing judgment or order against firm.
6. Enforcing judgment in action between partners etc.
7. Attachment of debts owed by firm.
8. Actions begun by originating summons.
9. Application to person carrying on business in another name.
10. Applications for orders charging partner’s interest inpartnership property etc.
ORDER 75
DEFAMATION ACTIONS
1. Application.
2. Indorsement of claim in libel action.
3. Obligation to give particulars.
4. Provision as to payment into Court.
5. Statement in open Court.
6. Interrogatories not allowed in certain cases.
7. Evidence in mitigation of damages.
ORDER 76
ADMINISTRATION AND SIMILAR ACTIONS
1. Interpretation.
2. Determination of questions etc. without administration.
3. Parties.
4. Grant of relief in action begun by originating summons.
5. Judgments and orders in administrations.
6. Conduct of sale of trust property.
ORDER 77
ACTIONS FOR SPECIFIC PERFORMANCE ETC. SUMMARY JUDGMENT
1. Application by plaintiff for summary judgment.
2. Manner in which application under rule 1 must be made.
3. Judgment for plaintiff.
4. Leave to defend.
5. Directions.
6. Costs.
7. Setting aside judgment.
ORDER 78
DEBENTURE HOLDERS’ ACTION: RECEIVER’S REGISTER
1. Receiver’s register.
2. Registration of transfers etc.
3. Application for rectification of receiver’s register.
4. Receiver’s register evidence of transfers etc.
5. Proof of title of holder of bearer debenture etc.
6. Requirements in connection with payments.
ORDER 79
CHARGE ACTIONS
1. Application and interpretation.
2. Claims for possession: Non-appearance by a defendant.
3. Action for possession or payment.
4. Action by writ: Judgment in default.
5. Foreclosure in redemption action.
ORDER 80
PROCEEDINGS RELATING TO INFANTS
1. Applications under Guardianship of Infants Act.
2. Defendants to summons.
3. Applications as to guardianship, maintenance etc.
ORDER 81
BILLS OF SALE ACT
1. Rectification of register.
2. Entry of satisfaction.
3. Restraining removal on sale of goods seized.
4. Search of register.
ORDER 82
(There is no Order 82)
ORDER 83
COMPANIES ACT
1. Interpretation.
2. Applications to be made by originating summons.
3. Applications to be made by originating summons or motion.
4. Applications to be made by originating motion.
5. Applications to be made by petition.
6. Entitlement of proceedings.
7. Summons for directions.
8. Inquiry as to debts: Company to make list of creditors.
9. Inspection of list of creditors.
10. Notice to creditors.
11. Advertisement of petition and list of creditors.
12. Affidavit as to claims made by creditors.
13. Adjudication of disputed claims.
14. Certifying list of creditors entitled to object to reduction.
15. Evidence of consent of creditor.
16. Time etc. of hearing of petition for confirmation ofreduction.
17. Restriction on taking effect of order.
ORDER 84
LODGMENT IN COURT AND PAYMENT TO SHERIFF
1. Interpretation.
Lodgment in Court
2. Payment into court.
3. Notice of lodgment.
4. Funds how lodged.
5. Crediting lodgment and dividends.
6. Interest on money lodged in court.
7. Computation of interest.
8. Applications with respect to funds in Court.
9. Payment out of funds in Court.
10. Name of payee to be stated in order.
11. Payment out on death of payee.
12. Transfer or investment of funds in Court.
13. Proof to Treasury before payment.
14. Copy of order or certificate to be sent to Treasury.
15. The Treasury to give certificate of funds in Court.
16. Publication of list of funds in Court.
17. Unclaimed funds in Court with Treasury.
Payment to Sheriff
18. Sheriff to keep an account book.
19. How money paid to Sheriff.
20. Payment in under judgment or order.
21. Money not required for making payments on day of receipt.
22. The Treasury to grant an imprest.
23. Cash book for imprest.
24. How payments from imprest to be made.
25. Proof before payment out.
26. Where money due to Government under any law.
27. When payment to be made by cheque.
ORDER 85
COURT FEES
1. Court fees.
2. Manner of payment of fees.
ORDER 86
MISCELLANEOUS
1. Language of documents.
2. Seal of the Court.
3. Rejection of irregular documents.
4. Inherent powers of the Court.
ORDER 87
REPEAL
1. (Repealed).
ORDER 88
SUMMARY PROCEEDINGS FOR POSSESSION OF LAND
1. Proceedings to be brought by originating summons.
2. Jurisdiction of Registrars.
3. Form of originating summons.
4. Affidavit in support.
5. Service of originating summons.
6. Application by occupier to be made a party.
7. Order for possession.
8. Writ of possession.
9. Setting aside order.
APPENDIX A
FORMS
No. 1 — ORDER FOR CONSOLIDATION.
No. 2 — WRIT OF SUMMONS.
No. 3 — WRIT OF SUMMONS NOTICE OF WHICH IS TO BE SERVED OUT OFJURISDICTION.
No. 4 — NOTICE OF PAYMENT INTO COURT: EXCHANGE CONTROLACT.
No. 5 — NOTICE OF RENEWAL OF WRIT.
No. 6 — ORIGINATING SUMMONS (WHERE APPEARANCEREQUIRED).
No. 7 — ORIGINATING SUMMONS (WHERE APPEARANCE NOT REQUIRED).
No. 8 — EX PARTE ORIGINATING SUMMONS.
No. 9 — NOTICE OFORIGINATING MOTION.
No. 10 — NOTICE OF MOTION.
No. 11 — NOTICE OF WRIT OF SUMMONS TO BE SERVED OUT OFJURISDICTION.
No. 12 — AFFIDAVIT FOR LEAVE TO SERVE WRIT OUT OFJURISDICTION.
No. 13 — ORDER FOR SERVICE OUT OF JURISDICTION.
No. 14 — REQUEST FOR SERVICE OF DOCUMENT ABROAD.
No. 15 — MEMORANDUM OF APPEARANCE.
No. 16 — MEMORANDUM OF CONDITIONAL APPEARANCE.
No. 17 — CERTIFICATE OF NON-APPEARANCE.
No. 18 — AFFIDAVIT ON APPLICATION UNDER ORDER 14 RULE 2, BY OR ONBEHALF OF PLAINTIFF.
No. 19 — NOTICE TO BE INDORSED ON COPY OF COUNTER- CLAIM.
No. 20 — MEMORANDUM OF APPEARANCE TO COUNTER-CLAIM.
No. 21 — MEMORANDUM OF APPEARANCE OF PERSON ADDED AS DEFENDANT.
No. 22 — THIRD PARTY NOTICE CLAIMING CONTRIBUTION OR INDEMNITY OROTHER RELIEF OR REMEDY.
No. 23 — THIRD PARTY NOTICE WHERE QUESTION OR ISSUE TO BEDETERMINED.
No. 24 — SUMMONS FOR THIRD PARTY.
No. 25 — MEMORANDUM OF APPEARANCE OF THIRD PARTY.
No. 26 — SUMMONS FOR LEAVE TO ISSUE A THIRD PARTYNOTICE.
No. 27 — ORDER FOR THIRD PARTY DIRECTIONS.
No. 28 — NOTICE BY CLAIMANT OF PROPERTY TAKEN INEXECUTION.
No. 29 — NOTICE BY SHERIFF OF PROPERTY TAKEN INEXECUTION.
No. 30 — NOTICE OF EXECUTION CREDITOR OF PROPERTY TAKEN INEXECUTION.
No. 31 — APPLICATION FOR AN INTERPLEADER SUMMONS: BY SHERIFF.
No. 32 — APPLICATION TO INTERPLEAD BY A PERSON UNDERLIABILITY.
No. 33 — INTERPLEADER SUMMONS.
No. 34 — JUDGMENT (OR ORDER) ON INTERPLEADER SUMMONS.
No. 35 — PARTICULARS SERVED PURSUANT TO REQUEST OR ORDER.
No. 36 — NOTICE OF DISCONTINUANCE.
No. 37 — NOTICE OF PAYMENT INTO COURT.
No. 38 — NOTICE OF ACCEPTANCE OF MONEY PAID INTO COURT.
No. 39 — NOTICE REQUIRING AFFIDAVIT VERIFYING LIST OF DOCUMENTS.
No. 40 — LIST OF DOCUMENTS.
No. 41 — AFFIDAVIT VERIFYING LIST OF DOCUMENTS.
No. 42 — NOTICE TO INSPECT DOCUMENTS.
No. 43 — NOTICE TO PRODUCE DOCUMENTS REFERRED TO IN PLEADINGS ORAFFIDAVITS.
No. 44 — NOTICE WHERE DOCUMENTS MAY BE INSPECTED.
No. 45 — ORDER FOR PRODUCTION OF DOCUMENTS ANDINSPECTION.
No. 46 — SUMMONS FOR DIRECTIONS PURSUANT TO ORDER 25.
No. 47 — NOTICE UNDER SUMMONS FOR DIRECTIONS.
No. 48 — SUMMONS FOR INTERROGATORIES.
No. 49 — INTERROGATORIES.
No. 50 — ORDER FOR INTERROGATORIES.
No. 51 — ANSWER TO INTERROGATORIES.
No. 52 — NOTICE TO ADMIT FACTS.
No. 53 — ADMISSION OF FACTS, PURSUANT TO NOTICE.
No. 54 — NOTICE TO ADMIT DOCUMENTS.
No. 55 — NOTICE TO NON-ADMISSION OF DOCUMENTS.
No. 56 — NOTICE TO PRODUCE.
No. 57 — NOTICE OF APPOINTMENT TO HEAR ORIGINATINGSUMMONS.
No. 58 — ORDER FOR INTERIM INJUNCTION.
No. 59 — RECEIVER’S SECURITY BY UNDERTAKING.
No. 60 — AFFIDAVIT VERIFYING RECEIVER’S ACCOUNT.
No. 61 — CERTIFICATE OF RESULTS OF SALE.
No. 62 — SUMMONS IN CHAMBERS.
No. 63 — REQUEST FOR SETTING DOWN ACTION FOR TRIAL.
No. 64 — NOTIFICATION OF SETTING DOWN ACTION.
No. 65 — CERTIFICATE OF OFFICER AFTER TRIAL.
No. 66 — LIST OF EXHIBITS.
No. 67 — WRIT OF SUBPOENA AD TESTIFICANDUM.
No. 68 — WRIT OF SUBPOENA DUCES TECUM.
No. 69 — WRIT OF SUBPOENA AD TESTICANDUM AND DUCES TECUM.
No. 70 — PRAECIPE FOR SUBPOENA.
No. 71 — AFFIDAVIT FOR AN ORDER FOR THE PRODUCTION OF A PERSON INPRISON.
No. 72 — ORDER TO PRODUCE PERSON IN PRISON.
No. 73 — ORDER FOR EXAMINATION BEFORE TRIAL.
No. 74 — ORDER FOR ISSUE OF LETTER OF REQUEST TO JUDICIAL AUTHORITY OUTOF JURISDICTION.
No. 75 — ORDER FOR APPOINTMENT OF EXAMINER TO TAKE EVIDENCE OFWITNESS OUT OF JURISDICTION.
No. 76 — LETTER OF REQUEST FOR EXAMINATION OF WITNESS OUT OFJURISDICTION.
No. 77 — SOLICITOR’S UNDERTAKING AS TO EXPENSES.
No. 78 — FORMS OF JURAT.
No. 79 — JUDGMENTS.
No. 80 — ORDER FOR ACCOUNTS AND INQUIRIES.
No. 81 — NOTICE OF JUDGMENT OR ORDER.
No. 82 — FORM OF ADVERTISEMENT FOR CREDITORS.
No. 83 — FORM OF ADVERTISEMENT FOR CLAIMANTS OTHER THANCREDITORS.
No. 84 — AFFIDAVIT VERIFYING LIST OF CREDITOR’S CLAIMS.
No. 85 — AFFIDAVIT VERIFYING LIST OF CLAIMS OTHER THAN CREDITOR’SCLAIMS.
No. 86 — CERTIFICATE OF REGISTRAR.
No. 87 — NOTICE OF CERTAIN JUDGMENTS.
No. 88 — WRIT OF SEIZURE AND SALE.
No. 89 — WRIT OF DELIVERY.
No. 90 — WRIT OF POSSESSION.
No. 91 — SUMMONS FOR LEAVE TO ISSUE EXECUTION.
No. 92 — PRAECIPE FOR WRIT OF EXECUTION.
No. 93 — CONSENT TO ENTRY OF SATISFACTION.
No. 94 — NOTICE OF SEIZURE AND INVENTORY.
No. 95 — NOTICE OF SALE.
No. 96 — AFFIDAVIT IN SUPPORT OF APPLICATION FOR ORDER FOREXAMINATION OF JUDGMENT DEBTOR.
No. 97 — ORDER FOR EXAMINATION OF JUDGMENT DEBTOR.
No. 98 — GARNISHEE ORDER TO SHOW CAUSE.
No. 99 — AFFIDAVIT IN SUPPORT OF GARNISHEE ORDER.
No. 100 — GARNISHEE ORDERS.
No. 101 — ORDER FOR ISSUE BETWEEN JUDGMENT CREDITOR ANDGARNISHEE.
No. 102 — (THERE IS NO NO. 102).
No. 103 — (THERE IS NO NO. 103).
No. 104 — ORDER ABSOLUTE IMPOSING CHARGE ON SECURITIES.
No. 105 — ORDER IMPOSING CHARGE ON SECURITIES: ORDER TOSHOW CAUSE.
No. 106 — AFFIDAVIT AND NOTICE UNDER 0.50, r.10.
No. 107 — ORDER ON ORIGINATING MOTION RESTRAINING TRANSFER OF STOCK ETC.
No. 108 — SUMMONS FOR APPOINTMENT OF RECEIVER.
No. 109 — ORDERS FOR APPOINTMENT OF RECEIVER ETC.
No. 110 — ORDER OF COMMITTAL.
No. 111 — WARRANT FOR COMMITAL.
No. 112 — NOTICE TO BE SERVED WITH WRIT OF HABEAS CORPUS AD SUBJICIENDUM.
No. 113 — WRIT OF HABEAS CORPUS AD SUBJICIENDUM. No. 113A — MEMORANDUM OF APPEAL.
No. 113B — NOTICE OF CROSS APPEAL.
No. 114 — NOTICE OF APPEAL TO JUDGE IN CHAMBERS.
No. 115 — NOTICE OF APPEAL TO COURT OF APPEAL.
No. 116 — CERTIFICATE FOR SECURITY FOR COSTS.
No. 117 — PETITION OF APPEAL.
No. 118 — RESPONDENT’S NOTICE.
No. 119 — CAUSE BOOK.
No. 120 — ORIGINATING SUMMONS BOOK.
No. 121 — ORIGINATING MOTION BOOK.
No. 122 — INTERPLEADER SUMMONS BOOK.
No. 123 — SUMMONS IN CHAMBERS BOOK.
No. 124 — JUDGMENT BOOK.
No. 125 — WRITS OF EXECUTION BOOK.
No. 126 — DISTRESS BOOK.
No. 127 — PROBATE BOOK.
No. 128 — CAVEAT BOOK.
No. 129 — SERVICE BOOK.
No. 130 — ADOPTION BOOK.
No. 131 — DIRECTIONS TO TREASURY.
No. 132 — INDEX OF WILLS.
No. 133 — REGISTER OF APPEALS TO THE COURT OF APPEAL.
No. 134 — REGISTER OF APPEALS FROM SUBORDINATE COURT.
No. 135 — ORDER FOR SUBSTITUED SERVICE.
No. 136 — AFFIDAVIT ON APPLICATION FOR SUBSTITUTED SERVICE.
No. 137 — AFFIDAVITS OF SERVICE.
No. 138 — NOTICE OF CHANGE OF SOLICITOR.
No. 139 — NOTICE OF INTENTION OF PARTY TO ACT IN PERSON, IN PLACE OFSOLICITOR.
No. 140 — SUMMONS TO REMOVE SOLICITOR FROM RECORD.
No. 141 — ORDER REMOVING SOLICITOR FROM THE RECORD.
No. 142 — SUMMONS FOR WITHDRAWAL OF SOLICITOR.
No. 143 — ORDER FOR WITHDRAWAL OF SOLICITOR.
No. 144 — CERTIFICATE OF SERVICE OF FOREIGN PROCESS.
No. 145 — ORDER FOR REGISTRATION OF FOREIGN JUDGMENT.
No. 146 — CERTIFICATE UNDER THE RECIPROCAL ENFORCEMENT OF JUDGMENTACT.
No. 147 — CERTIFICATE UNDER THE RECIPROCAL ENFORCEMENT OF JUDGMENTACT.
No. 148 — (THERE IS NO NO. 148).
No. 149 — (THERE IS NO NO. 149).
No. 150 — (THERE IS NO NO. 150).
No. 151 — (THERE IS NO NO. 151).
No. 152 — (THERE IS NO NO. 152).
No. 153 — (THERE IS NO NO. 153).
No. 154 — (THERE IS NO NO. 154).
No. 155 — WRIT OF SUMMONS IN ACTION IN REM.
No. 156 — WARRANT OF ARREST.
No. 157 — PRAECIPE FOR WARRANT OF ARREST.
No. 158 — PRAECIPE FOR CAVEAT AGAINST ARREST.
No. 159 — PRAECIPE FOR SERVICE OF WRIT IN REM BY SHERIFF.
No. 160 — RELEASE.
No. 161 — PRAECIPE FOR ISSUE OF RELEASE.
No. 162 — PRAECIPE FOR CAVEAT AGAINST RELEASE AND PAYMENT.
No. 163 — PRAECIPE FOR WITHDRAWAL OF CAVEAT.
No. 164 — BAIL BOND.
No. 165 — PRAECIPE FOR COMMISSION FOR APPRAISEMENT AND SALE.
No. 166 — COMMISSION FOR APPRAISEMENT AND SALE.
No. 167 — (THERE IS NO NO. 167).
No. 168 — (THERE IS NO NO. 168).
No. 169 — (THERE IS NO NO. 169).
No. 170 — (THERE IS NO NO. 170).
No. 171 — (THERE IS NO NO. 171).
No. 172 — (THERE IS NO NO. 172).
No. 173 — (THERE IS NO NO. 173).
No. 174 — (THERE IS NO NO. 174).
No. 175 — (THERE IS NO NO. 175).
No. 176 — (THERE IS NO NO. 176).
No. 177 — (THERE IS NO NO. 177).
No. 178 — (THERE IS NO NO. 178).
No. 179 — (THERE IS NO NO. 179).
No. 180 — (THERE IS NO NO. 180).
No. 181 — (THERE IS NO NO. 181).
No. 182 — (THERE IS NO NO. 182).
No. 183 — (THERE IS NO NO. 183).
No. 184 — (THERE IS NO NO. 184).
No. 185 — (THERE IS NO NO. 185).
No. 186 — (THERE IS NO NO. 186).
No. 187 — (THERE IS NO NO. 187).
No. 188 — (THERE IS NO NO. 188).
No. 189 — CONSENT OF NEXT FRIEND OR GUARDIAN AD LITEM OF PERSON UNDER DISABILITY.
No. 190 — CERTIFICATE BY SOLICITOR FOR PERSON UNDER DISABILITY.
No. 191 — ORDER FOR PARTICULARS (PARTNERSHIP).
No. 192 — NOTICE OF SERVICE ON MANAGER OF PARTNERSHIP.
No. 193 — AUTHORITY TO COMPANY TO REGISTER TRANSFER.
No. 194 — STATUTORY DECLARATIONS.
No. 195 — ACCOUNT BOOK.
APPENDIX B — COURT FEES COMMENCEMENT OF A CAUSE OR MATTER.
APPEARANCE.
INTERLOCUTORY APPLICATIONS.
ENTERING OR SETTING DOWN FOR TRIAL OR HEARING IN COURT.
WRITS.
JUDGMENT AND ORDERS.
MISCELLANEOUS.
PROBATE.
ADMIRALTY.
APPEAL FROM HIGH COURT.
APPEAL FROM SUBORDINATE COURTS AND STATUTORY BODIES.
FILING.
COPIES OF DOCUMENTS.
TRANSLATIONS. TREASURY.
TAXATION OF COSTS.
COMPANIES.
COMMISSIONS.
SHERIFF’S OFFICE.
__________________________
RULES OF THE SUPREME COURT
Commencement: 1st July 1990
[S 5/90]
ORDER 1
CITATION, APPLICATION, INTERPRETATION AND FORMS
Citation. (0.1, r.1).
1. These Rules may be cited as the Rules of the Supreme Court.
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Application. (0.1, r.2).
2. (1) Subject to the following provisions of this rule, these Rulesshall have effect in relation to all proceedings in the High Court, includingany pending proceedings therein.
(2) These Rules shall not have effect in relation to proceedings in respectof which rules have been or may be made under any written law for the specificpurpose of such proceedings or in relation to any criminal proceedings.
(3) In the case of the proceedings for which rules have been made, nothingin paragraph (2) shall be taken as affecting any provision of any rules (whethermade under the Act or any other written law) by virtue of which these Rules orany provisions thereof are applied in relation to any of those proceedings.
Application of Chapter 4. (0.1, r.3).
3. The Interpretation and General Clauses Act (Chapter 4) shall apply for the interpretation of these Rules as it applies for theinterpretation of an enactment.
Definitions. (0.1, r.4).
4. (1) In these Rules, unless the context otherwise requires, thefollowing expressions have the meanings hereby respectively assigned to them,namely —
“Act” means the Supreme Court Act;
“bailiff” includes the Registrar and any clerk or other officercharged with the duties of a bailiff and appointed as such by the Registrar;
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“cause book” means the book kept in the Registry in which thenumber of, and other details relating to, a cause or matter are entered;
“counsel” include an advocate and solicitor admitted as suchunder the Legal Profession Act (Chapter 132);
“folio” means 100 words, each figure being counted as oneword;
“Form” means a form set out in Appendix A to these Rules, and aform referred to by a number means the form so numbered in the Appendix;
“officer” means an officer of the High Court;
“originating summons” means every summons other than a summons in a pending cause or matter;
“Permanent Secretary” means the Permanent Secretary, Office of the Prime Minister;
“pleading” does not include a petition, summons or preliminaryact;
“probate action” has the meaning assigned to it by Order 72;
“receiver” includes a manager or consignee;
“Registrar” means the Chief Registrar, the Deputy Chief Registrar, Senior Registrar and a Registrar of the High Court;
“Registry”means the Registry of the High Court;
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“scheduled territories” has the meaning assigned to it by theExchange Control Act (Chapter 141);
“sheriff” includes a bailiff and any clerk or other officercharged with the duties of a Sheriff and appointed as such by the Registrar;
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“sign” in relation to the signing of documents by the Register,includes the affixing of a facsimile signature;
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“solicitor” includes an advocate and solicitor admitted as suchunder the Legal Profession Act (Chapter 132);
“writ” means a writ of summons.
(2) In these Rules, unless the context otherwise requires,“Court” means the High Court or any one or more Judges thereof,whether sitting in Court or in Chambers, or the Registrar; but the foregoingprovision shall not be taken as affecting any provision of these Rules and, inparticular, Order 32, rule 9, by virtue of which the authority and jurisdictionof the Registrar is defined and regulated.
(3) The Registrar may appoint any person to be, and carry out the duties of,a Sheriff or a bailiff.
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(4) In these Rules, unless there is provision to the contarary, a Judgeshall have and may exercise any authority or jurisdiction vested by there Rulesin the Registrar.
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Construction of references to Orders, Rules etc. (0.1, r.5).
5. (1) Unless the context otherwise requires, any reference in theseRules to a specified Order, rule or appendix is a reference to that Order orrule of, or that appendix to these Rules and any reference to a specified rule,paragraph or sub-paragraph is a reference to that rule of the Order, thatparagraph of the rule, or that sub-paragraph of the paragraph, in which thereference occurs.
(2) Any reference in these Rules to anything done under a rule of theseRules includes a reference to the same thing done before the commencement ofthat rule under any corresponding rule of the court ceasing to have effect onthe commencement of that rule.
(3) Except where the context otherwise requires, any reference in theseRules to any written law shall be construed as a reference to that written lawas amended, extended or applied by or under any other written law.
Forms. (0.1, r.6).
6. The Forms in Appendix A shall be used where applicable with suchvariations as the circumstances of the particular case require.
Business by post, fax or electronic mail. (0.1, r.7).
7. Nothing in these Rules shall prejudice any power to regulate thepractice of the Court by giving directions enabling any business or class ofbusiness to be conducted by post, fax or electronic mail.
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ORDER 2
EFFECT OF NON-COMPLIANCE
Non-compliance with rules. (0.2, r.1).
1. (1) Where, in beginning or purporting to begin any proceedings orat any stage in the course of or in connection with any proceedings, there has,by reason of any thing done or left undone, been a failure to comply with therequirements of these Rules, whether in respect of time, place, manner, form orcontent or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document judgment or order therein.
(2) Subject to paragraph (3), the Court may, on the ground that there hasbeen such a failure as is mentioned in paragraph (1), and on such terms as tocosts or otherwise as it thinks just, set aside either wholly or in part theproceedings in which the failure occurred, any step taken in those proceedingsor any document, judgment or order therein or exercise its powers under theseRules to allow such amendments (if any) to be made and to make such order (ifany) dealing with the proceedings generally as it thinks fit.
(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground thatthe proceedings were required by any of these Rules to be begun by anoriginating process other than the one employed.
Application to set aside for irregularity. (0.2, r.2).
2. (1) An application to set aside for irregularity any proceedings,any step taken in any proceedings or any document, judgment or order thereinshall not be allowed unless it is made within a reasonable time and before theparty applying has taken any fresh step after becoming aware of theirregularity.
(2) An application under this rule may be made by summons or motion and thegrounds of objection must be stated in the summons or notice of motion.
ORDER 3
TIME
“Month” means calendar month. (0.3, r.1).
1. Without prejudice to the Interpretation and General Clauses Act(Chapter 4), in its application to these Rules, the word “month”,where it occurs in any judgment order, direction or other document forming partof any proceeding in the High Court, means a calendar month unless the contextotherwise requires.
Reckoning periods of time. (0.3, r.2).
2. (1) Any period of time fixed by these Rules or by any judgment,order or direction for doing any act shall be reckoned in accordance with thefollowing provisions of this rule.
(2) Where the act is required to be done within a specified period after orfrom a specified date, the period begins immediately after that date.
(3) Where the act is required to be done within or not less than a specifiedperiod before a specified date, the period ends immediately before thatdate.
(4) Where the act is required to be done a specified number of clear daysbefore or after a specified date, at least that number of days must intervenebetween the day on which the act is done and that date.
(5) Where, apart from this paragraph, the period in question, being a periodof 7 days or less, would include the day before the weekly holiday, the weeklyholiday or public holiday, that day shall be excluded.
Time expires on weekly holiday etc. (0.3, r.3).
3. Where the time prescribed by these Rules, or by any judgment, orderor direction, for doing any act at the Registry expires on a weekly holiday orother day on which the Registry is closed, and by reason thereof that act cannotbe done on that day, the act shall be in time if done on the next day on whichthe Registry is open.
Extension etc. of time. (0.3, r.4).
4. (1) The Court may, on such terms as it thinks just, by orderextend or abridge the period within which a person is required or authorised bythese Rules or by any judgment, order or direction, to do any act in anyproceedings.
(2) The Court may extend any such period as is referred to in paragraph (1)although the application for extension is not made until after the expiration ofthat period.
(3) The period within which a person is required by these Rules, or by anyorder or direction, to serve, file or amend any pleading or other document maybe extended by consent (given in writing) without an order of the Court beingmade for that purpose.
(4) In this rule references to the Court shall be construed as includingreferences to the Court of Appeal.
Notice of intention to proceed after year’s delay. (0.3,r.5).
5. Where a year or more has elapsed since the last proceeding in acause or matter, the party who desires to proceed must give to every other partynot less then one month’s notice of his intention to proceed.
A summons on which no order was made is not a proceeding for the purpose ofthis rule.
ORDER 4
CONSOLIDATION OF PROCEEDINGS
Consolidation etc. of causes or matters. (0.4, r.1).
1. (1) Where two or more causes or matters are pending, then, if itappears to the Court —
(a) that some common question of law or fact arises in both or allof them; or
(b) that the rights to relief claimed therein are in respect of orarise out of the same transaction or series of transactions; or
(c) that for some other reason it is desirable to make an order underthis rule, the Court may order those causes or matters to be consolidated onsuch terms as it thinks just or may order them to be tried at the same time orone immediately after another or may order any of them to be stayed until afterthe determination of any other of them.
(2) An order for consolidation must be in Form 1 and shall direct that thecause or matter in which the application is made shall thence forward be carriedon in such other cause or matter and that the title of such other cause ormatter be amended by adding thereto the title of the cause or matter in whichthe application is made.
(3) Upon such order being made, the file of the cause or matter in which theapplication is made shall be transferred to and added to the file of such othercause or matter, and the copy of the order shall be left in place of the file sotransferred, and a memorandum of the transfer shall be entered in the cause bookagainst the cause or matter so consolidated.
ORDER 5
MODE OF BEGINNING CIVIL PROCEEDINGS IN HIGH COURT
Mode of beginning civil proceedings. (0.5, r.1).
1. Subject to the provisions of any written law and of these Rulescivil proceedings in the High Court may be begun by writ, originating summons,originating motion or petition.
Proceedings which must be begun by writ. (0.5, r.2).
2. Subject to any provision of any written law or of these Rules, byvirtue of which any proceedings are expressly required to be begun otherwise than by writ, the following proceedings must, notwithstandinganything in rule 4, be begun by writ, that is to say, proceedings —
(a) in which a claim is made by the plaintiff for any relief orremedy for any tort, other than trespass to land;
(b) in which a claim made by the plaintiff is based on allegationof fraud;
(c) in which a claim is made by the plaintiff for damages for beach ofduty (whether the duty exists by virtue of a contract or of a provision made by orunder any written law or independently of any contract of any such provision),where the damages claimed consist of or include damages in respect of death ofany person or in respect of damage to any property;
(d) in which a claim is made by the plaintiff for damages for beachof promise of marriage;
(e) in which a claim is made by the plaintiff in respect of theinfringement of a patent.
In this rule “personal injuries” includes any disease and anyimpairment of a person’s physical or mental condition.
Proceedings which must be begun by originating summons. (0.5,r.3).
3. Proceedings by which an application is to be made to the High Courtor a Judge thereof under any written law must be begun by originating summonsexcept where by these Rules or by or under any written law the application inquestion is expressly required or authorised to be made by some other means.
This rule does not apply to an application made in pending proceedings.
Proceedings which may be begun by writ or originating summons. (0.5,r.4).
4. (1) Except in the case of proceedings which by these Rules or byor under any written law are required to begun by writ or originating summons orare required or authorised to be begun by originating motion or petition,proceedings may be begun either by writ or by originating summons as theplaintiff considers appropriate.
(2) Proceedings —
(a) in which the sole or principal question at issue is or islikely to be, one of the construction of any written law or of any instrumentmade under any written law, or of any deed, will, contract or other document, orsome other question of law; or
(b) in which there is unlikely to be any substantial dispute offact,
are appropriate to be begun by originating summons unless the plaintiffintends in those proceedings to apply for judgment under Order 14 or Order 81 orfor any other reason considers the proceedings more appropriate to be begun bywrit.
Proceedings to be begun by motion or petition. (0.5, r. 5).
5. Proceedings may be begun by originating motion or petition if, butonly if, by these Rules or by or under any written law the proceedings inquestion are required or authorised to be so begun.
Right to sue in person. (0.5, r.6).
6. (1) Subject to paragraph (2) and to Order 76, rule 2, any person(whether or not he sues as a trustee or personal representative or in any otherrepresentative capacity) may begin and carry on proceedings in the High Court bya solicitor or in person.
(2) Except as expressly provided by or under any written law or as the Courtmay permit in any proceedings, a body corporate may not begin or carry on anysuch proceedings otherwise than by a solicitor.
ORDER 6
WRIT OF SUMMONS: GENERAL PROVISIONS
Form of writ. (0.6, r.1).
1. Every writ must be in Form 2 or Form 3, whichever isappropriate.
Indorsement of claim. (0.6, r.2).
2. (1) Before a writ is issued it must be indorsed —
(a) with a statement of claim or, if the statement of claim is notindorsed on the writ, with a concise statement of the nature of the claim madeor the relief or remedy required in the action begun thereby;
(b) where the claim made by the plaintiff is for a debt orliquidated demand only, with a statement of the amount claimed in respect of thedebt or demand and for costs and also with a statement that further proceedingswill be stayed if, within the time limited for appearing, the defendant—
(i) except in either of the cases mentioned in paragraph (2), pays theamount so claimed to the plaintiff or his solicitor; or
(ii) in either of the said cases, pays that amount into Court.
(2) The cases referred to in paragraph (1) (b) are —
(a) a case where the plaintiff (or, if there are more plaintiffsthan one, any of them) is resident outside the scheduled territories or isacting by order or on behalf of a person so resident;
(b) a case where the defendant is making the payment by order or onbehalf of a person so resident.
(3) A defendant who pays money into Court under this rule must give noticein Form 4 to the plaintiff or his solicitor.
Indorsement as to capacity. (0.6, r.3).
3. (1) Before a writ is issued it must be indorsed —
(a) where the plaintiff sues in a representative capacity, with astatement of the capacity in which he sues;
(b) where a defendant is sued in a representative capacity, with astatement of the capacity in which he is sued.
(2) Before a writ is issued in an action brought by a plaintiff who inbringing it is acting by order or on behalf of a person resident outside thescheduled territories it must be indorsed with a statement of that fact and withthe address of the person so resident.
Indorsement as to solicitor and address. (0.6, r.4).
4. (1) Before a writ is issued it must be indorsed —
(a) where the plaintiff sues by a solicitor, with theplaintiff’s address and the solicitor’s name or firm and a businessaddress of his within the jurisdiction;
(b) where the plaintiff sues in person, with —
(i) the address of his place of residence and, if his place of residenceis not within the jurisdiction or if he has no place of residence, the addressof a place within the jurisdiction at or to which documents for him may bedelivered or sent; and
(ii) his occupation.
(2) The address for service of a plaintiff shall be —
(a) where he sues by a solicitor, the business address of thesolicitor indorsed on the writ,
(b) where he sues in person, the address within the jurisdictionindorsed on the writ.
(3) Where a solicitor’s name is indorsed on a writ, he must, if anydefendant who has been served with or who has entered an appearance to the writrequests him in writing so to do, declare in writing whether the writ was issuedby him or with his authority or privity.
(4) If a solicitor whose name is indorsed on a writ declares in writing thatthe writ was not issued by him or with his authority or privity, the Court mayon the application of any defendant who has been served with or who has enteredan appearance to the writ, stay all proceedings in the action begun by thewrit.
Concurrent writ. (0.6, r.5).
5. (1) One or more concurrent writs may, at the request of theplaintiff, be issued at the time when the original writ is issued or at any timethereafter before the original writ ceases to be valid.
(2) Without prejudice to the generality of paragraph (1), a writ for servicewithin the jurisdiction may be issued as a concurrent writ with one, notice ofwhich is to be served out of the jurisdiction and a writ notice of which is tobe served out of the jurisdiction may be issued as a concurrent writ with onefor service within the jurisdiction.
(3) A concurrent writ is a true copy of the original writ with suchdifferences only (if any) as are necessary having regard to the purpose forwhich the writ is issued.
(4) A concurrent writ must be marked by the Registrar with the word“Concurrent”
and he shall sign and date the day of issue of the concurrent writ.
Issue of writ. (0.6, r.6).
6. (1) No writ notice of which is to be served out of thejurisdiction shall be issued without the leave of the Court.
(2) A plaintiff or his solicitor must, on presenting a writ for sealing,leave with the Registrar the original and a copy together with as many copies thereof as there are defendants to be served.
(3) The Registrar shall assign a serial number to the writ and shall sign,seal and date the writ whereupon the writ shall be deemed to be issued.
(4) The original writ must be filed in the Registry and an entry thereofmade in the cause book.
Duration and renewal of writ. (0.6, r.7).
7. (1) For the purpose of service, a writ (other than a concurrentwrit) is valid in the first instance for 12 months, beginning with the date ofits issue and a concurrent writ is valid in the first instance for the period ofvalidity of the original writ which is unexpired at the date of issue of theconcurrent writ.
(2) Where a writ has not been served on a defendant, the Court may by orderextend the validity of the writ from time to time for such period, not exceeding12 months at any one time, beginning with the day next following that on whichit would otherwise expire, as may be specified in the order, if an applicationfor extension is made to the Court before that day or such later day (if any) asthe Court may allow.
(3) Before a writ, the validity of which has been extended under this rule,is served, it must be marked with an official stamp in Form 5 showing the periodfor which the validity of the writ has been so extended.
(4) Where the validity of a writ is extended by order made under this rule,the order shall operate in relation to any other writ (whether original orconcurrent) issued in the same action which has not been served so as to extendthe validity of that other writ until the expiration of the period specified inthe order.
(5) A note of the renewal must be entered in the cause book.
ORDER 7
ORIGINATING SUMMONSES: GENERAL PROVISIONS
Application. (0.7, r.1).
1. The provisions of this Order apply to all originating summonsessubject, in the case of originating summonses of any particular class, to anyspecial provisions relating to originating summonses of that class made by theseRules or by or under any written law.
Form of summons etc. (0.7, r.2).
2. (1) Every originating summons must be in Form 6, Form 7 or Form 8which ever is appropriate.
(2) The party taking out an originating summons (other than an exparte summons)
shall be described as a plaintiff, and the other parties shall be describedas defendants.
Contents of summons. (0.7, r.3).
3. (1) Every originating summons must include a statement of thequestions on which the plaintiff seeks the determination or direction of theHigh Court or, as the case may be, a concise statement of the relief or remedy claimed in the proceedings begun by the originating summons withsufficient particulars to identify the cause or causes of action in respect ofwhich the plaintiff claims that relief or remedy.
(2) Order 6, rules 3 and 4, shall apply in relation to an originatingsummons as they apply in relation to a writ.
Concurrent summons. (0.7, r.4).
4. Order 6, rules 5, shall apply in relation to an originating summonsas it applies in relation to a writ.
Issue of summons. (0.7, r.5).
5. Order 6, rule 6, shall apply in relation to an originating summonsas it applies in relation to a writ.
Duration and renewal of summons. (0.7, r.6).
6. Order 6, rule 7, shall apply in relation to an originating summonsas it applies in relation to a writ.
Ex parte originating summons. (0.7, r.7).
7. (1) Rules 2(1), 3(1) and 5 shall, so far as applicable, apply to ex parte originating summonses; but save as aforesaid, the foregoingrules of this Order shall not apply to ex parte originatingsummonses.
(2) Order 6, rule 6(3) shall, with the necessary modifications, apply inrelation to an ex parte originating summons as it applies in relation to a writ.
ORDER 8
ORIGINATING AND OTHER MOTIONS: GENERAL PROVISIONS
Application. (0.8, r.1).
1. The provisions of this Order apply to all motions subject, in thecase of originating motions of any particular class, to any special provisionsrelating to motions of that class made by these Rules or by or under any writtenlaw.
Notice of motion. (0.8, r.2).
2. (1) Except where an application by motion may properly be made ex parte , no motion shall be made without previous notice to the partiesaffected thereby, but the Court if satisfied that the delay caused by proceedingin the ordinary way would or might entail irreparable or serious mischief maymake an order ex parte on such terms as to costs or otherwise, andsubject to such undertaking, if any, as it thinks just; and any party affectedby such order may apply to the Court to set it aside.
(2) Unless the Court gives leave to the contrary, there must be at least 2clear days between the service of notice of a motion and the day named in thenotice for hearing the motion.
Form and issue of notice of motion. (0.8, r.3).
3. (1) The notice of an originating motion must be in Form 9 and thenotice of any other motion in Form 10.
Where leave has been given under rule 2(2) to serve short notice of motion,that fact must be stated in the notice.
(2) The notice of a motion must include a concise statement of the nature ofthe claim made or the relief or remedy required.
(3) Order 6, rule 4, shall, with the necessary modifications, apply inrelation to a notice of an originating motion as it applies in relation to awrit.
(4) Issue of the notice takes place upon its being sealed by an officer ofthe Registry.
Service of notice of motion with writ etc. (0.8, r.4).
4. Notice of a motion to be made in an action may be served by theplaintiff on the defendant with the writ of summons or originating summons or atany time after service of such writ or summons, whether or not the defendant hasentered an appearance in the action.
Adjournment of hearing. (0.8, r.5).
5. The.hearing of any motion may be adjourned from time to time onsuch terms, if any, as the Court thinks fit.
ORDER 9
PETITION: GENERAL PROVISIONS
Application. (0.9, r.1).
1. Rules 2 and 3 apply to petitions by which civil proceedings in theHigh Court are begun, subject, in the case of petitions of any particular class,to any special provisions relating to petitions of that class made by theseRules or by or under any written law.
Contents of petition. (0.9, r.2).
2. (1) Every petition must include a concise statement of the natureof the claim made or the relief or remedy required in the proceedings begunthereby.
(2) Every petition must include at the end thereof a statement of the namesof the persons, if any, required to be served therewith or, if no person isrequired to be served, a statement to that effect.
(3) Order 6, rule 4, shall, with the necessary modifications, apply inrelation to a petition as it applies in relation to a writ.
Fixing time for hearing petition. (0.9, r.3).
3. (1) A day and time for the hearing of a petition which is requiredto be heard shall be fixed by the Registrar.
(2) Unless the Court otherwise directs, a petition which is required to beserved on any person must be served on him not less than 7 days before the dayfixed for the hearing of the petition.
Certain applications not to be made by petition. (0.9, r.4).
4. No application in any cause or matter may be made by petition.
ORDER 10
SERVICE OF ORIGINATING PROCESS: GENERAL PROVISIONS
General provisions. (0.10, r.1).
1. (1) Subject to the provisions of any written law and these Rules,a writ must be served personally on each defendant.
(2) Where a defendant’s solicitor indorses on the writ a statementthat he accepts service of the writ on behalf of that defendant, the writ shallbe deemed to have been duly served on that defendant and to have been served onthe date on which the indorsement was made.
(3) Where a writ is not duly served on a defendant but he enters anunconditional appearance in the action begun by the writ, the writ shall bedeemed to have been duly served on him and to have been so served on the date onwhich he entered the appearance.
(4) Where a writ is duly served on a defendant otherwise than by virtue ofparagraph (2) or (3), then, subject to Order 11, rule 5, unless after service theperson serving it indorses on it the following particulars, that is to say, theday of the week and date on which it was served, where it was served, the personon whom it was served, and, where he is not the defendant, the capacity in whichhe was served, the plaintiff in the action begun by the writ shall not beentitled to enter final or interlocutory judgment against that defendant indefault of appearance or in default of defence, unless the Court otherwiseorders.
Service of writ on agent of overseas principal. (0.10, r.2).
2. (1) Where the Court is satisfied on an ex parte applicationthat —
(a) a contract has been entered into within the jurisdiction withor through an agent who is either an individual residing or carrying onbusiness within the jurisdiction or a body corporate having a registeredoffice or a place of business within the jurisdiction; and
(b) the principal for whom the agent was acting was at the time thecontract was entered into and is at the time of the application neither such anindividual nor such a body corporate; and
(c) at the time of the application either the agent’s authorityhas not been determined or he is still in business relations with hisprincipal,
the Court may authorise service of a writ beginning an action relating to thecontract to be effected on the agent instead of the principal.
(2) An order under this rule authorising service of a writ on adefendant’s agent must limit a time within which the defendant must enteran appearance.
(3) Where an order is made under this rule authorising service of a writ on a defendant’s agent, a copy of the order and of the writ mustbe sent by post to the defendant at his address out of the jurisdiction.
Service of writ in pursuance of contract. (0.10, r.3).
3. (1) Where —
(a) a contract contains a term to the effect that the High Courtshall have jurisdiction to hear and determine any action in respect of acontract or, apart from any such term, the High Court has jurisdiction to hearand determine any such action; and
(b) the contract provides that, in the event of any action inrespect of the contract being begun, the process by which it is begun may beserved on the defendant, or on such other person on his behalf as may bespecified in the contract, in such manner or at such place (whether within orout of the jurisdiction), as may be so specified,
then if an action in respect of the contract is begun in the High Court andthe writ by which it is begun is served in accordance with the contract the writshall, subject to paragraph (2), be deemed to have been duly served on thedefendant.
(2) A notice of a writ which is served out of the jurisdiction in accordancewith a contract shall not be deemed to have been duly served on the defendant byvirtue of paragraph (1) unless leave to serve such notice out of thejurisdiction has been granted under Order 11, rule 1 or 2.
Service of writ in certain actions for possession of immovable property. (0.10, r.4).
4. Where a writ is indorsed with a claim for the possession ofimmovable property the Court may —
(a) if satisfied on an ex parte application that noperson appears to be in possession of the immovable property and that servicecannot be otherwise effected on any defendant, authorise service on thatdefendant to be effected by affixing a copy of the writ to some conspicuous partof the immovable property;
(b) if satisfied on such an application that no person appears tobe in possession of the immovable property and that service could not otherwisehave been effected on any defendant, order that service already effected byaffixing a copy of the writ to some conspicuous part of the immovable property shall be treated as good service on that defendant.
Service of originating summons, petition and notice of motion. (0.10,r.5).
5. The foregoing rules of this Order (except rule 1(4)) shall apply inrelation to an originating summons to which an appearance is required to beentered as they apply in relation to a writ, and rule 1(1) and (2) shall, withany necessary modifications, apply in relation to an originating summons to which no appearance need be entered, anotice of an originating motion and a petition as they apply in relation to awrit.
ORDER 11
SERVICE OF PROCESS ETC. OUT OF THE JURISDICTION
Principal cases in which service of notice of writ out of jurisdiction ispermissible. (0.11, r.1).
1. Where the writ does not contain any claim for damage, loss of lifeor personal injury arising out of —
(i) a collision between ships; or
(ii) the carrying out of or omission to carry out a manoeuvre in the caseof one or more of two or more ships; or
(iii) non-compliance on the part of one or more of two or more ships, withany collision regulations in force,
service of a notice of a writ out of the jurisdiction is permissible with theleave of the Court in the following cases, that is to say —
(a) if the whole subject-matter of the action begun by the writ isimmovable property situate within the jurisdiction (with or without rents orprofits) or the perpetuation of testimony relating to immovable property sosituate;
(b) if an act, deed, will, contract, obligation or liabilityaffecting immovable property situate within the jurisdiction is sought to beconstrued, rectified, set aside or enforced in the action begun by the writ;
(c) if in the action begun by the writ relief is sought against aperson domiciled or ordinarily resident or carrying on business within thejurisdiction;
(d) if the action begun by the writ is for the administration ofthe estate of a person who died domiciled within the jurisdiction or if theaction begun by the writ is for any relief or remedy which might be obtained inany such action as aforesaid;
(e) if the action begun by the writ is for the execution, as toproperty situate within the jurisdiction, of the trusts of a written instrument,being trusts that ought to be executed according to law and of which the personto be served with the writ is a trustee or if the action begun by the writ isfor any relief or remedy which might be obtained in any such action asaforesaid;
(f) if the action begun by the writ is brought against a defendant toenforce, rescind, dissolve, annul or otherwise affect a contract, or to recoverdamages or obtain other relief in respect of the breach of a contract, being (ineither case) a contract which —
(i) was made within the jurisdiction; or
(ii) was made by or through an agent trading or residing within thejurisdiction on behalf of a principal trading or residing out of thejurisdiction; or
(iii) is by its terms, or by implication, governed by the law of Brunei Darussalam;
(g) if the action begun by the writ is brought against a defendantin respect of a breach committed within the jurisdiction of a contract madewithin or out of the jurisdiction, and irrespective of the fact, if such be thecase, that the breach was preceded or accompanied by a breach committed out of the jurisdiction that rendered impossible the performance of so muchof the contract as ought to have been performed within the jurisdiction;
(h) if the action begun by the writ is founded on a tort committedwithin the jurisdiction;
(i) if in the action begun by the writ an injunction is soughtordering the defendant to do or refrain from doing anything within thejurisdiction (whether or not damages are also claimed in respect of a failure todo or the doing of that thing);
(j) if the action begun by the writ being properly brought against aperson duly served within or out of the jurisdiction, a person out of the jurisdiction is a necessary or proper party thereto;
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(k) if the action begun by the writ is either by a charge of propertysituate within the jurisdiction (other than immovable property) and seeks thesale of the property, the foreclosure of the charge or delivery by the chargorof possession of the property but not an order for payment of any moneys dueunder the charge or by a charge or of property so situate (other than immovable property) and seeks redemption of the charge, reconveyance of theproperty or delivery by the chargee of possession of the property but not apersonal judgment;
(1) if the action begun by the writ is brought under the provisionsof any written law relating to carriage by air.
In this paragraph ‘mortgage’ includes a charge or lien,‘mortgagee’ means a person entitled to, or interested in, a mortgageand ‘mortgagor’ means a person entitled to, ar interested inproperty subject to a mortgage.
Service out of the jurisdiction in certain actions of contract. (0.11,r.2).
2. Where it appears to the Court that a contract contains a term tothe effect that the High Court shall have jurisdiction to hear and determine any action in respect of the contract, the Court may grant leavefor service out of the jurisdiction of the notice of the writ by which an actionin respect of the contract is begun.
Leave for service of notice of writ. (0.11, r.3).
3. Notice of a writ for service out of the jurisdiction must be inForm 11.
Application for, and grant of, leave to serve notice of writ out ofjurisdiction. (0.11, r.4).
4. (1) An application for the grant of leave under rule 1 or 2 mustbe supported by an affidavit in Form 12 stating the grounds on which theapplication is made and that in the deponent’s belief, the plaintiff has agood cause of action, and showing in what place or country the defendant is, orprobably may be found.
(2) No such leave shall be granted unless it shall be made sufficiently toappear to the Court that the case is a proper one for service out of thejurisdiction under this Order.
(3) An order in Form 13 granting under rule 1 or 2 leave to serve a noticeof a writ out of the jurisdiction must limit a time within which the defendantto be served must enter an appearance.
Service of notice of writ abroad: General. (0.11, r.5).
5. (1) Subject to the following provisions of this rule, Order 10,rule 1, and Order 62, rule 5, shall apply in relation to the service of a noticeof a writ notwithstanding that the notice is to be served out of thejurisdiction.
(2) Nothing in this rule or in any order or direction of the Court made byvirtue of it shall authorise or require the doing of anything in a country inwhich service is to be effected which is contrary to the law of thatcountry.
(3) A notice of a writ which is to be served out of jurisdiction need not beserved personally on the person required to be served so long as it is served onhim in accordance with the law of the country in which service is effected.
(4) Where a certificate under the following provisions of this rule isproduced in relation to the service of notice of a writ in accordance with rule6 or rule 7, Order 10, rule 1(4), shall not apply in relation to that service.
(5) An official certificate stating that a notice of a writ as regards whichrule 6 has been complied with has been served on a person personally, or inaccordance with the law of the country in which service was effected, on aspecified date, being a certificate —
(a) by a consular authority in that country; or
(b) by the Government or judicial authorities of that country;or
(c) by any other authority designed in respect of that country, underthe Hague Convention,
shall be evidence of the facts so stated.
(6) An official certificate by the Minister of Foreign Affairs stating thatnotice of a writ has been duly served on a specified date in accordance with arequest made under rule 7 shall be evidence of that fact.
(7) A document purporting to be such a certificate as is mentioned inparagraph (5)
or (6) shall, until the contrary is proved, be deemed to be such acertificate.
(8) Where the defendant is in Singapore or Malaysia, the notice of a writmay be sent by post or otherwise by the Registrar to the Magistrate, Registrar,or other appropriate officer of any Court exercising civil jurisdiction in thearea in which the person to be served is said to be or to be carrying onbusiness for service on the defendant and if it is returned with an indorsementof service and with an affidavit of such service, it shall be deemed to havebeen duly served.
Service of notice of writ abroad through foreign governments judicialauthorities and
Bruneian consuls. (0.11, r.6).
6. (1) Where in accordance with these Rules notice of a writ is to beserved on a defendant in any country with respect to which there subsists aCivil Procedure Convention providing for service in that country of process ofthe High Court, the notice may be served —
(a) through the judicial authorities of that country; or
(b) through a Brunei Darussalam consular authority in that country(subject to any provision of the Convention as to the nationality of persons whomay be so served).
(2) Where in accordance with these Rules notice of a writ is to be served ona defendant in any country with respect to which there does not subsist a CivilProcedure Convention providing for service in that country of process of theHigh Court, the notice may be served —
(a) through the Government of that country, where that Governmentis willing to effect service; or
(b) through a Brunei Darussalam consular authority in that country,except where service through such an authority is contrary to the law of thatcountry.
(3) Where a person wishes to serve notice of a writ in any country—
(a) through the judical authorities of that country under paragraph(1); or
(b) through a Brunei Darussalam consular authority under paragraph(1) or (2);
or
(c) through the Government of that country under paragraph (2),
that person must lodge in the Registry a request in Form 14 for service ofnotice of the writ by that method, together with a copy of the notice and anadditional copy thereof for each person to be served.
(4) Every copy of a notice lodged under paragraph (3) must beaccompanied by a translation of the notice in the official language of thecountry in which service is to be effected or, if there is more than oneofficial language of that country, in any one of those languages which isappropriate to the place in that country where service is to be effected:Provided that this paragraph shall not apply in relation to a copy of a noticewhich is to be served in a country the official language of which is, or theofficial languages of which include, English, or is to be served in any countryby a Brunei Darussalam consular authority on a Brunei Darussalam citizen, unlessthe service is to be effected under paragraph (1) and the Civil ProcedureCovention with respect to that country expressly requires the copy to be accompanied by a translation.
(5) Every translation lodged under paragraph (4) must be certified by theperson making it to be a correct translation; and the certificate must contain astatement of that person’s full name, of his address and of hisqualifications for making the translation.
(6) Documents duly lodged under paragraph (3) shall be sent by the Registrarto the Permanent Secretary to the Ministry of Foreign Affairs with a requestthat he arranges for the writ to be served by the method indicated in therequest lodged under paragraph (3) or, where alternative methods are so indicated, by such one of those methods as in most convenient.
Service of notice of writ in certain actions under written law. (0.11,r.7).
7. (1) Where a person to whom leave has been granted under rule 1 toserve notice of a writ on a High Contracting Party to the Warsaw Conventionbeing a writ beginning an action to enforce a claim in respect of carriageundertaken by that Party, wishes to have the notice served on that Party, hemust lodge in the Registry —
(a) a request for service to be arranged by the Minister of ForeignAffairs; and
(b) a copy of the notice; and
(c) except where the official language of the High Contracting Partyis, or the official languages of that Party include, English, a translation ofthe notice in the official language or one of the official languages of the HighContracting Party.
(2) Rule 6(5) shall apply in relation to a translation lodged underparagraph (1) of this rule as it applies in relation to a translation lodgedunder paragraph (4) of that rule.
(3) Documents duly lodged under this rule shall be sent by the Registrar tothe Permanent Secretary to the Ministry of Foreign Affairs with a request thathe arranges for the notice to be served on the High Contracting Party or theGovernment in question, as the case may be.
Undertaking to pay expenses of service incurred by Minister. (0.11,r.8).
8. Every request lodged under rule 6(3) or rule 7 must contain anundertaking by the person making the request to be responsible personally forall expenses incurred by the Minister of Foreign Affairs in respect of the service requested and, on receiving due notification of the amount of those expenses, to pay that amount to theoffice of the said Minister and to produce a receipt for the payment to the proper officer inthe Registry.
Service of originating summons, petition, notice of motion etc. (0.11,r.9).
9. (1) Subject to paragraph (2), service out of the jurisdiction of an originating summons is permissible with the leave of theCourt.
(2) Where the proceedings begun by an originating summons might have been begun by writ, service out of the jurisdiction of the originatingsummons is permissible as aforesaid if, but only if, service of the notice ofthe writ out of the jurisdiction would be permissible had the proceedings beenbegun by writ.
(3) Where any proceedings are authorised by these Rules or (apart from theseRules) by or under any written law to be begun by originating motion orpetition, service out of the jurisdiction of the notice of motion or of thepetition is permissible with the leave of the Court.
(4) Service out of the jurisdiction of any summons, notice or order issued,given or made in any proceedings is permissible with the leave of the Court.
(5) Rule 4(1) and (2) shall, so far as applicable, apply in relation to anapplication for the grant of leave under this rule as they apply in relation toan application for the grant of leave under rule 1 or 2.
(6) An order granting under this rule leave to serve out of the jurisdiction an originating summons to which an appearance is required to beentered must limit a time within which the defendant to be served with thesummons must enter an appearance.
(7) Rules 5, 6 and 8 shall apply in relation to any document for the serviceof which out of the jurisdiction leave has been granted under this rule as theyapply in relation to a writ.
ORDER 12
ENTRY OF APPEARANCE TO WRIT OR ORIGINATING SUMMONS
Mode of entering appearance. (0.12, r.1).
1. (1) Subject to paragraph (2) and to Order 76, rule 2, a defendantto an action begun by writ may (whether or not he is sued as a trustee orpersonal representative or in any other representative capacity) enter anappearance in the action and defend it by a solicitor or in person.
(2) Except as expressly provided by these Rules or by any written law, adefendant to such an action who is a body corporate may not enter an appearancein the action or defend it otherwise than by a solicitor.
(3) An appearance is entered by properly completing the requisite documents,that is to say, a memorandum of appearance, as defined by rule 2, and a copythereof, and handing them in at, or sending them by post to, the Registry.
(4) If two or more defendants to an action enter an appearance by the samesolicitor and at the same time, only one set of the requisite documents need becompleted and delivered for those defendants.
Memorandum of appearance. (0.12, r.2).
2. (1) A memorandum of appearance is a request to the Registry toenter an appearance for the defendant or defendants specified in thememorandum.
(2) A memorandum of appearance must be in Form 15 and both the memorandum ofappearance and the copy thereof required for entering an appearance must besigned by the solicitor by whom the defendant appears or, if the defendantappears in person, by the defendant.
(3) A memorandum of appearance must specify —
(a) in the case of a defendant appearing in person, the address ofhis place of residence and, if his place of residence is not within thejurisdiction or if he has no place of residence, the address of a place withinthe jurisdiction at or to which documents for him may be delivered or sent;and
(b) in the case of a defendant appearing by a solicitor a businessaddress of his solicitor’s within the jurisdiction,
and where the defendant enters an appearance in person, the address withinthe jurisdiction specified under sub-paragraph (a) shall be his address for service but otherwise his solicitor’s business addressshall be his address for service.
(4) If the Court is satisfied on application by the plaintiff that anyaddress specified in the memorandum of appearance is not genuine, the Court mayset aside the appearance.
Procedure on receipt of requisite documents. (0.12, r.3).
3. (1) On receiving the requisite documents an officer of theRegistry must in all cases affix to the copy of the memorandum of appearance anofficial stamp showing the date on which he received those documents and enterthe appearance in the cause book, and —
(a) if the requisite documents were handed in at the Registry, handback that copy of the memorandum; and
(b) if they were sent by post, send that copy by post to theplaintiff or, as the case may be, his solicitor at the plaintiff’s addressfor service and also send by post to the defendant or, as the case may be, hissolicitor at the defendant’s address for service a notice of appearance(stamped with an official stamp showing that date) stating that the defendantspecified therein entered an appearance on that date.
(2) Where the defendant enters an appearance by handing in the requisitedocuments at the Registry, he must on the date on which he enters the appearancesend by post to the plaintiff, if the plaintiff sues in person, but otherwise tothe plaintiff’s solicitor, at the plaintiff’s address for service,the copy of the memorandum of appearance handed back to him under paragraph(1).
Time limited for appearing. (0.12, r.4).
4. References in these Rules to the time limited for appearing arereferences —
(a) in the case of a writ served within the jurisdiction of theHigh Court to 8 days after service of the writ (including the day of service)or, where that time has been extended by or by virtue of these Rules, to thattime as so extended; and
(b) in the case of a notice of a writ served out of thejurisdiction, to the time limited under Order 10, rule 2(2), or Order 11, rule4(3), or, where that time has been extended as aforesaid, to that time as soextended.
Late appearance. (0.12, r.5).
5. (1) A defendant may not enter an appearance in an action afterjudgment has been entered therein except with the leave of the Court.
(2) Except as provided by paragraph (1), nothing in these Rules or any writor order thereunder shall be construed as precluding a defendant from enteringan appearance in an action after the time limited for appearing, but if adefendant enters an appearance after that time, he shall not, unless the Courtotherwise orders, be entitled to serve a defence or do any other thing laterthan if he had appeared within that time.
Conditional appearance. (0.12, r.6).
6. (1) A defendant to an action may with the leave of the Court entera conditional appearance in Form 16 in the action.
(2) A conditional appearance, except by a person sued as a partner of a firmin the name of that firm and served as a partner, is to be treated for allpurposes as an unconditional appearance unless the Court otherwise orders or thedefendant applies to the Court, within the time limited for the purpose, for anorder under rule 7 and the Court makes an order thereunder.
Application to set aside writ etc. (0.12, r.7).
7. (1) A defendant to an action may at any time before entering anappearance therein, or, if he has entered a conditional appearance, within 14days after entering the appearance, apply to the Court for an order settingaside the writ or service of the writ, or notice of the writ, on him, ordeclaring that the writ or notice has not been duly served on him or dischargingany order giving leave to serve the notice on him out of the jurisdiction.
(2) An application under this rule must be made by summons.
Appearance to originating summons. (0.12, r.8).
8. (1) Subject to paragraph (2) an appearance must be entered toevery originating summons (other than an ex parte originating summons)by each defendant named in and served with the summons.
(2) No appearance need be entered to an originating summons in any case orclass of case in relation to which special provision to that effect is made bythese Rules or by or under any written law.
(3) Subject to the foregoing provisions of this rule, the foregoing rules ofthis Order shall apply in relation to an originating summons to which anappearance is required to be entered as they apply in relation to a writ exceptthat for the reference in rule 4 (b) to Order 11, rule 4(3), there shall be substituted a reference to Order 11, rule9(6).
ORDER 13
DEFAULT OF APPEARANCE TO WRIT
Claim for liquidated demand. (0.13, r.1).
1. (1) Where a writ is indorsed with a claim against a defendant fora liquidated demand only, then, if that defendant fails to enter an appearance,the plaintiff may, after the time limited for appearing, enter final judgment against that defendant for a sum not exceeding that claimed bythe writ in respect of the demand and for costs, and proceed with the actionagainst the other defendants, if any.
(2) A claim shall not be prevented from being treated for the purposes ofthis rule as a claim for a liquidated demand by reason only that part of theclaim is for interest accruing after the date of the writ at an unspecifiedrate, but any such interest shall be computed from the date of the writ to thedate of entering judgment at the rate of 6 per cent or such other rate as theChief Justice may from time to time direct.
Claim for unliquidated damages. (0.13, r.2).
2. Where a writ is indorsed with a claim against a defendant forunliquidated damages only, then, if that defendant fails to enter an appearance,the plaintiff may, after the time limited for appearing, enter interlocutoryjudgment against that defendant for damages to be assessed and costs, andproceed with the action against the other defendants, if any.
Claim in detinue. (0.13, r.3).
3. Where a writ is indorsed with a claim against a defendant relatingto the detention of movable property only, then, if that defendant fails toenter an appearance, the plaintiff may, after the time limited for appearing, athis option enter either —
(a) interlocutory judgment against the defendant for the deliveryof the property or its value to be assessed and costs; or
(b) interlocutory judgment for the value of the property to beassessed and costs,
and proceed with the action against the other defendants, if any.
Claim for possession of immovable property. (0.13, r.4).
4. (1) Where a writ is indorsed with a claim against a defendant forpossession of immovable property only, then, if that defendant fails to enter anappearance the plaintiff may, after the time limited for appearing, and onproducing a certificate by his solicitor, or
(if he sues in person) an affidavit, stating that he is not claiming anyrelief in the action of the nature specified in Order 79, rule 1, enter judgment for possession of the immovable property as against that defendantand costs, and proceed with the action against the other defendants, if any.
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(2) Where there is more than one defendant, judgment entered under this ruleshall not be enforced against any defendant unless and until judgment forpossession of the immovable property has been entered against all thedefendants.
Mixed claims. (0.13, r.5).
5. Where a writ issued against any defendant is indorsed with two ormore of the claims mentioned in the foregoing rules, and no other claim, then,if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter against the defendant such judgmentin respect of any such claim as he would be entitled to enter under these Rulesif that were the only claim indorsed on the writ, and proceed with the actionagainst the other defendants, if any.
Other claims. (0.13, r.6).
6. (1) Where a writ is indorsed with a claim of a description notmentioned in rules 1 to 4, then, if any defendant fails to enter an appearance, the plaintiff may,after the time limited for appearing and upon filing an affidavit proving dueservice of the writ on that defendant and, where the statement of claim was notindorsed on or served with the writ, upon serving a statement of claim on him,proceed with the action as if that defendant had entered an appearance.
(2) Where a writ issued against a defendant is indorsed as aforesaid, but byreason of the defendant’s satisfying the claim or complying with thedemands thereof or any other like reason it has become unnecessary for theplaintiff to proceed with the action, then if the defendant fails to enter anappearance, the plaintiff may, after the time limited for appearing, enterjudgment with the leave of the Court against that defendant for costs.
(3) An application for leave to enter judgment under paragraph (2) shall beby summons which must, unless the Court otherwise orders, and notwithstandinganything in Order 62, rule 10, be served on the defendant against whom it issought to enter judgment.
Proof of service of writ. (0.13, r.7).
7. (1) Judgment shall not be entered against a defendant under thisOrder unless —
(a) the plaintiff produces a certificate of non-appearance in Form17; and
(b) either an affidavit is filed by or on behalf of the plaintiffproving due service of the writ or notice of the writ on the defendant, or theplaintiff produces the writ indorsed by the defendant’s solicitor with astatement that he accepts service of the writ on the defendant’sbehalf.
(2) Where, in an action begun by writ, an application is made to the Courtfor an order affecting a party who has failed to enter an appearance, the Court hearing the application may require to be satisfied in such manneras it thinks fit that the party is in default of appearance.
Setting aside Judgment. (0.13, r.8).
8. The Court may, on such terms as it thinks just, set-aside or varyany judgment entered in pursuance of this Order.
ORDER 14
SUMMARY JUDGMENT
Application by plaintiff for summary judgment. (0.14, r.1).
1. (1) Where in an action to which this rule applies a statement ofclaim has been served on a defendant and that defendant has entered anappearance in the action, the plaintiff may, on the ground that that defendanthas no defence to a claim included in the writ, or to a particular part of sucha claim, or has no defence to such a claim or part except as to the amount ofany damages claimed, apply to the Court for judgment against that defendant.
(2) Subject to paragraph (3), this rule applies to every action begun bywrit other than one which includes —
(a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage;or
(b) a claim by the plaintiff based on an allegation of fraud.
(3) This Order shall not apply to an action to which Order 77 applies.
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Manner in which application under rule 1 must be made. (0.14,r.2).
2. (1) An application under rule 1 must be made by summons supportedby an affidavit in Form 18 verifying the facts on which the claim, or the partof a claim, to which the application relates is based and stating that in thedeponent’s belief there is no defence to that claim or part, as the casemay be, or no defence except as to the amount of any damages claimed.
(2) Unless the Court otherwise directs, an affidavit for the purposes ofthis rule may contain statements of information or belief with the sources andgrounds thereof.
(3) The summons, a copy of the affidavit in support and of any exhibitsreferred to therein must be served on the defendant not less than 4 clear daysbefore the return day.
Judgment for plaintiff. (0.14, r.3).
3. (1) Unless on the hearing of an application under rule 1 eitherthe Court dismisses the application or the defendant satisfies the Court withrespect to the claim, or the part of a claim, to which the application relatesthat there is an issue or question in dispute which ought to be tried or thatthere ought for some other reason to be a trial of that claim or part, the Courtmay give such judgment for the plaintiff against that defendant on that claim orpart as may be just having regard to the nature of the remedy or reliefclaimed.
(2) The Court may by order, and subject to such conditions, if any, as maybe just, stay execution of any judgment given against a defendant under thisrule until after the trial of any counterclaim made or raised by the defendantin the action.
Leave to defend. (0.14, r.4).
4. (1) A defendant may show cause against an application under rule 1by affidavit or otherwise to the satisfaction of the court.
rule.
(2) Rule 2(2) applies for the purposes of this rule as it applies for thepurposes of that
(3) The Court may give a defendant against whom such an application is madeleave to defend the action with respect to the claim, or the part of a claim, towhich the application relates either unconditionally or on such terms as togiving security or time or mode of trial or otherwise as it thinks fit.
(4) On the hearing of such an application the Court may order a defendantshowing cause or, where that defendant is a body corporate, any director,manager, secretary or other similar officer thereof, or any person purporting toact in any such capacity —
(a) to produce any document;
(b) if it appears to the Court that there are special circumstanceswhich make it desirable that he should do so, to attend and be examined onoath.
Application for summary judgment on counter-claim. (0.14, r.5).
5. (1) Where a defendant to an action begun by writ has served acounter-claim on the plaintiff, then, subject, to paragraph (3), the defendantmay, on the ground that the plaintiff has no defence to a claim made in thecounter-claim, or to a particular part of such a claim, apply to the Court forjudgment against the plaintiff on that claim or part.
(2) Rules 2, 3 and 4 shall apply in relation to an application under thisrule as they apply in relation to an application under rule 1 but with thefollowing modifications, that is to say —
(a) references to the plaintiff and defendant shall be construed asreferences to the defendant and plaintiff respectively;
(b) the words in rule 3(2) “any counter-claim made or raisedby the defendant in” shall be omitted; and
(c) the references in rule 4(3) to the action shall be construed as areference to the counter-claim to which the application under this rulerelates.
(3) This rule shall not apply to a counter-claim which includes any suchclaim as is referred to in rule 1(2).
Directions. (0.14, r.6).
6. (1) Where the Court —
(a) orders that a defendant or a plaintiff has leave (whetherconditional or unconditional) to defend an action or counter-claim, as the case may be, with respect to a claim or a part of a claim; or
(b) gives judgment for a plaintiff or a defendant on a claim orpart of a claim but also orders that execution of the judgment be stayed pendingthe trial of a counter-claim or of the action, as the case may be,
the Court may give directions as to the further conduct of the action andOrder 25, rules 2 to 7 shall, with the omission of so much of rule 7(1) as requires parties toserve a notice specifying the orders and directions which they require and with any other necessary modifications, apply as if the applicationunder rule l of this Order or rule 5 thereof, as the case may be, on which theorder was made were a summons for directions.
(2) In particular, and if the parties consent, the Court may direct that theclaim in question and any other claim in the action be tried by the Registrarunder the provisions of these Rules relating to the trial of causes or mattersor questions or issues by the Registrar.
Costs. (0.14, r.7).
7. (1) If the plaintiff makes an application under rule l where thecase is not within this Order or if it appears to the Court that the plaintiffknew that the defendant relied on a contention which would entitle him tounconditional leave to defend, then, without prejudice to Order 59, and, in particular, to rule 4(1) thereof, the Court may dismissthe application with costs and may require the costs to be paid by himforthwith.
(2) The Court shall have the same power to dismiss an application under rule5 as it has under paragraph (1) to dismiss an application under rule 1, and thatparagraph shall apply accordingly with the necessary modifications.
Right to proceed with residue of action or counter-claim. (0.14,r.8).
8. (1) Where on an application under rule 1 the plaintiff obtainsjudgment on a claim or a part of a claim against any defendant, he may proceedwith the action as respects any other claim or as respects the remainder of theclaim or against any other defendant.
(2) Where on an application under rule 5 a defendant obtains judgment on aclaim or part of a claim made in a counter-claim against the plaintiff, he mayproceed with the counter-claim as respects any other claim or as respects theremainder of the claim or against any other defendant to the counter-claim.
Judgment for delivery up of movable. (0.14, r.9).
9. Where the claim to which an application under rule 1 or rule 5relates is for the delivery up of specific movable property and the Court givesjudgment under this Order for the applicant, it shall have the same power toorder the party against whom judgment is given to deliver up the propertywithout giving him an option to retain it on paying the assessed value thereofas if the judgment had been given after trial.
Relief against forfeiture. (0.14, r.10).
10. A tenant shall have the same right to apply for relief afterjudgment for possession of immovable property on the ground of forfeiture fornon-payment of rent has been given under this Order as if the judgment had beengiven after trial.
Setting aside judgment. (0.14, r.11).
11. Any judgment given against a party who does not appear at thehearing of an application under rule 1 or rule 5 may be set aside or varied bythe Court on such terms as it thinks just.
ORDER 14A
DETERMINATION OF LAW OR CONSTRUCTION
Question of law. (0.14A, r.1). [S 7/99]
1. (1) The Court may upon the application of a party or of its ownmotion determine any question of law or construction of any document arising inany cause or matter at any stage of the proceedings where it appears to theCourt that —
(a) such question is suitable for determination without afull-trial of the action;
and
(b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issuetherein.
(2) Upon such determination the Court may dismiss the cause or matter ormake such order or judgment as it thinks just.
(3) The Court shall not determine any question under this Order unless theparties have had an opportunity of being heard on the question.
(4) Nothing in this Order shall limit the powers of the Court under Order18, rule 18, or any other provision of these Rules.
Application. (0.14A, r.2). [S 7/99]
2. An application under rule 1 may be made by summons or motion or(notwithstanding Order 32, rule 1) may be made orally in the course of anyinterlocutory application to the Court.
ORDER 15
CAUSES OF ACTION, COUNTER-CLAIMS AND PARTIES
Joinder of causes of action. (0.15, r.1).
1. (1) Subject to rule 5(1), a plaintiff may in one action claimrelief against the same defendant in respect of more than one cause of action—
(a) if the plaintiff claims, and the defendant is alleged to beliable, in the same capacity in respect of all the causes of action; or
(b) if the plaintiff claims or the defendant is alleged to beliable in the capacity of executor or administrator of an estate in respect ofone or more of the causes of action and in his personal capacity but withreference to the same estate in respect of all the others; or
(c) with the leave of the Court.
(2) An application for leave under this rule must be made ex parte by summons supported by affidavit before the issue of the writ or originatingsummons, as the case may be, and the affidavit must state the grounds of theapplication.
Counter-claim against plaintiff. (0.15, r.2).
2. (1) Subject to rule 5(2), a defendant in any action who allegesthat he has any claim or is entitled to any relief or remedy against a plaintiffin the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action,make a counter-
claim in respect of that matter; and where he does so he must add thecounter-claim to his defence.
(2) Rule 1 shall apply in relation to a counter-claim as if thecounter-claim were a separate action and as if the person making thecounter-claim were the plaintiff and the person against whom it is made adefendant.
(3) A counter-claim may be proceeded with notwithstanding that judgment isgiven for the plaintiff in the action or that the action is stayed,discountinued or dismissed.
(4) Where a defendant establishes a counter-claim against the claim of theplaintiff and there is a balance in favour of one of the parties, the Court maygive judgment for the balance, so, however, that this provision shall not betaken as affecting the Court’s discretion with respect to costs.
Counter-claim against additional parties. (0.15, r.3).
3. (1) Where a defendant to an action who makes a counter-claimagainst the plaintiff alleges that any other person (whether or not a party tothe action) is liable to him along with the plaintiff in respect of thesubject-matter of the counter-claim, or claims against such other person anyrelief relating to or connected with the original subject-matter of the action,then, subject to rule 5(2) he may join that other person as a party against whomthe counter- claim is made.
(2) Where a defendant joins a person as a party against whom he makes acounter- claim, he must add that person’s name to the title of the actionand serve on him a copy of the counter-claim; and a person on whom a copy of acounter-claim is served under this paragraph shall, if he is not already a partyto the action, become a party to it as from the time of service with the samerights in respect of his defence to the counter-claim and otherwise as if he hadbeen duly sued in the ordinary way by the party making the counter- claim.
(3) A defendant who is required by paragraph (2) to serve a copy of thecounter- claim made by him on any person who before service is already a partyto the action must do so within the period within which, by virtue of Order 18,rule 2, he must serve on the plaintiff the defence to which the counter-claim isadded.
(4) Where by virtue of paragraph (2) a copy of a counter-claim is requiredto be served on a person who is not already a party to the action, the followingprovisions of these Rules, namely, Order 10 (except rule 1(4)), Orders 11 to 13and Order 70, rule 3, shall, subject to the last foregoing paragraph, apply in relation to the counter-claim and the proceedings arising fromit as if —
(a) the counter-claim were a writ and the proceedings arising fromit an action;
and
(b) the party making the counter-claim were a plaintiff and theparty against whom it is made a defendant in that action.
(5) A copy of a counter-claim required to be served on a person who is notalready a party to the action must be indorsed with a notice, in Form 19,addressed to that person —
(a) stating the effect of Order 12, rule 1, as applied by paragraph(4); and
(b) stating that he may enter an appearance in Form 20 and explaining how he may do so.
Joinder of parties. (0.15, r.4).
4. (1) Subject to rule 5(1), two or more persons may be joinedtogether in one action as plaintiffs or as defendants with the leave of theCourt or where —
(a) if separate actions were brought by or against each of them, asthe case may be, some common question of law or fact would arise in all theactions; and
(b) all rights to relief claimed in the action (whether they arejoint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.
(2) Where the plaintiff in any action claims any relief to which any otherperson is entitled jointly with him, all persons so entitled must, subject tothe provisions of any written law and unless the Court gives leave to thecontrary, be parties to the action and any of them who does not consent to beingjoined as plaintiff must, subject to any order made by the Court on anapplication for leave under this paragraph, be made a defendant.
This paragraph shall not apply to a probate action.
(3) Where relief is claimed in an action against a defendant who is jointlyliable with some other person and also severally liable, that other person neednot be made a defendant to the action; but where persons are jointly, but notseverally, liable under a contract and relief is claimed against some but notall of those persons in an action in respect of that contract, the Court may, onthe application of any defendant to the action, by order stay proceedings in theaction until the other persons so liable are added as defendants.
Court may order separate trials etc. (0.15, r.5).
5. (1) If claims in respect of two or more causes of action areincluded by a plaintiff in the same action or by a defendant in a counter-claim,or if two or more plaintiffs or defendants are parties to the same action, andit appears to the Court that the joinder of causes of action or of parties, asthe cause may be, may embarrass or delay the trial or is otherwise inconvenient,the Court may order separate trials or make such other order as may beexpedient.
(2) If it appears on the application of any party against whom acounter-claim is made that the subject-matter of the counter-claim ought for anyreason to be disposed of by a separate action, the Court may order thecounter-claim to be struck out or may order it to be tried separately or makesuch other order as may be expedient.
Misjoinder and non-joinder of parties. (0.15, r.6).
6. (1) No cause or matter shall be defeated by reason of themisjoinder or non-joinder of any party; and the Court may in any cause or matterdetermine the issues or questions in dispute so far as they affect the rightsand interests of the persons who are parties to the cause or matter.
(2) At any stage of the proceedings in any cause or matter the Court may onsuch terms as it thinks just and either of its own motion or on application—
(a) order any person who has been improperly or unnecessarily madea party or who has for any reason ceased to be a proper or necessary party, tocease to be a party;
(b) order any of the following persons to be added as a party,namely —
(i) any person who ought to have been joined as a party or whose presencebefore the Court is necessary to ensure that all matters in dispute in the causeor matter may be effectually and completely determined and adjudicated upon;or
(ii) any person between whom and any party to the cause or matter theremay exist a question or issue arising out of or relating to orconnected with any relief or remedy claimed in the cause or matter which in theopinion of the Court it would be just and convenient to determine as between himand that party as well as between the parties to the cause or matter,
but no person shall be added as a plaintiff without his consent signified inwriting or in such other manner as may be authorised.
(3) An application by any person for an order under paragraph (2) adding himas a party must, except with the leave of the Court, be supported by anaffidavit showing his interest in the matters in dispute in the cause or matteror, as the case may be, the question or issue to be determined as between himand any party to the cause or matter.
Proceedings against estates. (0.15, r.6A).
6A. (1) Where any person against whom an action would have lain hasdied but the cause of action survives, the action may, if no grant of probate oradministration has been made, be brought against the estate of the deceased.
(2) Without prejudice to the generality of paragraph (1), an action broughtagainst “the personal representatives of A.B. deceased” shall betreated, for the purposes of that paragraph, as having been brought against hisestate.
(3) An action purporting to have been commenced against a person shall betreated, if he was dead at its commencement, as having been commenced againsthis estate in accordance with paragraph (l), whether or not a grant of probateor administration was made before its commencement.
(4) In any such action as is referred to in paragraph (1) or (3) —
(a) the plaintiff shall, during the period of validity for serviceof the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased’s estate for the purposeof the proceedings or, if a grant of probate or administration has been made, for an order that the personal representative of the deceased bemade a party to the proceedings, and in either case for an order that theproceedings be carried on against the person appointed or, as the case may be,against the personal representative, as if he had been substituted for theestate;
(b) the Court may, at any stage of the proceedings and on suchterms as it thinks just and either of its own motion or on application, make anysuch order as is mentioned in sub-paragraph (a) and allow such amendments(if any) to be made and make such other order as the Court thinks necessary inorder to ensure that all matters in dispute in the proceedings may beeffectually and completely determined and adjudicated upon.
(5) Before making an order under paragraph (4) the Court may require noticeto be given to any insurer of the deceased who has an interest in theproceedings and to such (if any) of the persons having an interest in the estateas it thinks fit.
(5A) Where an order is made under paragraph (4) appointing the ProbateOfficer to represent the deceased’s estate, the appointment shall belimited to his accepting service of the writ or originating summons by which theaction was begun unless, either on making such an order or on a subsequentapplication, the court, with the consent of the Probate Officer, directs thatthe appointment shall extend to taking further steps in the proceedings.
(6) Where an order is made under paragraph (4), rules 7(4) and 8(3) and (4)shall apply as if the order had been made under rule 7 on the application of theplaintiff.
(7) Where no grant of probate or administration has been made, any judgmentor order given or made in the proceedings shall bind the estate to the sameextent as it would have been bound if a grant had been made and a personalrepresentative of the deceased had been a party to the proceedings.
Change of parties by reason of deaths etc. (0.15, r.7).
7. (1) Where a party to an action dies or becomes bankrupt but thecause of action survives, the action shall not abate by reason of the death orbankruptcy.
(2) Where at any stage of the proceedings in any cause or matter theinterest or liability of any party is assigned or transmitted to or devolvesupon some other person, the Court may, if it thinks it necessary in order toensure that all matters in dispute in the cause or matter may be effectually andcompletely determined and adjudicated upon, order that other person to be made aparty to the cause or matter and the proceedings to be carried on as if he hadbeen substituted for the first-mentioned party.
An application for an order under this paragraph may be made exparte.
(3) An order may be made under this rule for a person to be made a party toa cause or matter notwithstanding that he is already a party to it on the otherside of the record, or on the same side but in a different capacity; but—
(a) if he is already a party on the other side, the order shall betreated as containing a direction that he shall cease to be a party on thatother side; and
(b) if he is already a party on the same side but in anothercapacity, the order may contain a direction that he shall cease to be a party inthat other capacity.
(4) The person on whose application an order is made under this rule mustprocure the order to be noted in the cause book, and after the order has been sonoted that person must, unless the Court otherwise directs, serve the order onevery other person who is a party to the cause or matter or who becomes orceases to be a party by virtue of the order and serve with the order on anyperson who becomes a defendant a copy of the writ or originating summons bywhich the cause or matter was begun.
(5) Any application to the Court by a person served with an order made ex parte under this rule for the discharge or variation of the order mustbe made within 14 days after the service of the order on that person.
Provisions consequential on making of order under rule 6 or 7. (0.15,r.8).
8. (1) Where an order is made under rule 6 the writ by which theaction in question was begun must be amended accordingly and must be indorsedwith —
(a) a reference to the order in pursuance of which the amendment ismade; and
(b) the date on which the amendment is made,
and the amendment must be made within such period as may be specified in theorder or, if no period is so specified, within 14 days after the making of theorder.
(2) Where by an order under rule 6 a person is to be made a defendant, therules as to service of a writ of summons shall apply accordingly to service ofthe amended writ on him, but before serving the writ on him the person on whoseapplication the order was made must procure the order to be noted in the causebook.
(3) Where by an order under rule 6 or 7 a person is to be made a defendant,the rules as to entry of appearance shall apply accordingly to entry ofappearance by him, subject, in the case of a person to be made a defendant by anorder under rule 7, to the modification that the time limited for appearingshall begin with the date on which the order is served on him under rule 7(4)or, if the order is not required to be served on him, with the date on which theorder is noted in the cause book. The entry of appearance must be in Form21.
(4) Where by an order under rule 6 or 7 a person is to be added as a partyor is to be made a party in substitution for some other party, that person shallnot become a party until —
(a) where the order is made under rule 6, the writ has been amendedin relation to him under this rule and (if he is a defendant) has been served onhim; or
(b) where the order is made under rule 7, the order has been servedon him under rule 7(4) or, if the order is not required to be served on him, theorder has been noted in the cause book,
and where by virtue of the foregoing provision a person becomes a party insubstitution for some other party, all things done in the course of theproceedings before the making of the order shall have effect in relation to thenew party as they had in relation to the old, except that entry of appearance bythe old party shall not dispense with entry of appearance by the new in Form21.
(5) The foregoing provisions of this rule shall apply in relation to anaction begun by originating summons as they apply in relation to an action begunby writ.
Failure to proceed after death of party. (0.15, r.9).
9. (1) If after the death of a plaintiff or defendant in any actionthe cause or action survives, but no order under rule 7 is made substituting asplaintiff any person in whom the cause of action vests or, as the case may be,the personal representatives of the deceased defendant, the defendant or, as thecase may be, those representatives may apply to the Court for an order thatunless the action is proceeded with within such time as may be specified in theorder the action shall be struck out as against the plaintiff or defendant, asthe case may be, who has died; but where it is the plaintiff who has died, theCourt shall not make an order under this rule unless satisfied that due noticeof the application has been given to the personal representatives (if any) ofthe deceased plaintiff and to any other interested persons who, in the opinionof the Court, shall be notified.
(2) Where in any action a counter-claim is made by a defendant, this ruleshall apply in relation to the counter-claim as if the counter-claim were aseparate action and as if the defendant making the counter-claim were theplaintiff and the person against whom it is made a defendant.
Action for possession of immovable property. (0.15, r.10).
10. (1) Without prejudice to rule 6, the Court may at any stage ofthe proceedings in an action for possession of immovable property order anyperson not a party to the action who is in possession of the immovable property(whether in actual possession or by a tenant) to be added as a defendant.
(2) An application by any person for an order under this rule may be made bysummons ex parte , supported by an affidavit showing that he is in possession of the immovable property in question and if by a tenant,naming him.
(3) A person added as a defendant by an order under this rule must serve acopy of the order on the plaintiff and must enter an appearance in the actionwithin such period, if any, as may be specified in the order or, if no period isso specified, within 7 days after the making of the order, and the rules as toentry of appearance shall apply accordingly to entry of appearance by him.
Relator actions. (0.15, r.11).
11. Before the name of any person is used in any action as a relator,that person must give a written authorisation so to use his name to hissolicitor and the authorisation must be filed in the Registry.
Representative proceedings. (0.15, r.12).
12. (1) Where numerous persons have the same interest in anyproceedings, not being such proceedings as are mentioned in rule 13, theproceedings may be begun, and, unless the Court otherwise orders, continued, byor against any one or more of them as representing all or as representing allexcept one or more of them.
(2) At any stage of proceedings under this rule the Court may, on theapplication of the plaintiff, and on such terms, if any, as it thinks fit,appoint any one or more of the defendants or other persons as representing whomthe defendants are sued to represent all, or all except one or more, of thosepersons in the proceedings; and where, in exercise of the power conferred bythis paragraph, the Court appoints a person not named as a defendant, it shallmake an order under rule 6 adding that person as a defendant.
(3) A judgment or order given in proceedings under this rule shall bebinding on all the persons as representing whom the plaintiffs sue or, as thecase may be, the defendants are sued, but shall not be enforced against anyperson not a party to the proceedings except with the leave of the Court.
(4) An application for the grant of leave under paragraph (3) must be madeby summons which must be served personally on the person against whom it issought to enforce the judgment or order.
(5) Notwithstanding that a judgment or order to which any such applicationrelates is binding on the person against whom the application is made, thatperson may dispute liability to have the judgment or order enforced against himon the ground that by reason of facts and matters particular to his case he isentitled to be exempted from such liability.
(6) The Court hearing an application for the grant of leave under paragraph(3) may order the question whether the judgment or order is enforceable againstthe person against whom the application is made to be tried and determined inany manner in which any issue or question in an action may be tried anddetermined.
Representation of interested person who cannot be ascertained etc. (0.15,r.13).
13. (1) In any proceeding concerning —
(a) the administration of the estate of a deceased person; or
(b) property subject to a trust; or
(c) the construction of a written instrument, including a statute,
the Court, if satisfied that it is expedient so to do, and that one or moreof the conditions specified in paragraph (2) are satisfied, may appoint one ormore persons to represent any person (including an unborn person) or class whois or may be interested (whether presently or for any future, contingent orunascertained interest) in or affected by the proceedings.
(2) The conditions for the exercise of the power conferred by paragraph (1)are as follows:
(a) that the person, the class or some member of the class, cannotbe ascertained or cannot readily be ascertained;
(b) that the person, class or some member of the class, thoughascertained, cannot be found;
(c) that, though the person or the class and the members thereof can be ascertained and found, it appears to the Court expedient(regard being had to all the circumstances, including the amount at stake andthe degree of difficulty of the point to be determined) to exercise the powerfor the purpose of saving expense.
(3) Where in any proceedings to which paragraph (1) applies, the Courtexercises the power conferred by that paragraph, a judgment or order of theCourt given or made when the person or persons appointed in exercise of thatpower are before the Court shall be binding on the person or class representedby the person or persons so appointed.
(4) Where, in any such proceedings, a compromise is proposed and some of thepersons who are interested in, or who may be affected by, the compromise are notparties to the proceedings (including unborn or unascertained persons) but—
(a) there is some other person in the same interest before theCourt who assents to the compromise or on whose behalf the Court sanctions thecompromise; or
(b) the absent persons are represented by a person appointed underparagraph (1) who so assent,
the Court, if satisfied that the compromise will be for the benefit of theabsent persons and that it is expedient to exercise this power, may approve thecompromise and order that it shall be binding on the absent persons, and theyshall be bound accordingly except where the order has been obtained by fraud ornon-disclosure of material facts.
Representation of beneficiaries by trustees etc. (0.15, r.14).
14. (1) Any proceedings, including proceedings to enforce a securityby foreclosure or otherwise, may be brought by or against trustees, executors or administrators in their capacity as such without joining any ofthe persons having a beneficial interest in the trust or estate, as the case maybe; and any judgment or order given or made in those proceedings shall be binding on those persons unless the Court in the same or other proceedings otherwise orders on the ground that the trustees, executors oradministrators, as the case may be, could not or did not in fact represent theinterest of those persons in the first-mentioned proceedings.
(2) Paragraph (1) is without prejudice to the power of the Court to orderany person having such an interest as aforesaid to be made a party to theproceedings or to make an order under rule 13.
Representation of deceased person interested in proceedings. (0.15,r.15).
15. (1) Where in any proceedings it appears to the Court that adeceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to theproceedings, proceed in the absence of a person representing the estate of thedeceased person or may by order appoint a person to represent that estate forthe purposes of the proceedings; and any such order, and any judgment or ordersubsequently given, or made in the proceedings, shall bind the estate of thedeceased person to the same extent as it would have been bound had a personalrepresentative of that person been a party to the proceedings.
(2) Before making an order under this rule, the Court may require notice ofthe application for the order to be given to such (if any) of the persons havingan interest in the estate as it thinks fit.
Declaratory judgment. (0.15, r.16).
16. No action or other proceeding shall be open to objection on theground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether or notconsequential relief is or could be claimed.
Conduct of proceedings. (0.15, r.17).
17. The Court may give the conduct of any action, inquiry or otherproceeding to such person as it thinks fit.
ORDER 16
THIRD PARTY AND SIMILAR PROCEEDINGS
Third party notice. (0.16, r.1).
1. (1) Where in any action a defendant who has entered an appearance—
(a) claims against a person not already a party to the action anycontribution or indemnity; or
(b) claims against such a person any relief or remedy relating toor connected with the original subject-matter of the action and substantiallythe same as some relief or remedy claimed by the plaintiff; or
(c) requires that any question or issue relating to or connected withthe original subject-matter of the action should be determined not only asbetween the plaintiff and the defendant but also as between either or both ofthem and a person not already a party to the action,
then, subject to paragraph (2), the defendant may issue a notice in Form 22or Form 23, whichever is appropriate (in this Order referred to as a third partynotice), containing a statement of the nature of the claim made against him and,as the case may be, either of the nature and grounds of the claim made by him orof the question or issue required to be determined.
(2) A defendant to an action may not issue a third party notice without theleave of the Court unless the action was begun by writ and he issues the noticebefore serving his defence on the plaintiff.
(3) Where a third party notice is served on the person against whom it isissued, he shall as from the time of service be a party to the action (in thisOrder referred to as a third party) with the same rights in respect of hisdefence against any claim made against him in the notice and otherwise as if hehad been duly sued in the ordinary way by the defendant by whom the notice isissued.
Application for leave to issue third party notice. (0.16, r.2).
2. (1) Application for leave to issue a third party notice may bemade by ex parte
summons in Form 24 but the Court may direct the summons to be served.
(2) An application for leave to issue a third party notice must be supportedby an affidavit stating —
(a) the nature of the claim made by the plaintiff in theaction;
(b) the stage which proceedings in the action have reached;
(c) the nature of the claim made by the applicant or particulars ofthe question or issue required to be determined, as the case may be, and thefacts on which the proposed third party notice is based; and
(d) the name and address of the person against whom the third partynotice is to be issued.
Issue and service of, and entry of appearance to third party notice. (0.16, r.3).
3. (1) The order granting leave to issue a third party notice maycontain directions as to the period within which the notice is to be issued.
(2) There must be served with every third party notice a copy of the writ or originating summons by which the action was begun and of thepleadings (if any) served in the action.
(3) Subject to the foregoing provisions of this rule, the followingprovisions of these Rules, namely, Order 6, rule 6(3), Order 10 (except rule 1(4)), Order 11,Order 12 and Order 70, rule 3, shall apply in relation to a third party notice and to theproceedings begun thereby as if —
(a) the third party notice were a writ and the proceedings begunthereby an action; and
(b) the defendant issuing the third party notice were a plaintiffand the person against whom it is issued a defendant in that action.
Third party directions. (0.16, r.4).
4. (1) If the third party enters an appearance in Form 25, thedefendant who issued third party notice must, by summons in Form 26 to be servedon all the other parties to the action, apply to the Court for directions.
(2) If no summons is served on the third party under paragraph (1), thethird party may, not earlier than 7 days after entering an appearance, bysummons in Form 26 to be served on all the other parties to the action, apply tothe Court for directions or for an order to set aside the third partynotice.
(3) On an application for directions under this rule the Court may—
(a) if the liability of the third party to the defendant who issuedthe third party notice is established on the hearing, order such judgment as thenature of the case may require to be entered against the third party in favourof the defendant; or
(b) order any claim, question or issue stated in the third partynotice to be tried in such manner as the Court may direct; or
(c) dismiss the application and terminate the proceedings on the thirdparty notice,
and may do so either before or after any judgment in the action has beensigned by the plaintiff against the defendant.
(4) On an application for directions under this rule the Court may give thethird party leave to defend the action, either alone or jointly with anydefendant, upon such terms as may be just, or to appear at the trial and to takesuch part therein as may be just, and generally may make such orders and givesuch directions as appear to the Court proper for having the rights andliabilities of the parties most conveniently determined and enforced and as tothe extent to which the third party is to be bound by any judgment or decisionin the action.
(5) Any order made or direction given under this rule must be in Form 27 andmay be varied or rescinded by the Court at any time.
Default of third party etc. (0.16, r.5).
5. (1) If a third party does not enter an appearance or, having beenordered to serve a defence, fails to do so —
(a) he shall be deemed to admit any claim stated in the third partynotice and shall be bound by any judgment (including judgment by consent) ordecision in the action in so far as it is relevant to any claim, question orissue stated in that notice; and
(b) the defendant by whom the third party notice was issued may, ifjudgment in default is given against him in the action, at any time aftersatisfaction of that judgment and, with the leave of the Court, before satisfaction thereof, enter judgment against the third party in respect of anycontribution or against the third party in respect of any contribution or indemnity claimed in the notice, and,with the leave of the Court, in respect of any other relief or remedy claimedtherein.
(2) If a third party or the defendant by whom a third party notice wasissued makes default in serving any pleading which he is ordered to serve, the Court may, on the application by summons of that defendant orthe third party, as the case may be, order such judgment to be entered for theapplicant as he is entitled to on the pleadings or may make such other order asmay appear to the Court necessary to do justice between the parties.
(3) The Court may at any time set aside or vary a judgment entered underparagraph (1) (b) or paragraph (2) on such terms (if any) as it thinks just.
Setting aside third party proceedings. (0.16, r.6).
6. Proceedings on a third party notice may, at any stage of theproceedings, be set aside by the Court.
Judgment between defendant and third party. (0.16, r.7).
7. (1) Where in any action a defendant has served a third partynotice, the Court may at or after the trial of the action, or, if the action isdecided otherwise than by trial, on an application by summons or motion, ordersuch judgment as the nature of the case may require to be entered for thedefendant against the third party or for the third party against thedefendant.
(2) Where in an action judgment is given against a defendant and judgment isgiven for the defendant against a third party, execution shall not be issuedagainst the third party without the leave of the Court until the judgmentagainst the defendant has been satisfied.
Claims and issues between a defendant and some other party. (0.16,r.8).
8. (1) Where in any action a defendant who has entered an appearance—
(a) claims against a person who is already a party to the actionany contribution or indemnity; or
(b) claims against such a person any relief or remedy relating toor connected with the original subject-matter of the action and substantiallythe same as some relief or remedy claimed by the plaintiff; or
(c) requires that any question or issue relating to or connected withthe original subject-matter of the action should be determined not only asbetween the plaintiff and himself but also as between either or both of them andsome other person who is already a party to the action,
then, subject to paragraph (2), the defendant may, without leave, issue andserve on that person a notice containing a statement of the nature and groundsof his claim or, as the case may be, of the question or issue required to bedetermined.
(2) Where a defendant makes such a claim as is mentioned in paragraph (1)and that claim could be made by him by counter-claim in the action, paragraph(1) shall not apply in relation to the claim.
(3) No appearance to such a notice shall be necessary if the person on whomit is served has entered an appearance in the action or is a plaintiff therein,and the same procedure shall be adopted for the determination between thedefendant by whom, and the person on whom, such a notice is served of the claim,question or issue stated in the notice as would be appropriate under this Orderif the person served with the notice were a third party and (where he hasentered an appearance in the action or is a plaintiff) had entered an appearanceto the notice.
(4) Rule 4(2) shall have effect in relation to proceedings on a noticeissued under this rule as if for the words “7 days after entering anappearance” there were substituted the words “14 days after serviceof the notice on him”.
Claims by third and subsequent parties. (0.16, r.9).
9. (1) Where a defendant has served a third party notice and thethird party makes such a claim or requirement as is mentioned in rule 1 or rule8, this Order shall, with the modification mentioned in paragraph (2) and anyother necessary modifications, apply as if the third party were a defendant; andsimilarly where any further person to whom by virtue of this rule this Orderapplies as if he were a third party makes such a claim or requirement.
(2) The modification referred to in paragraph (1) is that paragraph (3)shall have effect in relation to the issue of a notice under rule 1 by a thirdparty in substitution for rule 1(2).
(3) A third party may not issue a notice under rule 1 without the leave ofthe Court unless the action in question was begun by writ and he issues thenotice before the expiration of 14 days after the time limited for appearing tothe notice issued against him.
Offer of contribution. (0.16, r.10).
10. If, before the trial of an action, a party to the action who,either as a third party or as one of two or more tortfeasors liable in respectof the same damage, stands to be held liable in the action to another party tocontribute towards any debt or damages which may be recovered against that otherparty in the action, makes (without prejudice to his defence) a written offer tothat other party to contribute to a specified extent to the debt or damages,then, notwithstanding that he reserves the right to bring the offer to theattention of the Judge at the trial, the offer shall not be brought to theattention of the Judge until after all questions of liability and amount of debtor damages have been decided.
Counterclaim by defendant. (0.16, r.11).
11. Where in any action a counterclaim is made by a defendant, theforegoing provisions of this Order shall apply in relation to the counter-claimas if the subject-matter of the counter-claim were the original subject-matterof the action, and as if the person making the counter-claim were the plaintiffand the person against whom it is made a defendant.
ORDER 17
INTERPLEADER
Entitlement to relief by way of interpleader. (0.17, r.1).
1. (1) Where —
(a) a person is under a liability in respect of a debt or inrespect of any money, goods or chattels and he is, or expects to be, sued for orin respect of that debt or money or those goods or chattels by two or morepersons making adverse claims thereto; or
(b) claim is made to any money, goods or chattels taken or intendedto be taken by a sheriff in execution under any process, or to the proceeds orvalue of any such goods or chattels, by a person other than the person againstwhom the process is issued,
the person under liability as mentioned in sub-paragraph (a) or(subject to rule 2) the sheriff, may apply to the Court for relief by way ofinterpleader.
(2) References in this Order to a sheriff shall be construed as includingreferences to any other officer charged with the execution of process by orunder the authority of the High Court.
Claim to goods etc. taken in execution. (0.17, r.2).
2. (1) Any person making a claim to or in respect of any money, goods or other movable property taken or intended to be taken inexecution under process of the Court, or to the proceeds or value of any suchgoods or property, must give notice of his claim in Form 28 to the sheriff charged with the execution of the process and must includein his notice a statement of his address, and that address shall be his addressfor service.
(2) On receipt of a claim made under this rule the sheriff must forthwithgive notice thereof in Form 29 to the execution creditor and the executioncreditor must within 4 days after receiving the notice, give notice in Form 30to the sheriff informing him whether he admits or disputes the claim.
An execution creditor who gives notice in.accordance with this paragraphadmitting a claim shall only be liable to the sheriff for any fees and expensesincurred by the sheriff before receipt of that notice.
(3) Where —
(a) the sheriff receives a notice from an execution creditor underparagraph (2) disputing a claim, or the execution creditor fails, within theperiod mentioned in that paragraph, to give the required notice; and
(b) the claim under this rule is not withdrawn, the sheriff mayapply to the Court for relief under this Order.
(4) A sheriff who receives a notice from an execution creditor underparagraph (2) admitting a claim under this rule shall withdraw from possessionof the money, goods or other movable property claimed.
Mode of application. (0.17, r.3).
3. (1) An application for relief under this Order must be made byoriginating summons unless made in a pending action, in which case it must bemade by summons in the action in Form 31 or Form 32 whichever isappropriate.
(2) No appearance need be entered to an originating summons under thisrule.
(3) Subject to paragraph (4), a summons under this rule must be supported byevidence that the applicant —
(a) claims no interest in the subject matter in dispute other thanfor charges or costs;
(b) does not collude with any of the claimants to thatsubject-matter; and
(c) is willing to pay or transfer that subject-matter into Court or todispose of it as the Court may direct.
(4) Where the applicant is a sheriff, he shall not provide such evidence asis referred to in paragraph (3) unless directed by the Court so to do.
Service of summons. (0.17, r.4).
4. (1) Unless the Court otherwise orders, the originating summons oran interpleader summons ordered under rule 3 must be served personally at least7 days before the return day.
(2) An interpleader summons must be in one of the forms in Form 33.
Powers of Court hearing summons. (0.17, r.5).
5. (1) Where on the hearing of a summons under this Order all thepersons by whom adverse claims to the subject-matter in dispute (hereafter inthis Order referred to as “the claimants”) appear, the Court mayorder —
(a) that any claimant be made a defendant in any action pendingwith respect to the subject-matter in dispute in substitution for or in additionto the applicant for relief under his Order; or
(b) that an issue between the claimants be stated and tried and maydirect which of the claimants is to be plaintiff and which defendant.
(2) Where —
(a) the applicant on a summons under this Order is a sheriff;or (b) all the claimants consent or any of them so requests; or
(c) the question at issue between the claimants is a question of lawand the facts are not in dispute,
the Court may summarily determine the question at issue between the claimantsand make an order accordingly on such terms as may be just.
(3) Where a claimant, having been duly served with a summons for reliefunder this Order, does not appear on the hearing of the summons or, havingappeared, fails or refuses to comply with an order made in the proceedings, theCourt may make an order declaring the claimant, and all persons claiming underhim, for ever barred from prosecuting his claim against the applicant for suchrelief and all persons claiming under him, but such an order shall not affectthe rights of the claimants as between themselves.
Power to order sale of goods taken in execution. (0.17, r.6).
6. Where an application for relief under this Order is made by asheriff who has taken possession of any goods or other movable property inexecution under any process, and a claimant alleges that he is entitled, under abill of sale or otherwise, to the goods or property by war of security for debt,the Court may order those goods or property or any part thereof to be sold andmay direct that the proceeds of sale be applied in such manner and on such termsas may be just and as may be specified in the order.
Power to stay proceedings. (0.17, r.7).
7. Where a defendant to an action applies for relief under this Orderin the action, theCourt may by order stay all further proceedings in the action.
Other powers. (0.17, r.8).
8. Subject to the foregoing rules of this Order, the Court may in orfor the purposes of any interpleader proceedings make such order as to costs orany other matter as it thinks just.
One order in several causes or matters. (0.17, r.9).
9. Where the Court considers it necessary or expedient to make an order in any interpleader proceedings in several causes or matterspending before different Judges, the Court may make such an order; and the ordershall be entitled in all those causes or matters and shall be binding on all theparties to them.
Discovery. (0.17, r.10).
10. Orders 24 and 26 shall, with the necessary modifications, apply inrelation to an interpleader issue as they apply in relation to any other causeor matter.
Trial of interpleader issue. (0.17, r.11).
11. (1) Order 35 shall, with the necessary modifications, apply to the trial of an interpleader issue as it applies to the trial ofan action.
(2) The Court by whom an interpleader issue is tried may give such judgmentor make such order as finally to dispose of ail questions arising in theinterpleader proceedings.
(3) The judgment must be in one of the forms in Form 34.
ORDER 18
PLEADINGS
Service of statement of claim. (0.18, r.1).
1. Unless the Court gives leave to the contrary or a statement ofclaim is indorsed on the writ, the plaintiff must serve a statement of claim onthe defendant or, if there are two or more defendants, on each defendant, andmust do so either when the writ, or notice of the writ, is served on thatdefendant or at any time after service of the writ or notice but before theexpiration of 14 days after that defendant enters an appearance.
Service of defence. (0.18, r.2).
2. (1) Subject to paragraph (2), a defendant who enters an appearancein, and intends to defend, an action must, unless the Court gives leave to thecontrary, serve a defence on the plaintiff before the expiration of 14 daysafter the time limited for appearing or after the statement of claim is servedon him, whichever is the later.
(2) If a summons under Order 14, rule 1, is served on a defendant before heserves his defence, paragraph (1) shall not have effect in relation to himunless by the order made on the summons he is given leave to defend the actionand, in that case, shall have effect as if it required him to serve his defencewithin 14 days after the making of the order or within such other period as maybe specified therein.
Service of reply and defence to counter-claim. (0.18, r.3).
3. (1) A plaintiff on whom a defendant serves a defence must serve areply on that defendant if it is needed for compliance with rule 8; and if noreply is served, rule 14(1) will apply.
(2) A plaintiff on whom a defendant serves a counter-claim must, if heintends to defend it, serve on that defendant a defence to counter-claim.
(3) Where a plaintiff serves both a reply and a defence to counter-claim onany defendant, he must include them in the same document.
(4) A reply to any defence must be served by the plaintiff before theexpiration of 14 days after the service on him of that defence, and a defence tocounterclaim must be served by the plaintiff before the expiration of 14 daysafter the service on him of the counter-claim to which it relates.
Pleadings subsequent to reply. (0.18, r.4).
4. No pleading subsequent to a reply or a defence to counterclaimshall be served except with the leave of the Court.
Pleadings: Formal requirements. (0.18, r.5).
5. (1) Every pleading in an action must bear on its face —
(a) the year in which the writ in the action was issued and thenumber of the action;
(b) the title of the action; and
(c) the description of the pleading.
(2) Every pleading must, if necessary, be divided into paragraphs numbered consecutively, each allegation being in so far as convenient contained in a separate paragraph.
(3) Dates, sums and other numbers must be expressed in a pleading in figuresand not in words.
(4) Every pleading of a party must be indorsed —
(a) where the party sues or defends in person, with his name andaddress;
(b) in any other case, with the name or firm and business addressof the solicitor by whom it was served.
(5) Every pleading of a party must be signed by the party’s solicitoror by the party, if he sues or defends in person.
Facts, not evidence, to be pleaded. (0.18, r.6).
6. (1) Subject to the provisions of this rule and rules 10, 11 and12, every pleading must contain, and contain only, a statement in a summary formof the material facts on which the party pleading relies for his claim ordefence, as the case may be, but not the evidence by which those facts are to beproved, and the statement must be as brief as the nature of the case admits.
(2) Without prejudice to paragraph (1), the effect of any document or thepurport of any conversation referred to in the pleading must, if material, bebriefly stated, and the precise words of the document or conversation shall notbe stated, except in so far as those words are themselves material.
(3) A party need not plead any fact if it is presumed by law to be true orthe burden of disproving it lies on the other party, unless the other party hasspecifically denied it in his pleading.
(4) A statement that a thing has been done or that an event has occurred,being a thing or event the doing or occurrence of which, as the case may be,constitutes a condition precedent necessary for the case of a party is to beimplied in his pleading.
Matters which must be specificially pleaded. (0.18, r.7).
7. (1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance,release, any relevant statute of limitation, fraud or any fact showingillegality —
(a) which he alleges makes any claim or defence of the oppositeparty not maintainable; or
(b) which, if not specifically pleaded, might take the oppositeparty by surprise;
or
(c) which raises issues of fact not arising out of the precedingpleading.
(2) Without prejudice to paragraph (1), a defendant to an action for therecovery of immovable property must plead specifically every ground of defenceon which he relies, and a plea that he is in possession of the immovableproperty by himself or his tenant is not sufficient.
Conviction. (0.18, r.7A). [S 7/99]
7A. (1) If in any action which is to be tried with pleadings anyparty intends to adduce evidence that a person was convicted of an offence by or before a Court in Brunei Darussalam or by a Court-Martialthere or elsewhere, he must include in his pleading a statement of his intentionwith particulars of —
(a) the conviction and the date thereof;
(b) the Court or Court-Martial which made the conviction; and
(c) the issue in the proceedings to which the conviction isrelevent.
(2) If in any action which is to be tried with pleadings any party intendsto adduce evidence that a person was found guilty of adultery in matrimonialproceedings or has been found to be the father of a child in relevant proceedings before any Court in Brunei Darussalam or has been adjudged tobe the father of a child in affiliation proceedings before a Court in BruneiDarussalam, he must include in his pleading a statement of his intention withparticulars of —
(a) the finding or adjudication and the date thereof;
(b) the Court which made the finding or adjudication and theproceedings in which it was made; and
(c) the issue in the proceedings to which the finding or adjudicationis relevant.
(3) Where a party’s pleading includes such a statement as is mentionedin paragraph(1) or (2) then if the opposite party —
(a) denies the conviction, finding of adultery or adjudication ofpaternity to which the statement relates; or
(b) alleges that the conviction, finding or adjudication waserroneous; or
(c) denies that the conviction, finding or adjudication is relevant toany issue in the proceedings,
he must make the denial or allegation in his pleading.
Matter may be pleaded whenever arising. (0.18, r.8).
8. Subject to rules 7(1), 10 and 15(2), a party may in any pleadingplead any matter which has arisen at any time, whether before or since the issueof the writ.
Departure. (0.18, r.9).
9. (1) A party shall not in any pleading make an allegation of fact,or raise any new ground or claim, inconsistent with a previous pleading ofhis.
(2) Paragraph (1) shall not be taken as prejudicing the right of a party toamend, or apply for leave to amend his previous pleading so as to plead theallegations or claims in the alternative.
Points of law may be pleaded. (0.18, r.10).
10. A party may by his pleading raise any point of law.
Particulars of pleading. (0.18, r.11).
11. (1) Subject to paragraph (2), every pleading must contain thenecessary particulars of any claim, defence or other matter pleaded including,without prejudice to the generality of the foregoing words —
(a) particulars of any misrepresentation, fraud, breach of trust,wilful default or undue influence on which the party pleading relies; and
(b) where a party pleading alleges any condition of the mind of anyperson, whether any disorder or disability of mind or any malice, fraudulentintention or other condition of mind except knowledge, particulars of the factson which the party relies.
(1A) Subject to paragraph (1B), a plaintiff in action for personal injuriesshall serve with his statement of claim — [S 77/00]
(a) a medicial report; and
(b) a statement of the special damages claimed.
(1B) Where the documents to which paragraph (1A) applies are not served withthe statement of claim, the Court may — [S 77/00]
(a) specify the period of time within which they are to beprovided; or
(b) make such other order as it thinks fit (including an orderdispensing with the requirements of paragraph (1A) or staying theproceedings).
(1C) For the purposes of this rule — [S 77/00]
“medical report” means a report substantiating all the personalinjuries alleged in the statement of claim which the plaintiff proposes toadduce in evidence as part of his case at the trial;
“a statement of the special damages claimed” means a statementgiving full particulars of the special damages claimed for expenses and losses already incurred and an estimate of any future expenses and losses(including loss of earings and of pension rights).
(2) Where it is necessary to give particulars of debt, expenses or damagesand those particulars exceed 3 folios, they must be set out in a separatedocument referred to in the pleading and the pleading must state whether thedocument has already been served and, if so, when, or is to be served with thepleading.
(3) The Court may order a party to serve on any other party particulars ofany claim, defence or other matter stated in his pleading, or in any affidavitof his ordered to stand as a pleading, or a statement of the nature of the caseon which he relies, and the order may be made on such terms as the Court thinksjust.
(4) Where a party alleges as a fact that a person had knowledge or notice ofsome fact, matter or thing, then, without prejudice to the generality ofparagraph (3), the Court may, on such terms as it thinks just, order that partyto serve on any other party —
(a) where he alleges knowledge, particulars of the facts on whichhe relies; and
(b) where he alleges notice, particulars of the notice.
(5) An order under this rule shall not be made before service of the defenceunless, in the opinion of the Court, the order is necessary or desirable toenable the defendant to plead or for some other special reason.
(6) Where the applicant for an order under this rule did not apply by letterfor the particulars he requires, the Court may refuse to make the order unlessof opinion that there were sufficient reasons for an application by letter nothaving been made.
(7) The particulars requested or ordered and supplied must be served inaccordance with Form 35.
Admissions and denials. (0.18, r.12).
12. (1) Subject to paragraph (4), any allegation of fact made by aparty in his pleading is deemed to be admitted by the opposite party unless itis traversed by that party in his pleading or a joinder of issue under rule 14operates as a denial of it.
(2) A traverse may be made either by a denial or by a statement ofnon-admission and either expressly or by necessary implication.
(3) Subject to paragraph (4) every allegation of fact made in a statement ofclaim or counterclaim which the party on whom it is served does not intend toadmit must be specifically traversed by him in his defence or defence tocounterclaim, as the case may be; and a general denial of such allegations, or ageneral statement of non-admission of them, is not a sufficient traverse ofthem.
(4) Any allegation that a party has suffered damage and any allegation as tothe amount of damages is deemed to be traversed unless specificallyadmitted.
Denial by joinder of issue. (0.18, r.13).
13. (1) If there is no reply to a defence, there is an impliedjoinder of issue on that defence.
(2) Subject to paragraph (3) —
(a) there is at the close of pleadings an implied joinder of issueon the pleading last served; and
(b) a party may in his pleading expressly join issue on the nextpreceding pleading.
(3) There can be no joinder of issue, implied or express, on a statement ofclaim or counterclaim.
(4) A joinder of issue operates as a denial of every material allegation offact made in the pleading on which there is an implied or express joinder ofissue unless, in the case of an express joinder of issue, any such allegation isexcepted from the joinder and is stated to be admitted, in which case theexpress joinder of issue operates as a denial of every other suchallegation.
Statement of claim. (0.18, r.14).
14. (1) A statement of claim must state specifically the relief orremedy which the plaintiff claims; but costs need not be specificallyclaimed.
(2) A statement of claim must not contain any allegation or claim in respectof a cause of action unless that cause of action is mentioned in the writ orarises from facts which are the same as, or include or form part of, factsgiving rise to a cause of action so mentioned; but, subject to that, a plaintiffmay in his statement of claim alter, modify or
extend any claim made by him in the indorsement of the writ without amending the indorsement.
Defence of tender. (0.18, r.15).
15. Where in any action a defence of tender before action is pleaded,the defendant must pay into Court in accordance with Order 22 the amount allegedto have been tendered, and the tender shall not be available as a defence unlessand until payment into Court has been made.
Defence of set-off. (0.18, r.16).
16. Where a claim by a defendant to a sum of money (whether of anascertained amount or not) is relied on as a defence to the whole or part of aclaim made by the plaintiff, it may be included in the defence and set-offagainst the plaintiff’s claim, whether or not it is also added as acounter-claim.
Counterclaim and defence to counter-claim. (0.18, r.17).
17. Without prejudice to the general application of this Order to acounter-claim and a defence to counter-claim or to any provision thereof which applies to either of those pleadings specifically —
(a) rule 15(1) shall apply to a counter-claim as if thecounter-claim were a statement of claim and the defendant making it aplaintiff.
(b) rules 8(2), 16 and 17 shall, with the necessary modifications,apply to a defence to counter-claim as they apply to a defence.
Striking out pleadings and indorsements. (0.18, r.18).
18. (1) The Court may at any stage of the proceedings order to bestruck out or amended any pleading or the indorsement of any writ in the action,or anything in any pleading or in the indorsement, on the ground that—
(a) it discloses no reasonable cause of action or defence, as thecase may be; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action;or
(d) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be enteredaccordingly, as the case may be.
(2) No evidence shall be admissible on an application under paragraph (1) (a) .
(3) This rule shall, so far as applicable, apply to an originating summonsand a petition as if the summons or petition, as the case may be, were apleading.
Close of pleadings. (0.18, r.19).
19. (1) The pleadings in an action are deemed to be closed—
(a) at the expiration of 14 days after service of the reply or, ifthere is no reply but only a defence to counter-claim, after service of thedefence to counter-claim; or
(b) if neither a reply nor a defence to counter-claim is served, atthe expiration of 14 days after service of the defence.
(2) The pleadings in an action are deemed to be closed at the time providedby paragraph (1) notwithstanding that any request or order for particulars hasbeen made but has not been complied with at that time.
Filing of pleadings. (0.18, r.20).
20. Every pleading must be filed in the Registry.
Trial without pleadings. (0.18, r.21).
21. (1) Where in an action to which this rule applies any defendanthas entered an appearance in the action, the plaintiff or that defendant mayapply to the Court by summons for an order that the action shall be triedwithout pleadings or further pleadings, as the case may be.
(2) If, on the hearing of an application under this rule, the Court issatisfied that the issues in dispute between the parties can be defined withoutpleadings or further pleadings, or that for any other reason the action canproperly be tried without pleadings or further pleadings, as the case may be,the Court shall order the action to be so tried, and may direct the parties toprepare a statement of the issues in dispute or, if the parties are unable toagree such a statement, may settle the statement itself.
(3) Where the Court makes an order under paragraph (2) or where it dismissesan application for such an order, it may, give such directions as to the furtherconduct of the action as may be appropriate, and Order 25, rules 2 to 7 shall,with the omission of so much of rule 7(1) as requires parties to serve a noticespecifying the orders and directions which they desire and with any othernecessary modifications, apply as if the application under this rule were asummons for directions.
(4) This rule applies to every action begun by writ other than one whichincludes —
(a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage;or
(b) a claim by the plaintiff based on an allegation of fraud.
Saving for defence under Merchant Shipping Act. (0.18, r.22).
22. Nothing in Order 70, rules 35 to 38, shall be taken as limitingthe right of any shipowner or other person to rely by way of defence on anyprovision of the Merchant Shipping Act (Chapter 145) which limits the amount ofthe liability in connection with a ship or other property.
ORDER 19
DEFAULT OF PLEADINGS
Default in service of statement of claim. (0.19, r.1).
1. Where the plaintiff is required by these Rules to serve a statementof claim on a defendant and he fails to serve it on him, the defendant may,after the expiration of the period fixed by or under these Rules for service ofthe statement of claim, apply to the Court for an order to dismiss the action,and the Court may by order dismiss the action or make such other order on suchterms as it thinks just.
Default of defence: Claim for liquidated demand. (0.19, r.2).
2. (1) Where the plaintiff’s claim against a defendant is for aliquidated demand only, then, if that defendant fails to serve a defence on theplaintiff, the plaintiff may, after the expiration of the period fixed by orunder these Rules for service of the defence, enter final judgment against thatdefendant for a sum not exceeding that claimed by the writ in respect of thedemand and for costs, and proceed with the action against the other defendants,if any.
(2) Order 13, rule 1(2) shall apply for the purposes of this rule as itapplies for the purposes of that rule.
Default of defence: Claim for unliquidated damages. (0.19, r.3).
3. Where the plaintiff's claim against a defendant is for unliquidateddamages only, then, if that defendant fails to serve a defence on the plaintiff,the plaintiff may, after the expiration of the period fixed by or under theseRules for service of the defence, enter interlocutory judgment against thatdefendant for damages to be assessed and costs, and proceed with the actionagainst the other defendants, if any.
Default of defence: Claim in detinue. (0.19, r.4).
4. Where the plaintiff’s claim against a defendant relates tothe detention of movable property only, then, if that defendant fails to serve adefence on the plaintiff, the plaintiff may, after the expiration of the periodfixed by or under these Rules for service of the defence enter either—
(a) interlocutory judgment against that defendant for the delivery of the property or its value to be assessed and costs; or
(b) interlocutory judgment for the value of the property to beassessed and costs,
and proceed with the action against the other defendants, if any.
Default of defence: Claim for possession of immovable property. (0.19,r.5).
5. (1) Where the plaintiff’s claim against a defendant is forpossession of immovable property only, then, if that defendant fails to serve adefence on the plaintiff, the plaintiff may, after the expiration of the periodfixed by or under these Rules for service of the defence, and on producing acertificate by his solicitor, or (if he sues in person) an affidavit, statingthat he is not claiming any relief in the action of the nature specified inOrder 79, rule 1, enter judgment for possession of the immovable property as against thatdefendant and for costs, and proceed with the action against the otherdefendants, if any.
[S 31/00]
(2) Where there is more than one defendant, judgment entered under this ruleshall not be enforced against any defendant unless and until judgment forpossession of the immovable property has been entered against all thedefendants.
Default of defence: Mixed claim. (0.19, r.6).
6. Where the plaintiff makes against a defendant two or more of theclaims mentioned in rules 2 to 5, and no other claim, then, if the defendantfails to serve a defence on the plaintiff, the plaintiff may, after theexpiration of the period fixed by or under these Rules for service of thedefence, enter against that defendant such judgment in respect of any such claimas he would be entitled to enter under those rules if that were the only claimmade, and proceed with the action against the other defendants, if any.
Default of defence: Other claims. (0.19, r.7).
7. (1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, ifthe defendant or all the defendants (where there is more than one) fails or failto serve a defence on the plaintiff, the plaintiff may, after the expiration ofthe period fixed by or under these Rules for service of the defence, apply tothe Court for judgment, and on the hearing of the application the Court shallgive such judgment as the plaintiff appears entitled to on his statement ofclaim.
(2) Where the plaintiff makes such a claim as is mentioned in paragraph (1)against more than one defendant, then, if one of the defendants makes default asmentioned in that paragraph, the plaintiff may —
(a) if his claim against the defendant in default is severable fromhis claim against the other defendants, apply under that paragraph for judgmentagainst that defendant, and proceed with the action against the otherdefendants; or
(b) set down the action on motion for judgment against thedefendant in default at the time when the action is set down for trial, or isset down on motion for judgment, against the other defendants.
(3) An application under paragraph (1) must be by summons or motion.
Default of defence to counter-claim. (0.19, r.8).
8. A defendant who counter-claims against a plaintiff shall be treatedfor the purposes of rules 2 to 7 as if he were a plaintiff who had made againsta defendant the claim made in the counter-claim and, accordingly, where theplaintiff or any other party against whom the counter-claim is made fails toserve a defence to counter-claim, those rules shall apply as if thecounter-claim were a statement of claim, the defence to counter-claim a defenceand the parties making the counter-claim and against whom it is made wereplaintiffs and defendants respectively, and as if references to the period fixedby or under these Rules for service of the defence were references to the periodso fixed for service of the defence to counter- claim.
Setting aside judgment. (0.19, r.9).
9. The Court may, on such terms as it thinks just, set aside or varyany judgment entered in pursuance of this Order.
ORDER 20
AMENDMENT
Amendment of writ without leave. (0.20, r.1).
1. (1) Subject to paragraph (3), the plaintiff may, without the leaveof the Court, amend the writ once at any time before the pleadings in the actionbegun by the writ are deemed to be closed.
(2) Where a writ is amended under this rule after service thereof, then,unless the Court otherwise directs on an application made ex parte , theamended writ must be served on each defendant to the action.
(3) This rule shall not apply in relation to an amendment which consists of—
(a) the addition, omission or substitution of a party to the actionor an alteration of the capacity in which a party to the action sues or is sued;or
(b) the addition or substitution of a new cause of action; or
(c) (without prejudice to rule 3(1)), an amendment of the statement ofclaim (if any) indorsed on the writ,
unless the amendment is made before service of the writ on any party to theaction.
Amendment of appearance. (0.20, r.2).
2. A defendant may not amend his memorandum of appearance without theleave of the Court.
Amendment of pleadings without leave. (0.20, r.3).
3. (1) A party may, without the leave of the Court, amend anypleading of his once at any time before the pleadings are deemed to be closedand, where he does so, he must serve the amended pleading on the oppositeparty.
(2) Where an amended statement of claim is served on a defendant —
(a) the defendant, if he has already served a defence on the plaintiff, may amend his defence;
(b) the period for service of his defence or amended defence, asthe case may be, shall be either the period fixed by or under these Rules forservice of his defence or a period of 14 days after the amended statement ofclaim is served on him, whichever expires later.
(3) Where an amended defence is served on the plaintiff by a defendant—
(a) the plaintiff, if he has already served a reply on thatdefendant, may amend his reply; and
(b) the period for service of his reply or amended reply, as thecase may be, shall be 14 days after the amended defence is served on him.
(4) In paragraphs (2) and (3) references to a defence and a reply includereferences to a counterclaim and a defence to counter-claim respectively.
(5) Where an amended counter-claim is served by a defendant on a party(other than the plaintiff) against whom the counter-claim is made, paragraph (2)shall apply as if the counter-claim were a statement of claim and as if theparty by whom the counter-claim is made were the plaintiff and the party againstwhom it is made a defendant.
(6) Where a party has pleaded to a pleading which is subsequently amendedand served on him under paragraph (1), then, if that party does not amend hispleading under the foregoing provisions of this rule, he shall be taken to relyon it in answer to the amended pleading, and Order 18, rule 14(2), shall haveeffect in such a case as if the amended pleading had been served at the timewhen that pleading, before its amendment under paragraph (1), was served.
Application for disallowance of amendment made without leave. (0.20,r.4).
4. (1) Within 14 days after the service on a party of a writ amendedunder rule 1(1) or of a pleading amended under rule 3(1) that party may apply tothe Court to disallow the amendment.
(2) Where the Court hearing an application under this rule is satisfied thatif an application for leave to make the amendment in question had been madeunder rule 5 at the date when the amendment was made under rule 1(1) orrule 3(1) leave to make the amendment or part of the amendment would havebeen refused, it shall order the amendment or that part to be struck out.
(3) Any order made on an application under this rule may be made on suchterms as to costs or otherwise as the Court thinks just.
Amendment of writ or pleading with leave. (0.20, r.5).
5. (1) Subject to Order 15, rules 6, 7 and 8 and the followingprovisions of this rule, the Court may at any stage of the proceedings allow theplaintiff to amend his writ, or any party to amend his pleading, on such termsas to costs or otherwise as may be just and in such manner (if any) as it maydirect.
(2) Where an application to the Court for leave to make the amendmentmentioned in paragraph (3), (4) or (5) is made after any relevant period oflimitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned inthat paragraph if it thinks it just to do so.
(3) An amendment to correct the name of a party may be allowed underparagraph (2) notwithstanding that it is alleged that the effect of the amendment willbe to substitute a new party if the Court is satisfied that the mistake soughtto be corrected was a genuine mistake and was not misleading or such as to causeany reasonable doubt as to the identity of the person intending to sue or, asthe case may be, intended to be sued.
(4) An amendment to alter the capacity in which a party sues (whether asplaintiff or as defendant by counterclaim) may be allowed under paragraph (2) ifthe capacity in which, if the amendment is made, the party will sue is one inwhich at the date of issue of the writ or the making of the counterclaim, as thecase may be, he might have sued.
(5) An amendment may be allowed under paragraph (2) notwithstanding that theeffect of the amendment will be to add or substitute a new cause of action ifthe new cause of action arises out of the same facts or substantially the samefacts as a cause of action in respect of which relief has already been claimedin the action by the party applying for leave to make the statement.
Amendment of other originating process. (0.20, r.6).
6. Rule 5 shall have effect in relation to an originating summons, apetition and an originating notice of motion as it has effect in relation to awrit.
Amendment of certain other documents. (0.20, r.7).
7. (1) For the purpose of determining the real question incontroversy between the parties to any proceedings, or of correcting any defector error in any proceedings, the Court may at any stage of the proceedings andeither of its own motion or on the application of any party to the proceedings order any document in the proceedings to be amendedon such terms as to costs or otherwise as may be just and in such manner (ifany) as it may direct.
(2) This rule shall not have effect in relation to a judgment or order.
Failure to amend after order. (0.20, r.8).
8. Where the Court makes an order under this Order giving any partyleave to amend a writ, pleading or other document, then, if that party does notamend the document in accordance with the order before the expiration of theperiod specified for that purpose in the order or, if no period is so specified,of a period of 14 days after the order was made, the order shall cease to haveeffect, without prejudice, however, to the power of the Court to extend theperiod.
Mode of amendment of writ etc. (0.20, r.9).
9. (1) Where the amendments authorised under any rule of this Orderto be made in a writ, pleading or other document are so numerous or of suchnature or length that to make written alterations of the document so as to giveeffect to them would make it difficult or inconvenient to read, a freshdocument, amended as so authorised, must be prepared and, in the case of a writor originating summons, reissued, but, except as aforesaid and subject to anydirection given under rule 5 or 8, the amendments so authorised may be effectedby making in writing the necessary alterations of the document and, in the caseof a writ or originating summons, causing it to be re-sealed and filing a copythereof.
(2) A writ, pleading or other document which has been amended under thisOrder must be indorsed with a statement that it has been amended, specifying thedate on which it was amended and by whom the order (if any) authorising theamendment was made and the date thereof, or, if no such order was made, thenumber of the rule of this Order in pursuance of which the amendment wasmade.
Amendment of judgment and orders. (0.20, r.10).
10. Clerical mistakes in judgments or orders, or errors arisingtherein from any accidental slip or omission, may at any time be corrected bythe Court by summons without an appeal.
Amended by agreement. (0.20, r.11). [S 77/00]
11. (1) Notwithstanding the foregoing provisions of this Order, anypleading in any cause or matter may, by written agreement between the parties,be amended at any stage of the proceedings.
(2) This rule shall not have effect in relation to an amendment to acounterclaim which consists of the addition, omission or substitution of aparty.
ORDER 21
WITHDRAWAL AND DISCONTINUANCE
Withdrawal of appearance. (0.21, r.1).
1. A party who has entered an appearance in an action may withdraw theappearance at any time with the leave of the Court.
Discontinuance of action etc. without leave. (0.21, r.2).
2. (1) The plaintiff in an action begun by writ may, without theleave of the Court, discontinue the action, or withdraw any particular claimmade by him therein, as against any or all of the defendants at any time notlater than 14 days after service of the defence on him or, if there are two ormore defendants, of the defence last served, by serving a notice in Form 36 tothat effect on the defendant concerned.
(2) A defendant may, without the leave of the Court —
(a) withdraw his defence or any part of it at any time;
(b) discontinue a counter-claim, or withdraw any particular claimmade by him therein, as against any or all of the parties against whom it ismade, at any time not later than 14 days after service on him of a defence tocounter-claim, or if the counter-claim is made against two or more parties, ofthe defence to counter-claim last served,
by serving a notice in Form 36 to that effect on the plaintiff or other partyconcerned.
(3) Where there are two or more defendants to an action not all of whomserve a defence on the plaintiff, and the period fixed by or under these Rulesfor service by any of those defendants of his defence expires after the latestdate on which any other defendant serves his defence, paragraph (1) shall haveeffect as if the reference therein to the service of the defence last servedwere a reference to the expiration of that period.
This paragraph shall apply in relation to a counterclaim as it applies inrelation to an action with the substitution for references to a defence, to theplaintiff and to paragraph (1), of references to a defence to counter-claim, to the defendant and to paragraph (2) respectively.
(4) If all the parties to an action consent, the action may be withdrawnwithout the leave of the Court at any time before trial by producing to theRegistrar a written consent to the action being withdrawn signed by all theparties.
Discontinuance of action etc. with leave. (0.21, r.3).
3. (1) Except as provided by rule 2, a party may not discontinue anaction (whether begun by writ or otherwise) or counter-claim, or withdraw anyparticular claim made by him therein, without the leave of the Court, and theCourt hearing an application for the grant of such leave may order the action orcounter-claim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties againstwhom it is brought or made on such terms as to costs, the bringing of asubsequent action or otherwise as it thinks just.
(2) An application for the grant of leave under this rule may be made bysummons.
Effect of discontinuance. (0.21, r.4).
4. Subject to any terms imposed by the Court in granting leave underrule 3, the fact that a party has discontinued an action or counter-claim orwithdrawn a particular claim made by him therein shall not be a defence to asubsequent action for the same, or substantially the same, cause of action.
Stay of subsequent action until costs paid. (0.21, r.5).
5. (1) Where a party has discontinued an action or counter-claim orwithdrawn any particular claim made by him therein and he is liable to pay anyother party's costs of the action or counter-claim or the costs occasioned toany other party by the claim withdrawn, then, if before payment of those costs,he subsequently brings an action for the same, or substantially the same, causeof action, the Court may order the proceedings in that action to be stayed untilthose costs are paid.
(2) An application for an order under this rule may be made by summons or bynotice under Order 25, rule 7.
Withdrawal of summons. (0.21, r.6).
6. A party who has taken out a summons in a cause or matter may notwithdraw it without the leave of the Court.
ORDER 22
PAYMENT INTO AND OUT OF COURT
Payment into Court. (0.22, r.1).
1. (1) In any action for a debt or damages any defendant may at anytime after he has entered an appearance in the action pay into Court a sum ofmoney in satisfaction of the cause of action in respect of which the plaintiffclaims or, where two or more causes of action are joined in the action, a sum orsums of money in satisfaction of any or all of those causes of action.
(2) On making any payment into Court under this rule, and on increasing anysuch payment already made, the defendant must give notice thereof in Form 37 tothe plaintiff and every other defendant (if any); and within 3 days afterreceiving the notice the plaintiff must send the defendant a writtenacknowledgement of its receipt.
(3) A defendant may, without leave, give notice of an increase in a paymentmade under this rule but, subject to that and without prejudice to paragraph(5), a notice of payment may not be withdrawn or amended without the leave ofthe Court which may be granted on such terms as may be just.
(4) Where two or more causes of action are joined in the action and money ispaid into Court under this rule in respect of all, or some only of, those causesof action, the notice of payment —
(a) must state that the money is paid in respect of all thosecauses of action or, as the case may be, must specify the cause or causes ofaction in respect of which the payment is made; and
(b) where the defendant makes separate payments in respect of each,or any two or more, of those causes of action, must specify the sum paid inrespect of that cause or, as the case may be, those causes of action.
(5) Where a single sum of money is paid into Court under this rule inrespect of two or more causes of action, then, if it appears to the Court thatthe plaintiff is embarrassed by the payment, the Court may, subject to paragraph(6), order the defendant to amend the notice of payment so as to specify the sumpaid in respect of each cause of action.
Payment in by defendant who has counter-claim. (0.22, r.2).
2. Where a defendant, who makes by counter-claim a claim against theplaintiff for a debt or damages, pays a sum of money into Court under rule 1,the notice of payment must state, if it be the case, that in making the paymentthe defendant has taken into account and intends to satisfy —
(a) the cause of action in respect of which he claims; or
(b) where two or more causes of action are joined in thecounter-claim, all those causes of action or, if not all, which of them.
Acceptance of money paid into Court. (0.22, r.3).
3. (1) Where money is paid into Court under rule 1, then subject toparagraph (2) within 14 days after receipt of the notice of payment or, wheremore.than one payment has been made or the notice has been amended, within 14days after receipt of the notice of the last payment or the amended notice but,in any case, before the trial or hearing of the action begins, the plaintiff may—
(a) where the money was paid in respect of the cause of action orall the causes of action in respect of which he claims, accept the money insatisfaction of that cause of action or those causes of action, as the case maybe; or
(b) where the money was paid in respect of some only of the causesof action in respect of which he claims, accept in satisfaction of any suchcause or causes of action the sum specified in respect of that cause or thosecauses of action in the notice of payment,
by giving notice in Form 38 to every defendant to the action.
(2) Where after the trial or hearing of an action has begun —
(a) money is paid into Court under rule 1; or
(b) money in Court is increased by a further payment into Courtunder that rule, the plaintiff may accept the money in accordance with paragraph(1) within 2 days after receipt of the notice of payment or notice of thefurther payment, as the case may be, but, in any case, before the Judge beginsto deliver judgment.
(3) Rule 1(5) shall not apply in relation to money paid into Court in anaction after the trial or hearing of the action has begun.
(4) On the plaintiff accepting any money paid into Court all furtherproceedings in the action or in respect of the specified cause or causes ofaction, as the case may be, to which the acceptance relates, both against thedefendant making the payment and against any other defendant sued jointly withor in the alternative to him shall be stayed.
(5) Where money is paid into Court by a defendant who made a counterclaimand the notice of payment stated, in relation to any sum so paid, that in makingthe payment the defendant had taken into account and satisfied the cause orcauses or action, or the specified cause or causes of action in respect of whichhe claimed, then, on the plaintiff accepting that sum, all further proceedingson the counterclaim or in respect of the specified cause or causes of action, asthe case may be, against the plaintiff shall be stayed.
(6) A plaintiff who has accepted any sum paid into Court shall, subject torules 4 and
10 and Order 73, rule 12, be entitled to receive payment of that sum insatisfaction of the cause or causes of action to which the acceptancerelates.
[S 31/00]
Order for payment out of money accepted required in certain cases. (0.22,r.4).
4. (1) Where a plaintiff accepts any sum paid into Court and that sumwas paid into Court —
(a) by some but not all of the defendants sued jointly or in thealternative by him; or
(b) with a defence of tender before action,
the money in Court shall not be paid out except under paragraph (2) or inpursuance of an order of the Court, and the order shall deal with the wholecosts of the action or of the cause of action to which the payment relates, asthe case may be.
(2) Where an order of the Court is required under paragraph (1) by reasononly of paragraph (1) (a) , then, if, either before or after accepting themoney paid into Court by some only of the defendants sued jointly or in thealternative by him, the plaintiff discontinues the action against all otherdefendants and those defendants consent in writing to the payment out of thatsum, it may be paid out without an order of the Court.
(3) Where after the trial or hearing of an action has begun a plaintiffaccepts any money paid into Court and all further proceedings in the action orin respect of the specified cause or causes of action, as the case may be, towhich the acceptance relates are stayed by virtue of rule 3(4) then,notwithstanding anything in paragraph (2), the money shall not be paid outexcept in pursuance of an order of the Court, and the order shall deal with thewhole costs of the action.
Money remaining in Court. (0.22, r.5).
5. If any money paid into Court in an action is not accepted inaccordance with rule 3, the money remaining in Court shall not be paid outexcept in pursuance of an order of the Court which may be made at any timebefore, at or after the trial or hearing of the action; and where such an orderis made before the trial or hearing the money shall not be paid out except insatisfaction of the cause or causes of action in respect of which it was paidin.
Counter-claim. (0.22. r.6).
6. A plaintiff against whom a counterclaim is made and any otherdefendant to the counterclaim may pay money into Court in accordance with rulel, and that rule and rules 3
(except paragraph (5)), 4 and 5 shall apply accordingly with the necessarymodifications.
Non-disclosure of payment into Court. (0.22, r.7).
7. Except in an action to which a defence of tender before action ispleaded, and except in an action all further proceedings in which are stayed byvirtue of rule 3(4) after the trial or hearing has begun, the fact that money has been paid into Court under the foregoing provisions of thisOrder shall not be pleaded and no communication of that fact shall be made tothe Court at the trial or hearing of the action or counter-claim or of anyquestion or issue to the debt or damages until all questions of liability and ofthe amount of debt or damages have been decided.
Money paid into Court under Order. (0.22, r.8).
8. (1) Subject to paragraph (2), money paid into Court under an orderof the Court or a certificate of the Registrar shall not be paid out except inpursuance of an order of the Court.
(2) Unless the Court otherwise orders, a party who has paid money into Courtin pursuance of an order made under Order 14 —
(a) may by notice to the other party appropriate the whole or anypart of the money and any additional payment, if necessary, to any particularclaim made in the writ or counter-claim, as the case may be, and specified inthe notice; or
(b) if he pleads a tender, may by his pleading appropriate thewhole or any part of the money as payment into Court of the money alleged tohave been tendered,
and money appropriated in accordance with this rule shall be deemed to bemoney paid into Court in accordance with rule 1 or money paid into Court with aplea of tender, as the case may be, and this Order shall apply accordingly.
Payment out of money paid into Court under Exchange Control Act. (0.22,r.9).
9. (1) Where money has been paid into Court in any cause or matterpursuant to the Exchange Control Act, or an order of the Court made thereunder,any party to the cause or matter may apply for payment out of Court of thatmoney.
(2) An application for an order under this rule must be made by summonswhich must be served on all parties interested.
(3) If any person in whose favour an order for payment under this rule issought is resident outside the scheduled territories or will receive payment byorder or on behalf of a person so resident, that fact must be stated in thesummons.
(4) If the permission of the Controller authorising the proposed payment hasbeen given unconditionally or on conditions which have been complied with, thatfact must be stated in the summons and the permission must be attached to thesummons.
Person to whom payment to be made. (0.22, r.10).
10. (1) Payment shall be made to the party entitled or, on hiswritten authority to his solicitor or, if the Court so orders, to his solicitorwithout such authority.
(2) This rule applies whether the money in Court has been paid into Courtunder the order of the Court or a certificate of the Registrar.
Payment out: Small Intestate Estates. (0.22, r.11).
11. Where a person entitled to a fund in Court, or a share of suchfund, dies intestate and the Court is satisfied that no grant of administrationof his estate has been made and that the assets of his estate do not exceed$50,000 in value, including the value of the fund or share it may order that thefund or share shall be paid, transferred or delivered to the person who, being awidower, widow, child, father, mother, brother or sister of the deceased, wouldhave the prior right to a grant of administration of the estate of thedeceased.
[S 8/99]
Payment of hospital expenses. (0.22, r.12).
12. (1) This rule applies in relation to an action or counter-claimfor bodily injury arising out of the use of a motor vehicle on a road or anyplace to which the public have a right of access in which the claim for damagesincludes a sum for hospital expense.
(2) Where the party against whom the claim is made, or an authorised insurerpays the amount for which that party or insurer, as the case may be, is or maybe liable in respect of the treatment afforded by a hospital to the person inrespect of whom the claim is made,
the party against whom the claim is made must, within 7 days after payment ismade, give notice of the payment to all the other parties to the action.
Written offers without prejudice save as to costs. (0.22, r.13).
13. (1) A party to proceedings may at any time make a written offerto any other party to those proceedings which is expressed to be “withoutprejudice save as to costs” and which relates to any issue in theproceedings.
(2) Where an offer is made under paragraph (1), the fact that such an offerhas been made shall not be communicated to the court until the question of costsfails to be decided and the court shall, in accordance with Order 59, rule 5,take into account any offer which has been brought to its attention:
Provided that the court shall not take such offer into account if, at thetime it is made, the party making it could have protected his position as tocosts by means of a payment into court under this Order.
ORDER 22A
OFFER TO SETTLE
Offer to settle. (0.22A, r.1). [S 8/99]
1. A party to any proceedings may serve on any other party an offer tosettle any one or more of the claims in the proceedings on the terms specifiedin the offer to settle.
Timing. (0.22A, r.2). [S 8/99]
2. An offer to settle may be made at any time before the Courtdisposes of the matter in respect of which it is made.
Acceptance. (0.22A, r.3). [S 8/99]
3. (1) An offer to settle shall be open for acceptance for a periodof not less than 14 days after it is served. If an offer to settle is made lessthan 14 days before the hearing of the matter, it shall remain open for a periodof not less than 14 days unless in the meanwhile the matter is disposed of.
(2) Subject to paragraph (1), an offer to settle which is expressed to belimited as to the time within which it is open for acceptance shall not bewithdrawn within that time without the leave of the Court. An offer to settle which does not specify a time for acceptance may be withdrawn atany time after the expiry of 14 days from the date of service of the offer onthe other party provided that at least one day’s prior notice of theintention to withdraw the offer is given.
(3) Where an offer to settle specifies a time within which it may beaccepted and it is not accepted or withdrawn within that time, it shall bedeemed to have been withdrawn when the time expires.
(4) Where an offer to settle does not specify a time, for acceptance, it maybe accepted at any time before the Court disposes of the matter in respect ofwhich it is made.
Without prejudice. (O.22A. r.4). [S 8/99]
4. An offer to settle shall be deemed to be an offer of compromisemade without prejudice save as to costs.
Non-disclosure. (0.22A, r.5). [S 8/99]
5. (1) An offer to settle shall not be filed and no statement of thefact that such an offer has been made shall be contained in any pleading oraffidavit.
(2) Where an offer to settle is not accepted, no communication respectingthe offer shall be made to the Court at the hearing of the proceeding until allquestions of liability and the relief to be granted, other than costs, have beendetermined.
Acceptance. (O.22A, r.6). [S 8/99]
6. (1) An offer to settle shall be accepted by serving an acceptanceof offer on the party who made the offer.
(2) Where a party to whom an offer to settle is made rejects the offer orresponds with a counter-offer that is not accepted, the party may thereafteraccept the original offer to settle, unless it has been withdrawn or the Courthas disposed of the matter in respect of which it was made.
(3) Where an offer is accepted, the Court may incorporate any of its termsinto a judgment.
Disability. (0.22A, r.7). [S 8/99]
7. A party under disability may make, withdraw and accept an offer tosettle, but no acceptance of an offer made by him and no acceptance by him of anoffer made by another party is binding on him until the settlement has beenapproved.
Compliance. (O.22A, r.8). [S 8/99]
8. (1) Where a party to an accepted offer to settle fails to complywith any of the terms of the accepted offer, the other party may —
(a) make an application to a Judge for judgment in the terms of theaccepted offer, and the Judge may grant judgment accordingly; or
(b) continue the proceeding as if there had been no accepted offerto settle.
(2) Where the offer to settle involves the payment of money by instalments,the accepted offer to settle shall unless the parties otherwise provide bedeemed to include a term that all instalments outstanding shall be immediatelypayable upon the failure to comply with the payment of any instalment.
Costs. (0.22A, r.9). [S 8/99]
9. (1) Where an offer to settle made by a plaintiff —
(a) is not withdrawn and has not expired before the disposal of theclaim in respect of which the offer to settle is made; and
(b) is not accepted by the defendant, and the plaintiff obtains ajudgment not less favourable than the terms of the offer to settle,
the plaintiff is entitled to costs on the standard basis to the date an offerto settle was served, unless the Court orders otherwise.
[S 77/00]
(2) Where an accepted offer to settle does not provide for costs, theplaintiff is entitled —
(a) where the offer was made by him, to his costs assessed to thedate that the notice of acceptance was served; or
(b) where the offer was made by the defendant, to his costsassessed to the date the plaintiff was served with the offer.
(3) Where an offer to settle made by a defendant —
(a) is not withdrawn and has not expired before the disposal of theclaim in respect of which the offer to settle is made; and
(b) is not accepted by the plaintiff, and the plaintiff obtainsjudgment not more favourable than the terms of the offer to settle,
the plaintiff is entitled to costs on the standard basis to the date theoffer was served and the defendant is entitled to costs on the indemnity basisfrom that date, unless the Court orders otherwise.
(4) (a) Any interest awarded in respect of the period beforeservice of the offer to settle is to be considered by the Court in determiningwhether the plaintiff’s judgment is more favourable than the terms of theoffer to settle.
(b) Any interest awarded in respect of the period after service ofthe offer to settle is not to be considered by the Court in determining whetherthe plaintiff’s judgment is more favourable than the terms of the offer tosettle.
Joint and several liability. (0.22A, r.10). [S 8/99]
10. Where there are 2 or more defendants, the plaintiff may offer tosettle with any defendant and any defendant may offer to settle with theplaintiff, but where the defendants are alleged to be jointly or jointly andseverally liable to the plaintiff in respect of a claim and rights of contribution or indemnity may exist between the defendants, the costconsequences prescribed by rule 9 do not apply to an offer to settle unless—
(a) in the case of an offer made by the plaintiff, the offer ismade to all the defendants, and is an offer to settle the claim against all thedefendants; or
(b) in the case of an offer made to the plaintiff —
(i) the offer is an offer to settle the plaintiff’s claim againstall the defendants and to pay the costs of any defendant who does not join inmaking the offer; or
(ii) the offer is made by all the defendants and is an offer to settle theclaim against all the defendants, and, by the terms of the offer, they are madejointly and severally liable to the plaintiff for the whole of the offer.
Offer to contribute. (0.22A, r.11). [S 8/99]
11. (1) Where 2 or more defendants are alleged to be jointly orjointly and severally liable to the plaintiff in respect of a claim, anydefendant may make to any other defendant an offer to contribute towards asettlement of the claim.
(2) The Court may take into account an offer to contribute in determiningwhether another defendant should be ordered —
(a) to pay the costs of the defendant who made the offer; or
(b) to indemnify the defendant who made the offer for any costs heis liable to pay to the plaintiff,
or to do both.
(3) Rules 2 to 12 shall apply to an offer to contribute as if it were anoffer to settle.
Discretion of Court. (0.22A, r.12). [S 8/99]
12. Without prejudice to rules 9 and 10, the Court, in exercising itsdiscretion with respect to costs, may take into account any offer to settle, thedate the offer was made, the terms of the offer and the extent to which theplaintiff’s judgment is more favourable than the terms of the offer tosettle.
Counterclaims and third party claims. (0.22A, r.13). [S8/99]
13. Rules 1 to 12 shall apply, with the necessary modifications, tocounter-claims and third party claims.
ORDER 23
SECURITY FOR COSTS
Security for costs of action etc. (0.23, r.1).
1. (1) Where, on the application of a defendant to an action or otherproceeding in the High Court, it appears to the Court —
(a) that the plaintiff is ordinarily resident out of thejurisdiction; or
(b) that the plaintiff (not being a plaintiff who is suing in arepresentative capacity) is a nominal plaintiff who is suing for the benefit ofsome other person and that there is reason to believe that he will be unable topay the costs of the defendant if ordered to do so; or
(c) subject to paragraph (2), that the plaintiff’s address isnot stated in the writ or other originating process or is incorrectly statedtherein; or
(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of thelitigation,
then, if, having regard to all the circumstances of the case, the Courtthinks it just to do so, it may order the plaintiff to give such security forthe defendant’s costs of the action or other proceeding as it thinksjust.
(2) The Court shall not require a plaintiff to give security by reason only of paragraph (1) (c) if he satisfies the Court that thefailure to state his address or the mis- statement thereof was made innocentlyand without intention to deceive.
(3) The references in the foregoing paragraphs to a plaintiff and adefendant shall be construed as references to the person (howsoever described onthe record) who is in the position of plaintiff or defendant, as the casemay be, in the proceeding in question, including a proceeding on acounter-claim.
Manner of giving security. (0.23, r.2).
2. Where an order is made requiring any party to give security forcosts, the security shall be given in such manner, at such time, and on suchterms (if any), as the Court may direct.
Saving for written law. (0.23, r.3).
3. This Order is without prejudice to the provisions of any writtenlaw which empowers the Court to require security given for the costs of anyproceedings.
ORDER 24
DISCOVERY AND INSPECTION OF DOCUMENTS
Mutual discovery of documents. (0.24, r.1).
1. (1) After the close of pleadings in an action begun by writ thereshall, subject to and in accordance with the provisions of this Order, bediscovery by the parties to the action of the documents which are or have beenin their possession, custody or power relating to matters in question in theaction.
(2) Nothing in this Order shall be taken as preventing the partiesto an action agreeing to dispense with or limit the discovery of documentswhich they would otherwise be required to make to each other.
Discovery by parties without Order. (0.24, r.2).
2. (1) Subject to the provisions of this rule and of rule 4, theparties to an action between whom pleadings are closed must make discovery byexchanging lists of documents and, accordingly, each party must, within 14 daysafter the pleading in the action are deemed to be closed as between him and anyother party, make and serve on that other party a list of the documents whichare or have been in his possession, custody or power relating to any matter inquestion between them in the action.
Without prejudice to any directions given by the Court under Order 16, rule4, this paragraph shall not apply in third party proceedings, includingproceedings under that Order involving fourth or subsequent parties.
(2) Unless the Court otherwise orders, a defendant to an action arising outof an accident on land due to a collision or apprehended collision involving avehicle shall not make discovery of any documents to the plaintiff underparagraph (1).
(3) Paragraph (1) shall not be taken as requiring a defendant to an actionfor the recovery of any penalty recoverable by virtue of any written law to makediscovery of any documents or as requiring a defendant to an action to enforce aforfeiture to make discovery of any documents relating to the issue offorfeiture.
(4) Paragraphs (2) and (3) shall apply in relation to a counterclaim as theyapply in relation to an action but with the substitution, for the reference inparagraph (2) to the plaintiff, of a reference to the party making thecounter-claim.
(5) On the application of any party required by this rule to make discoveryof documents, the Court may —
(a) order that the parties to the action or any of them shall makediscovery under paragraph (1) of such documents or classes of documents only, oras to such only of the matters in question, as may be specified in the order;or
(b) if satisfied that discovery by all or any of the parties is notnecessary, or not necessary at the stage of the action, order that there shallbe no discovery of documents by any or all of the parties either at all or atthat stage,
and the Court shall make such an order if and so far as it is of opinion thatdiscovery is not necessary either for disposing fairly of the action or forsaving costs.
(6) An application for an order under paragraph (5) must be by summons, andthe summons must be taken out before the expiration of the period within whichby virtue of this rule discovery of documents in the action is required to bemade.
(7) Any party to whom discovery of documents is required to be made underthis rule may, at any time before the summons for directions in the action istaken out, serve on the party required to make such discovery a notice in Form39 requiring him to make an affidavit verifying the list he is required to makeunder paragraph (1) and the party on whom such a notice is served must, within14 days after service of the notice, make and file an affidavit in compliancewith the notice and serve a copy of the affidavit on the party by whom thenotice was served.
Order for discovery. (0.24, r.3).
3. (1) Subject to the provisions of this rule and of rules 4 and 8,the Court may order any party to a cause or matter (whether begun by writ,originating summons or otherwise) to make and serve on any other party a list ofthe documents which are or have been in his possession, custody or powerrelating to any matter in question in the cause or matter, and may at the sametime or subsequently also order him to make and file an affidavit verifying sucha list and to serve a copy thereof on the other party.
(2) Where a party who is required by rule 2 to make discovery of documentsfails to comply with any provisions of that rule, the Court, on the applicationof any party to whom the discovery was required to be made, may make an orderagainst the first mentioned party under paragraph (1) of this rule or, as thecase may be, may order him to make and file an affidavit verifying the list ofdocuments he is required to make under rule 2 and to serve a copy thereof on theapplicant.
(3) An order under this rule may be limited to such documents or clases ofdocument only, or to such only of the matters in question in the cause ormatter, as may be specified in the order.
Order for determination of issue etc. before discovery. (0.24,r.4).
4. (1) Where on an application for an order under rule 2 or 3 itappears to the Court that any issue or question in the cause or matter should bedetermined before any discovery of documents is made by the parties, the Courtmay order that that issue or question be determined first.
(2) Where in an action begun by writ an order is made under this rule forthe determination of an issue or question, Order 25, rules 2 to 7 shall, withthe omission of so much of rule 7(1) as requires parties to serve a noticespecifying the orders and directions which they desire and with any othernecessary modifications, apply as if the application on which the order was madewere a summons for directions.
Form of list and affidavit. (0.24, r.5).
5. (1) A list of documents made in compliance with rule 2 or with anorder under rule 3 must be in Form 40, and must enumerate the documents in aconvenient order and as shortly as possible but describing each of them or, inthe case of bundles of documents of the same nature, each bundle, sufficientlyto enable it to be identified.
(2) If it is desired to claim that any documents are privileged fromproduction, the claim must be made in the list of documents with a sufficientstatement of the grounds of the privilege.
(3) An affidavit made as aforesaid verifying a list of documents must be inForm 41.
Defendant entitled to copy of co-defendant’s list. (0.24,r.6).
6. (1) A defendant who has pleaded in an action shall be entitled tohave a copy of any list of documents served under any of the foregoing rules ofthis Order on the plaintiff by any other defendant to the action; and aplaintiff against whom a counter-claim is made in an action begun by writ shallbe entitled to have a copy of any list of documents served under any of thoserules on the party making the counter-claim by any other defendant to thecounter-claim.
(2) A party required by virtue of paragraph (1) to supply a copy of a list of documents must supply it free of charge on a request made by theparty entitled to it.
(3) Where in an action begun by originating summons the Court makes an orderunder rule 3 requiring a defendant to the action to serve a list of documents onthe plaintiff, it may also order him to supply any other defendant to the actionwith a copy of that list.
(4) In this rule “list of documents” includes an affidavitveriying a list of documents.
Order for discovery of particular documents. (0.24, r.7).
7. (1) Subject to rule 8, the Court may at any time, on theapplication of any party to a cause or matter, make an order requiring any otherparty to make an affidavit stating whether any document specified or describedin the application or any class of document so specified or described is, or hasat any time been, in his possession, custody or power, and if not then in hispossession, custody or power when he parted with it and what has become ofit.
(2) An order may be made against a party under this rule notwithstandingthat he may already have made or been required to make a list of documents oraffidavit under rule 2 or 3.
(3) An application for an order under this rule must be supported by anaffidavit stating the belief of the deponent that the party from whom discoveryis sought under this rule has, or at some time had, in his possession, custodyor power the document, or class of document, specified or described in theapplication and that it relates to one or more of the matters in question in thecause or matter.
Disclosure by non-parties. (0.24, r.7A). [S 28/96]
7A. (1) On the application of any person, the Court shall have powerto make an order providing for any one or more of the following matters—
(a) the inspection, photographing, preservation, custody and detention of property which appears to the Court to be property which maybecome the subject- matter of subsequent proceedings in the Court, or as towhich any question may arise in any such proceedings; and
(b) the taking of samples of any such property as is mentioned inparagraph (a)
and the carrying out of any experiment on or with any such property.
(2) On the application of a person who appears to the Court to be likely tobe a party to subsequent proceedings in that Court in which a claim in respectof personal injuries (as defined in section 20(3) of the Emergency (FatalAccidents and Personal Injuries) Order,
1991), or in respect of a person’s death, is likely to be made, theCourt shall have power to order a person who appears to the Court to be likelyto be a party to the proceedings and to be likely to have or to have had in hispossession, custody or power any documents which are relevant to an issuearising or likely to arise out of that claim —
(a) to disclose whether those documents are in his possession, custody or power; and
(b) to produce such of those documents as are in his possession,custody or power to the applicant or, on such conditions as may be specified inthe order —
(i) to the applicant’s solicitor;
(ii) to the applicant’s solicitor and any medical or otherprofessional adviser of the applicant; or
(iii) if the applicant has no solicitor, to any medical or other professionaladviser of the applicant.
Disclosure in cases of personal injury or death. (0.24, r.7B). [S28/96]
7B. (1) This rule applies to any proceedings in the Court in which aclaim is made in respect of personal injuries (as defined in section 20(3) ofthe Emergency (Fatal Accidents and Personal Injuries) Order, 1991) or in respectof a person’s death.
(2) On the application of a party to any proceedings to which this sectionapplies, the Court shall have power to order a person who is not a party to theproceedings and who appears to the Court to be likely to have in his possession, custody or powerany documents which are relevant to an issue arising out of that claim—
(a) to disclose whether those documents are in his possession, custody or power; and
(b) to produce such of those documents as are in his posses-sion,custody or power to the applicant or, on such conditions as may be specified inthe order —
(i) to the applicant’s solicitor;
(ii) to the applicant’s solicitor and any medical or otherprofessional adviser of the applicant; or
(iii) if the applicant has no solicitor, to any medical or other professionaladviser of the applicant.
(3) On the application of a party to any proceedings to which this ruleapplies, the Court shall have power to make an order providing for any one ormore of the following matters —
(a) the inspection photographing, preservation, custody and detention of property which is not the property of, or in the possession of,any party to the proceedings but which is the subject-matter of the proceedingsor as to which any question arises in the proceedings; and
(b) the taking of samples of any such property as is mentioned inparagraph (a)
and the carrying out of any experiment on or with any such property.
(4) The preceding provisions of this rule are without prejudice to theexercise by the Court of any power to make orders which is exercisable apart from thoseprovisions.
Provisions supplementary to rule 7A and 7B. (0.24, r.7C). [S28/96]
7C. The Court shall not make an order under rules 7A or 7B if it considers that compliance with the order, if made, would be likely tobe injurious to the public interest.
Application under rule 7A or 7B. (0.24, r.7D). [S 28/96]
7D. (1) An application for an order under rule 7A for the disclosureof documents before the commencement of proceedings shall be made by originatingsummons and the person against whom the order is sought shall be made defendantto the summons.
(2) An application after the commencement of proceedings for an order underrule 7B for the disclosure of documents by a person who is not a party to theproceedings shall be made by summons, which must be served on that personpersonally and on every party to the proceedings other than the applicant.
(3) A summons under paragraphs (1) or (2) shall be supported by an affidavitwhich must —
(a) in the case of a summons under paragraph (1) state the groundson which it is alleged that the applicant and the person against whom the orderis sought are likely to be parties to sub-sequent proceedings in the High Courtin which a claim in respect of personal injuries or in respect of aperson’s death is likely to be made;
(b) in any case, specify or describe the documents in respect ofwhich the order is sought and show, if practicable by reference to any pleadingserved or intended to be served in the proceedings, that the documents arerelevant to an issue arising or likely to arise out of a claim in respect ofpersonal injuries or in respect of a person’s death made or likely to bemade in the proceedings and that the person against whom the order is sought islikely to have or to have had them in his possession, custody or power.
(4) A copy of the supporting affidavit shall be served with the summons onevery person on whom the summons is required to be served.
(5) An order under rule 7A or 7B for the disclosure of documents may be madeconditional on the applicant’s giving security for the costs of the personagainst whom it is made or on such other terms, if any, as the Court thinksjust, and shall require the person against whom the order is made to makean affidavit stating whether any documents specified or described in theorder are, or at any time have been, in his possession, custody or power and, ifnot then in his possession, custody or power, when he parted with them and whathas become of them.
(6) No person shall be compelled by virtue of such an order to produce any documents which he could not be compelled to produce —
(a) in the case of a summons under paragraph (1), if the sub-sequent proceedings had already been begun; or
(b) in the case of a summons under paragraph (2), if he had beenserved with a writ of subpoena duces tecum to produce documents at thetrial.
(7) For the purposes of rules 10 and 11, an application for an order underrule 7A or
7B shall be treated as a cause or matter between the applicant and the personagainst whom the order is sought.
Discovery to be ordered only if necessary. (0.24, r.8).
8. On the hearing of an application for an order under rule 3 or 7 theCourt, if satisfied that discovery is not necessary, or not necessary at thatstage of the cause or matter, may dismiss or, as the case may be, adjourn theapplication and shall in any case refuse to make such an order if and so far asit is of opinion that discovery is not necessary either for disposing fairly ofthe cause or matter or for saving costs.
Inspection of documents referred to in list. (0.24, r.9).
9. A party who has served a list of documents on any other party,whether in compliance with rule 2 or with an order under rule 3, must allow theother party to inspect the documents referred to in the list (other than anywhich he objects to produce) and to take copies thereof and, accordingly, he must when he serves the list on the other party alsoserve on him a notice in Form 42 stating a time within 7 days after the servicethereof at which the said documents may be inspected at a place specified in thenotice.
Inspection of documents referred to in pleadings and affidavits. (0.24,r.10).
10. (1) Any party to a cause or matter shall be entitled at any timeto serve a notice in Form 43 on any other party in whose pleadings or affidavitsreference is made to any document requiring him to produce that document for theinspection of the party giving the notice and to permit him to take copiesthereof.
(2) The party on whom a notice is served under paragraph (1) must, within 4days after service of the notice, serve on the party giving the notice a noticein Form 44 stating a time within 7 days after the service thereof at which thedocuments, or such of them as he does not object to produce, may be inspected ata place specified in the notice, and stating which (if any) of the documents heobjects to produce and on what grounds.
Order for production for inspection. (0.24, r.11).
11. (1) If a party who is required by rule 9 to serve such a noticeas is therein mentioned or who is served with a notice under rule 10(1)—
(a) fails to serve a notice under rule 9 or; as the case may be,rule 10(2); or
(b) objects to produce any document for inspection; or
(c) offers inspection at a time or place such that, in the opinion ofthe Court, it is unreasonable to offer inspection then or, as the case may be,there,
then, subject to rule 13(1), the Court may, on the application of the party entitled to inspection, make an order in Form 45 for production ofthe documents in question for inspection at such time and place, and in suchmanner, as it thinks fit.
(2) Without prejudice to paragraph (1), but subject to rule 13(1) the Courtmay, on the application of any party to a cause or matter, order any other partyto permit the party applying to inspect any documents in the possession, custodyor power of that other party relating to any matter in question in the cause ormatter.
(3) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of whichinspection is sought and stating the belief of the deponent that they are in thepossession, custody or power of the other party and that they relate to a matterin question in the cause or matter.
Copies of documents. (0.24, r.11A). [S 7/99]
11A. (1) Any party who is entitled to inspect any documents under anyprovision of this Order or any order made thereunder may at or before the timewhen inspection takes place serve on the party who is required to produce suchdocuments for inspection a notice (which shall contain an undertaking to pay the reasonable charges) requiring him tosupply a true copy of any such document as is capable of being copied byphotographic or similar process.
(2) The party on whom such a notice is served must within seven days afterreceipt thereof supply the copy requested together with an account of thereasonable charges.
(3) Where a party fails to supply to another party a copy of any documentunder paragraph (2), the Court may, on the application of either party, makesuch order as to the supply of that document as it thinks fit.
Order for production to Court. (0.24, r.12).
12. At any stage of the proceedings in any cause or matter the Courtmay, subject to rule 13(1), order any party to produce to the Court any document in hispossession, custody or power relating to any matter in question in the cause ormatter and the Court may deal with the document when produced in such manner asit thinks fit.
Production to be ordered only if necessary etc. (0.24, r.13).
13. (1) No order for the production of any documents for inspectionor to the Court shall be made under any of the foregoing rules unless the Courtis of opinion that the order is necessary either for disposing fairly of thecause or matter or for saving costs.
(2) Where on an application under this Order for production of any documentfor inspection or to the Court privilege from such production is claimed orobjection is made to such production on any other ground, the Court may inspectthe document for the purpose of deciding whether the claim or objection isvalid.
Production of business books. (0.24, r.14).
14. (1) Where production of any business books for inspection isapplied for under any of the foregoing rules, the Court may, instead of orderingproduction of the original books for inspection, order a copy of any entriestherein to be supplied and verified by an affidavit of some person who hasexamined the copy with the original books.
(2) Any such affidavit shall state whether or not there are in the originalbook any and what erasures, interlineations or alterations.
(3) Notwithstanding that a copy of any entries in any book has been suppliedunder this rule, the Court may order production of the book from which the copywas made.
Use of documents. (0.24, r.14A). [S 7/99]
14A. Any undertaking, whether express or implied, not to use adocument for any purposes other than those of the proceedings in which it isdisclosed shall cease to apply to such document after it has been read to or bythe Court, or referred to, in open Court, unless the Court for special reasonshas otherwise ordered on the application of a party or of the person to whom thedocument belongs.
Document disclosure of which would be injurious to public interest: Saving.
(0.24, r.15).
15. The foregoing provisions of this Order shall be without prejudiceto any rule of law which authorises or requires the withholding of any documenton the ground that the disclosure of it would be injurious to the publicinterest.
Failure to comply with requirement for discovery etc. (0.24,r.16).
16. (1) If any party who is required by any of the foregoing rules,or by any order made thereunder, to make discovery of documents or to produceany documents for the purpose of inspection or any other purpose fails to complywith any provision of that rule or with that order, as the case may be, then,without prejudice, in the case of a failure to comply with any such provision,to rules 3(2) and 11(1), the Court may make such order as it thinks justincluding, in particular, an order that the action be dismissed, or as the casemay be, an order that the defence be struck out and judgment be enteredaccordingly.
(2) If any party against whom an order for discovery or production ofdocuments is made fails to comply with it, then, without prejudice to paragraph(1), he shall be liable to committal.
(3) Service on a party’s solicitor of an order for discovery or production of documents made against that party shall be sufficient serviceto found an application for committal of the party disobeying the order, but theparty may show in answer to the application that he had no notice or knowledgeof the order.
(4) A solicitor on whom such an order made against his client is served andwho fails without reasonable excuse to give notice thereof to his client shallbe liable to committal.
Revocation and variation of Orders. (0.24, r.17).
17. Any order made under this Order (including an order made onappeal) may, on sufficient cause being shown, be revoked or varied by asubsequent order or direction of the Court made or given at or before the trialof the cause or matter in connection with which the original order was made.
ORDER 25
SUMMONS FOR DIRECTIONS
Summons for directions. (0.25, r.1).
1. (1) With a view to providing, in every action to which this ruleapplies, an occasion for the consideration by the Court of the preparations forthe trial of the action, so that —
(a) all matters which must or can be dealt with on interlocutoryapplications and have not already been dealt with may so far as possible bedealt with; and
(b) such directions may be given as to the future course of theaction as appear best adapted to secure the just, expeditious and economicaldisposal thereof,
the plaintiff must, within one month after the pleadings in the action aredeemed to be closed, take out a summons in Form 46 (in these Rules referred toas a summons for directions) returnable in not less than 14 days.
(2) This rule applies to all actions begun by writ except —
(a) actions in which the plaintiff or defendant has applied forjudgment under Order 14, or in which the plaintiff has applied for judgmentunder Order 77, and directions have been given under the relevant Order;
[S 31/00]
(b) actions in which the plaintiff or defendant has applied underOrder 18, rule 22, for trial without pleadings or further pleadings and directions have beengiven under that rule;
(c) actions in which an order has been made under Order 24, rule 4,for the trial of the issue or question before discovery;
(d) actions in which directions have been given under Order 29,rule 7;
(e) actions in which an order for the taking of an account has beenmade under Order 43, rule 1;
(f) actions which have been referred for trial to the Registrar;and
(g) actions for the infringement of a patent.
(3) Where, in the case of any action in which discovery of documents isrequired to be made by any party under Order 24, rule 2, the period of 14 daysreferred to in paragraph (1) of that rule is extended, whether by consent or by order of the Court orboth by consent and by order, paragraph (1) of this rule shall have effect inrelation to that action as if for the reference therein to one month after thepleadings in the action are deemed to be closed there were substituted areference to 14 days after the expiration of the period referred to in paragraph(1) of the said rule 2 as so extended.
(4) If the plaintiff does not take out a summons for directions inaccordance with the foregoing provisions of this rule, the defendant or anydefendant may do so or apply for an order to dismiss the action.
(5) On an application by a defendant to dismiss the action under paragraph(4) the Court may either dismiss the action on such terms as may be just or dealwith the application as if it were a summons for directions.
(6) In the case of an action which is proceeding only as respects acounter-claim, references in this rule to the plaintiff and defendant shall beconstrued respectively as references to the party making the counter-claim andthe defendant to the counter-claim.
Duty to consider all matters. (0.25, r.2).
2. (1) When the summons for directions first comes to be heard, theCourt shall consider whether —
(a) it is possible to deal then with all the matters which, by thesubsequent rules of this Order, are required to be considered on the hearing ofthe summons for directions; or
(b) it is expedient to adjourn the consideration of all or any ofthose matters until a later stage.
(2) If when the summons for directions first comes to be heard the Courtconsiders that it is possible to deal then with all the said matters, it shalldeal with them forthwith and shall endeavour to secure that all other matters which must or can be dealt with on interlocutory applicationsand have not already been dealt with are also then dealt with.
(3) If, when the summons for directions first comes to be heard, the Courtconsiders that it is expedient to adjourn the consideration of all or any of thematters which, by the subsequent rules of this Order, are required to beconsidered on the hearing of the summons, the Court shall deal forthwith withsuch of those matters as it considers can conveniently be dealt with forthwithand adjourn the consideration of the remaining matters and shallendeavour to secure that all other matters which must or can be dealt with oninterlocutory applications and have not already been dealt with are dealt witheither then or at a resumed hearing of the summons for directions.
(4) If, on the summons for directions, an action is ordered to betransferred to the Subordinate Courts, nothing in this Order shall be construedas requiring the Court to make any further order on the summons.
(5) If, on the summons for directions, the action or any question or issuetherein is ordered to be tried before the Registrar, the Court may, withoutgiving further directions, adjourn the summons so that it can be heard by theRegistrar, and the party required to apply to the Registrar for directions maydo so by notice without taking out a fresh summons.
(6) If the hearing of the summons for directions is adjourned without a daybeing fixed for the resumed hearing thereof, any party may restore it to thelist on 2 days’ notice to the other parties.
Particular matters for consideration. (0.25, r.3).
3. On the hearing of the summons for directions the Court shall inparticular consider, if necessary of its own motion, whether, for the purpose ofsaving costs, any order should be made in the exercise of the powers conferredby any of the following provisions, that is to —
(a) the Evidence Act (Chapter 108), in particular, the sectionswhich enable the Court to order the admission in evidence of statements in documents notwithstanding that the makers of the statementsare not called as witnesses and notwithstanding that the original document isnot produced;
(b) Order 20, rule 5, Order 38, rules 2 to 7, and Order 70, rule24(3).
Admissions and agreements to be made. (0.25, r.4).
4. At the hearing of the summons for directions, the Court shallendeavour to secure that the parties make all admissions and all agreements asto the conduct of the proceedings which ought reasonably to be made by them andmay cause the order on the summons to record any admissions or agreements somade, and (with a view to such special order, if any, as to costs as may be justbeing made at the trial) any refusal to make any admissions or agreement.
Limitation of right of appeal. (0.25, r.5).
5. Nothing in rule 4 shall be construed as requiring the Court toendeavour to secure that the parties shall agree to exclude or limit any rightof appeal, but the order made on the summons for directions may record any suchagreement.
Duty to give all information at hearing. (0.25, r.6).
6. (1) Subject to paragraph (2), no affidavit shall be used on the hearing of the summons for directions except by the leave or direction of the Court, but, subject to paragraph (4), it shall be theduty of the parties to the action and their solicitors to give all suchinformation and produce all such documents on any hearing of the summons as theCourt may reasonably require for the purposes of enabling it properly to dealwith the summons.
The Court may, if it appears proper so to do in the circumstances, authoriseany such information or documents to be given or produced to the Court withoutbeing disclosed to the other parties but, in the absence of such authority, anyinformation or document given or produced under this paragraph shall be given orproduced to all the parties present or represented on the hearing of the summonsas well as to the Court.
(2) No leave shall be required by virtue of paragraph (1) for the use of anaffidavit by any party on the hearing of the summons for directions inconnection with any application thereat for any order if, under any of theseRules, an application for such an order is required to be supported by anaffidavit.
(3) If the Court on any hearing of the summons for directions requires aparty to the action or his solicitor or counsel to give any information orproduce any document and that information or document is not given or produced,then, subject to paragraph (4), the Court may —
(a) cause the facts to be recorded in the order with a view to suchspecial order, if any, as to costs as may be just being made at the trial;or
(b) if it appears to the Court to be just so to do, order the wholeor any part of the pleadings of the party concerned to be struck out, if theparty is plaintiff or the claimant under a counter-claim, order the action orcounter-claim to be dismissed on such terms as may be just.
(4) Notwithstanding anything in the foregoing provisions of this rule, noinformation or documents which are privileged from disclosure shall be requiredto be given or produced under this rule by or by the solicitors of any party otherwise than with theconsent of that party.
Duty to make all interlocutory applications on summons for directions. (0.25, r.7).
7. (1) Any party to whom the summons for directions is addressed mustso far as practicable apply at the hearing of the summons for any order ordirections which he may desire as to any matter capable of being dealt with onan interlocutory application in the action and must, not less than 7 days beforethe hearing of the summons, serve on the other parties a notice in Form 47specifying those orders and directions in so far as they differ from the ordersand directions asked for by the summons.
(2) If the hearing of the summons for directions is adjourned and any partyto the proceedings desires to apply at the resumed hearing for any order ordirections not asked for by the summons or in any notice given under paragraph(1), he must, not less than 7 days before the resumed hearing of the summons,serve on the other parties a notice specifying those orders and directions in sofar as they differ from the orders and directions asked for by the summons or inany such notice as aforesaid.
(3) Any application subsequent to the summons for directions and beforejudgment as to any matter capable of being dealt with on an interlocutoryapplication in the action must be made under the summons by 2 clear days’notice to the other party stating the grounds of the application.
Automatic direction in personal injury action. (0.25, r.8).
8. (1) When the pleadings in any action to which this rule appliesare deemed to be closed the following directions shall take effect automatically—
(a) there shall be discovery of documents within 14 days inaccordance with Order 24, rule 2, and inspection within 7 days thereafter, savethat where liability is admitted, or where the action arises out of a roadaccident, discovery shall be limited to disclosure by the plaintiff of anydocuments relating to special damages;
(b) subject to paragraph (2), where any party intends to placereliance at the trial on expert evidence, he shall, within 10 weeks, disclosethe substance of that evidence to the other parties in the form of a writtenreport, which shall be agreed if possible;
(c) unless such reports are agreed, the parties shall be at liberty tocall as expert witnesses those witnesses the substance of whose evidence hasbeen disclosed in accordance with the preceding subparagraph, except that thenumber of expert witnesses shall be limited in any case to two medical expertsand one expert of any other kind;
(d) photographs, a sketch plan and the contents of any policeaccident report book shall be receivable in evidence at the trial, and shall beagreed if possible;
(e) the action shall be set down within 6 months;
(f) the Court shall be notified, on setting down, of the estimatedlength of the trial.
(2) Where paragraph 1 (b) applies to more than one party the reports shall be disclosed by mutual exchange, medical for medical andnon-medical for non-medical, within the time provided or as soon thereafter asthe reports on each side are available.
(3) Nothing in paragraph (1) shall prevent any party to an action to whichthis rule applies from applying to Court for such further or differentdirections or order as may, in the circumstances, be appropriate.
(4) For the purposes of this rule —
“a road accident” means an accident on land due to a collision orapprehended collision involving a vehicle; and “documents relating to special damages” include —
(a) documents relating to any industrial injury, industrial disablement or sickness benefit rights; and
(b) document relating to any claim for dependency on thedeceased.
(5) This rule applies to any action for personal injuries except —
(a) any Admiralty action; and
(b) any action where the pleadings contain an allegation of anegligent act or omission in the course of medical treatment.
ORDER 26
INTERROGATORIES
Discovery by interrogatories. (0.26, r.1).
1. (1) A party to any cause or matter may apply by summons in Form 48to the Court for an order —
(a) giving him leave to serve on any other party interrogatoriesrelating to any matter in question between the applicant and that other party inthe cause or matter; and
(b) requiring that other party to answer the interrogatories onaffidavit within such period as may be specified in the order.
(2) A copy of the proposed interrogatories in Form 49 must be served withthe summons by which the application for such leave is made.
(3) On the hearing of an application under this rule, the Court shall giveleave as to such only of the interrogatories as it considers necessary eitherfor disposing fairly of the cause or matter or for saving costs; and in deciding whether to give leavethe Court shall take into account any offer made by the party to be interrogatedto give particulars or to make admissions or to produce documents relating toany matter in question.
(4) A proposed interrogatory which does not relate to such a matter as ismentioned in paragraph (1) shall be disallowed notwithstanding that it might beadmissible in oral cross-examination of a witness.
(5) If an order is made it must be in Form 50 and must be served by theapplicant on the party against whom it is made.
(6) Interrogatories must be answered by affidavit in Form 51 and theaffidavit must be filed and a copy thereof served on the party interrogatingwithin the time named in the order.
Discovery by interrogatories without leave of Court. (0.26, r.2).
2. A party to any cause or matter may at any time before the close ofpleadings without the leave of the Court deliver interrogatories relating to anymatter in question between the parties.
Interrogatories where party is a body of persons. (0.26, r.3).
3. Where a party to a cause or matter is a body of persons, whethercorporate or unincorporate, being a body which is empowered by law to sue or besued whether in its own name or in the name of an officer or other person, theCourt may, on the application of any other party, make an order allowing him toserve interrogatories on such officer or member of the body or person as may bespecified in the order.
Statement as to party etc. required to answer. (0.26, r.4).
4. Where interrogatories are to be served on two or more parties orare required to be answered by an agent or servant of a party, a note at the endof the interrogatories shall state which of the interrogatories each party or,as the case may be, an agent or servant is required to answer. and which agentor servant.
Objection to answer on ground of privilege. (0.26, r.5).
5. Where a person objects to answering any interrogatory on the groundof privilege he may take the objection in his affidavit in answer.
Insufficient answer. (0.26, r.6).
6. If any person on whom interrogatories have been served answers any of them insufficiently, the Court may make an order requiring himto make a further answer, and either by affidavit or on oral examination as theCourt may direct.
Failure to comply with Order. (0.26, r.7).
7. (1) If a party against whom an order is made under rule l or 6fails to comply with it, the Court may make such order as it thinks justincluding, in particular, an order that the action be dismissed or, as the casemay be, an order that the defence be struck out and judgment be enteredaccordingly.
(2) If a party against whom an order is made under rule l or 6 fails tocomply with it, then, without prejudice to paragraph (1) he shall be liable tocommittal.
(3) Service on a party’s solicitor of an order to answerinterrogatories made against the party shall be sufficient service to found anapplication for committal of the party disobeying the order, but the party mayshow in answer to the application that he had no notice or knowledge of theorder.
(4) A solicitor on whom an order to answer interrogatories made against hisclient is served and who fails without reasonable excuse to give notice thereofto his client shall be liable to committal.
Use of answers to interrogatories at trial. (0.26, r.8).
8. A party may put in evidence at the trial of a cause or matter, orof any issue therein, some only of the answers to interrogatories, or part onlyof such an answer, without putting in evidence the other answers or, as the casemay be, the whole of that answer, but the Court may look at the whole of theanswers and if of opinion that any other answer or other part of an answer is soconnected with an answer or part thereof used in evidence that the one ought notto be so used without the other, the Court may direct that that other answer orpart shall be put in evidence.
Revocation and variation of Orders. (0.26, r.9).
9. Any order made under this Order (including an order made on appeal)may, on sufficient cause being shown, be revoked or varied by a subsequent orderor direction of the Court made or given at or before the trial of the cause ormatter in connection with which the original order was made.
ORDER 27
ADMISSIONS
Admission of case of other party. (0.27, r.1).
1. Without prejudice to Order 18, rule 13, a party to a cause ormatter may give notice, by his pleading or otherwise in writing, that he admitsthe truth of the whole or any part of the case of any other party.
Notice to admit facts. (0.27, r.2).
2. (1) A party to a cause or matter may not later than 14 days afterthe cause or matter is set down for trial serve on any other party a noticerequiring him to admit, for the purpose of that cause or matter only, the factsspecified in the notice.
(2) An admission made in compliance with a notice under this rule shall notbe used against the party by whom it was made in any cause or matter other thanthe cause or matter for the purpose of which it was made or in favour of anyperson other than the person by whom the notice was given, and the Court may atany time allow a party to amend or withdraw an admission so made by him on suchterms as may be just.
(3) A notice to admit facts under paragraph (1) must be in Form 52 and anadmission of facts under paragraph (2) in Form 53.
Judgment on admission of facts. (0.27 r.3).
3. Where admissions of fact are made by a party to a cause or mattereither by his pleadings or otherwise, any other party to the cause or matter mayapply to the Court for such judgment or order as upon those admissions he may beentitled to, without waiting for the determination of any other question betweenthe parties, and the Court may give such judgment, or make such order, on theapplication as it thinks just. An application for an order under this rule maybe made by summons.
Admission and production of documents specified in list of documents. (0.27, r.4).
4. (1) Subject to paragraph (2), and without prejudice to the rightof a party to object to the admission in evidence of any document, a party onwhom a list of documents is served in pursuance of any provision of Order 24shall, unless the Court otherwise orders, be deemed to admit —
(a) that any document described in the list as an original documentis such a document and was printed, written, signed or executed as it purportsrespectively to have been; and
(b) that any document described therein as a copy is a truecopy.
This paragraph does not apply to a document the authenticity of which theparty has denied in his pleading.
(2) If before the expiration of 14 days after inspection of the documentsspecified in a list of documents or after the time limited for inspection ofthose documents expires, whichever is the later, the party to whom the list isserved serves on the party whose list it is a notice stating, in relation to anydocuments specified therein, that he does not admit the authenticity of thatdocument and requires it to be proved at the trial, he shall not be deemed tomake any admission in relation to that document under paragraph (l).
(3) A party to a cause or matter by whom a list of documents is served onany other party in pursuance of any provision of Order 24 shall be deemed tohave been served by that other party with a notice requiring him to produce at the trial of the causeor matter such of the documents specified in the list as are in his possession,custody or power.
(4) The foregoing provisions of this rule apply in relation to an affidavitmade in compliance with an order under Order 24, rule 7, as they apply inrelation to a list of documents served in pursuance of any provision of thatOrder.
Notices to admit or produce documents. (0.27, r.5).
5. (1) Except where rule 4(1) applies, a party to a cause or mattermay within 14 days after the cause or matter is set down for trial serve on anyother party a notice requiring him to admit the authenticity of the documentsspecified in the notice.
(2) If a party on whom a notice under paragraph (1) is served desires tochallenge the authenticity of any document therein specified he must, withinfourteen days after service of the notice, serve on the party by whom it wasgiven a notice stating that he does not admit the authenticity of the documentand requires it to be proved at the trial.
(3) A party who fails to give a notice of non-admission in accordance withparagraph (2) in relation to any document shall be deemed to have admitted theauthenticity of that document unless the Court otherwise orders.
(4) Except where rule 4(3) applies, a party to a cause or matter may serveon any other party a notice requiring him to produce the documents specified inthe notice at the trial of the cause or matter.
(5) A notice to admit, a notice of non-admission and a notice to producedocument shall be in Form 54, Form 55 and Form 56 respectively.
ORDER 28
ORIGINATING SUMMONS PROCEDURE
Application. (0.28, r.1).
l. The provisions of this Order apply to all originating summonsessubject, in the case of originating summonses of any particular class, to anyspecial provisions relating to originating summonses of that class made by theseRules or by or under any written law; and, subject as aforesaid, Order 32, rule5, shall apply in relation to originating summonses as it applies in relation toother summonses.
Affidavit evidence. (0.28, r.1A). [S 7/99]
1A. (1) In any cause or matter begun by originating summons (notbeing an ex parte summons) the plaintiff must before the expiration of 14 days after the defendant has acknowledged service, or,if there are two or more defendants, at least one of them has acknowledgedservice, file with the office of the Court out of which the summons was issuedthe affidavit evidence on which he intends to rely.
(2) In the case of an ex parte summons the applicant must file hisaffidavit evidence not less than four clear days before the day fixed for thehearing.
(3) Copies of the affidavit evidence filed in Court under paragraph (1) mustbe served by the plaintiff on the defendant, or, if there are two or moredefendants, on each defendant, before the expiration of 14 days after servicehas been acknowledged by that defendant.
(4) Where a defendant who has acknowledged service wishes to adduceaffidavit evidence he must within 28 days after service on him of copies of theplaintiff’s affidavit evidence under paragraph (3) file his own affidavitevidence in the office of the Court out of which the summons is issued and servecopies thereof on the plaintiff and on any other defendant who is affectedthereby.
(5) A plaintiff on whom a copy of a defendant’s affidavit evidence hasbeen served under paragraph (4) may within 14 days of such service file in Courtfurther affidavit evidence in reply and shall in that event serve copies thereofon that defendant.
(6) No other affidavit shall be received in evidence without the leave ofthe Court.
(7) Where an affidavit is required to be served by one party on anotherparty it shall be served without prior charge.
(8) The provisions of this rule apply subject to any direction by the Courtto the contrary.
(9) In this rule references to affidavits and copies of affidavits includereferences to exhibits to affidavits and copies of such exhibits.
Fixing time for attendance of parties before Court. (0.28, r.2).
2. (1) Where, in the case of an originating summons to whichappearance is required to be entered, any defendant served with the summons hasentered, or has within the time limited for appearing failed to enter, anappearance, the plaintiff may obtain an appointment for the attendance of theparties before the Court for the hearing of the summons, and a day and time fortheir attendance shall be fixed by a notice in Form 57 sealed with the seal ofthe Court.
(2) A day and time for the attendance of the parties before the Court forthe hearing of an originating summons to which appearance is not required, orfor the hearing of an ex parte originating summons may be fixed on theapplication of the plaintiff or applicant, as the case may be.
(3) Where a plaintiff fails to apply for an appointment under paragraph (1),any defendant may, with the leave of the Court, obtain an appointment inaccordance with that paragraph provided that he has entered an appearance.
Notice of first hearing etc. (0.28, r.3).
3. (1) Not less than 4 clear days before the day fixed under rule 2for the attendance of the parties before the Court for the hearing of anoriginating summons to which appearance is required to be entered, the party onwhose application the day was fixed must serve a copy of the notice fixing it onevery other party who has entered an appearance and, if the first- mentionedparty is a defendant, on the plaintiff.
(2) Not less than 4 clear days before the day fixed under rule 2 for thehearing of an originating summons to which appearance is not required, theplaintiff must serve the summons on every defendant.
(3) Where the plaintiff intends to adduce evidence in support of anoriginating summons at the first hearing thereof he must do so by affidavit and,not less than 4 clear days before the hearing, serve a copy thereof on everydefendant who has entered an appearance or, if the summons is one to which appearance is not required, on every defendant who has been servedwith the summons.
(4) Not less than 4 clear days before the day fixed for the hearing of an ex parte
originating summons the applicant must file an affidavit in support of thesummons.
Directions etc. by Court. (0.28, r.4).
4. (1) The Court by whom an originating summons is heard may, if theliability of the defendant to the plainfiff in respect of any claim made by theplaintiff is established, make such order in favour of the plaintiff as thenature of the case may require, but where the Court makes an order under thisparagraph against a defendant who does not appear at the hearing, the order maybe varied or revoked by a subsequent order of the Court on such terms as itthinks just.
(2) Unless on the hearing of an originating summons the Court disposes ofthe summons altogether or orders the cause or matter begun by it to be transferred to a Subordinate Court or makes an order under rule 8, theCourt shall give such directions as to the further conduct of the proceedings asit thinks best adapted to secure the just, expeditious and economical disposalthereof.
(3) Without prejudice to the generality of paragraph (2), the Court shall,at as early a stage of the proceedings on the summons as appears to it to bepracticable, consider whether there is or may be a dispute as to fact andwhether the just, expeditious and economical disposal of the proceedings canaccordingly best be secured by hearing the summons on oral evidence or mainly onoral evidence and, if it thinks fit, may order that no further evidence shall befiled and that the summons shall be heard on oral evidence or partly on oralevidence and partly on affidavit evidence, with or without cross-examination ofany of the deponents, as it may direct.
(4) Without prejudice to the generality of paragraph (2), and subject toparagraph (3), the Court may give directions as to the filing of evidence and as to theattendance of deponents for cross-examination and any directions which it couldgive under Order 25 if the cause or matter had been begun by writ and thesummons were a summons for directions under that Order.
Adjournment of summons. (0.28, r.5).
5. (1) The hearing of the summons by the Court may (if necessary) beadjourned from time to time, either generally or to a particular date, as may beappropriate, and the powers of the Court under rule 4 may be exercised at anyresumed hearing.
(2) If the hearing of the summons is adjourned generally, the party on whose application the day for its hearing was fixed under rule 2 mayrestore it to the list on two days’ notice to all the other parties (except a defendant who has failed to enter an appearance, or if thesummons is one to which an appearance is not required, has not been served withthe summons), and any of those parties may restore it with the leave of theCourt.
Applications affecting party in default of appearance. (0.28,r.6).
6. Where in a cause or matter begun by originating summons anapplication is made to the Court for an order affecting a party who has failedto enter an appearance, the Court hearing the application may require to besatisfied in such manner as it thinks fit that the party is in default ofappearance.
Counter-claim by defendant. (0.28, r.7).
7. (1) A defendant to an action begun by originating summons who hasentered an appearance to the summons and who alleges that he has any claim or isentitled to any relief or remedy against the plaintiff in respect of any matter(whenever and however arising) may make a counter-claim in the action in respectof that matter instead of bringing a separate action.
(2) A defendant who wishes to make a counter-claim under this rule must atthe first or any resumed hearing of the originating summons by the Court, but,in any case, at as early a stage in the proceedings as is practicable, informthe Court of the nature of his claim and, without prejudice to the powers of theCourt under paragraph (3), the claim shall be made in such manner as the Courtmay direct under rule 4 or 8.
(3) If it appears on the application of a plaintiff against whom acounter-claim is made under this rule that the subject-matter of thecounter-claim ought for any reason to be disposed of by a separate action, theCourt may order the counter-claim to be struck out or may order it to be triedseparately or make such other order as may be expedient.
Continuation of proceedings as if cause or matter begun by writ. (0.28,r.8).
8. (1) Where, in the case of a cause or matter begun by originatingsummons, it appears to the Court at any stage of the proceedings that theproceedings should for any reason be continued as if the cause or matter hadbeen begun by writ, it may order the proceedings to continue as if the cause ormatter had been so begun and may, in particular, order that any affidavits shallstand as pleadings, with or without liberty to any of the parties to add theretoor to apply for particulars thereof.
(2) Where the Court decides to make such an order, Order 25, rules 2 to 7,shall, with the omission of so much of rule 7(1) as requires parties to serve anotice specifying the orders and directions which they require and with anyother necessary modifications, apply as if there have been a summons fordirections in the proceedings and that order were one of the orders to be madethereon.
(3) This rule applies notwithstanding that the cause or matter in questioncould not have been begun by writ.
(4) Any reference in these Rules to an action begun by writ shall, unlessthe context otherwise requires, be construed as including a reference to a causeor matter proceedings in which are ordered under this rule to continue as if thecause or matter had been so begun.
Order for hearing or trial. (0.28, r.9).
9. (1) Except where the Court disposes of a cause or matter begun byoriginating summons in Chambers or orders it to be transferred to a SubordinateCourt or makes an order in relation to it under rule 8 or some other provisionof these Rules, the Court shall, on being satisfied that the cause or matter isready for determination, make an order for the hearing or trial thereof inaccordance with this rule.
(2) Order 34, rules l to 5, shall apply in relation to a cause or matterbegun by originating summons and to an order made therein under this rule asthey apply in relation to an action begun by writ and shall have effectaccordingly with the necessary modifications and with the further modificationthat for references therein to the summons for directions there shall besubstituted references to the first or any resumed hearing of the originatingsummons by the Court.
Failure to prosecute proceedings with despatch. (0.28, r.10).
10. (1) If the plaintiff in a cause or matter begun by originatingsummons makes default in complying with any order or direction of the Court asto the conduct of the proceedings, or if the Court is satisfied that theplaintiff in a cause or matter so begun is not prosecuting the proceedings withdue despatch, the Court may order the cause or matter to be dismissed or maymake such other order as may be just.
(2) Paragraph (1) shall, with any necessary modifications, apply in relationto a defendant by whom a counterclaim is made under rule 7 as it applies inrelation to a plaintiff.
(3) Where, by virtue of an order made under rule 8, proceedings in a causeor matter begun by originating summons are to continue as if the cause or matterhad begun by writ, the foregoing provisions of this rule shall not apply inrelation to the cause or matter after the making of the order.
Abatement etc. of action. (0.28, r.11).
11. Order 34, rule 6, shall apply in relation to an action begun byoriginating summons as it applies in relation to an action begun by writ.
ORDER 29
PART I
INTERLOCUTORY INJUNCTIONS, INTERIM PRESERVATION OF PROPERTY ETC.
Application for injunction. (0.29, r.1).
[S 28/96]
1. (1) An application for the grant of an injunction may be made byany party to a cause or matter before or after the trial of the cause or matter,whether or not a claim for the injunction was included in that party’swrit, originating summons, counter-claim or third party notice, as the case maybe.
(2) Where the application is the plaintiff and the case is one ofurgency such application may be made ex parte by summons supported byan affidavit but, except as aforesaid, such application must be made bysummons.
(3) The plaintiff may not make such an application before the issue of thewrit or originating summons by which the cause or matter is to be begun exceptwhere the case is one of urgency, and in that case the injunction applied for may be granted on terms providing for the issue of the writ orsummons and such other terms, if any, as the Court thinks fit.
(4) An order for interim injunction must be in Form 58.
Cross-examination as to assets. (0.29, r.1A). [S 7/99]
1A. (1) Where —
(a) the Court has made an order restraining any party from removingfrom the jurisdiction of the High Court, or otherwise dealing with anyassets;
(b) that party has in compliance with the order, or any order madein connection with it, filed affidavit evidence as to his or any other assets;and
(c) the Court has ordered that that party shall be cross-examined on his affidavit,
the Court may order that the cross-examination shall be conducted otherwisethan before a Judge, in which case the cross-examination shall take place before aRegistrar.
(2) A cross-examination of a kind referred to in paragraph (1) (c) shall take place in chambers and no transcript or other record of it may be usedby any person, other than the party being cross-examined, for any purpose otherthan the purpose of the proceedings in which the order for the cross-examinationwas made, unless and to the extent that that party consents or the Court givesleave.
Detention, preservation etc. of subject matter of cause or matter. (0.29,r.2).
2. (1) On the application of any party to a cause or matter the Courtmay make an order for the detention, custody or preservation of any propertywhich is the subject-matter of the cause or matter, or as to which any questionmay arise therein, or for the inspection of any such property in the possessionof a party to the cause or matter.
(2) For the purpose of enabling any order under paragraph (1) to be carriedout the Court may by the order authorise any person to enter upon any immovableproperty in the possession of any party to the cause or matter.
(3) Where the right of any party to a specific fund is in dispute in a causeor matter, the Court may, on the application of a party to the cause or matter,order the fund to be paid into Court or otherwise secured.
just.
(4) An order under this rule may be made on such terms, if any, as the Courtthinks
(5) An application for an order under this rule must be made by summons.
(6) Unless the Court otherwise directs, an application by a defendant forsuch an order may not be made before he enters an appearance.
Power to order samples to be taken etc. (0.29, r.3).
3. (1) Where it considers it necessary or expedient for the purposeof obtaining full information or evidence in any cause or matter, the Court may,on the application of a party to the cause or matter, and on such terms, if any,as it thinks just, by order authorise or require any sample to be taken of anyproperty which is the subject-matter of the cause or matter or as to which anyquestion may arise therein, any observation to be made on such property or anyexperiment to be tried on or with such property.
(2) For the purpose of enabling any order under paragraph (1) to be carriedout the Court may by the order authorise any person to enter upon any immovableproperty in the possession of any party to the cause or matter.
(3) Rule 2(5) and (6) shall apply in relation to an application for an orderunder this rule as they apply in relation to an application for an order underthat rule.
Sale of perishable property etc. (0.29, r.4).
4. (1) The Court may, on the application of any party to a cause ormatter, make an order for the sale by such person, in such manner and on suchterms (if any) as may be specified in the order of any movable property which isthe subject-matter of the cause or matter or as to which any question arisestherein and which is of a perishable nature or likely to deteriorate if kept orwhich for any other good reason it is desirable to sell forthwith.
(2) Rule 2(5) and (6) shall apply in relation to an application for an orderunder this rule as they apply in relation to an application for an order underthat rule.
Order for early trial. (0.29, r.5).
5. Where on the hearing of an application, made before the trial of acause or matter, for an injunction or the appointment of a receiver or an orderunder rule 2, 3 or 4 it appears to the Court that the matter in dispute can bebetter dealt with by an early trial than by considering the whole merits thereoffor the purpose of the application, the Court may make an order accordingly andmay also make such order as respects the period before trial as the justice ofthe case requires.
Recovery of movable property subject to lien etc. (0.29, r.6).
6. Where the plaintiff, or the defendant by way of counter-claim,claims the recovery of specific movable property and the party from whomrecovery is sought does not dispute the title of the party making the claim byclaims to be entitled to retain the property by virtue of a lien or otherwise assecurity for any sum of money, the Court, at any time after the claim to be so entitled appears from the pleadings (if any) or by affidavit or otherwise to its satisfaction, may order that the party seeking to recover theproperty be at liberty to pay into Court, to abide the event of the action, theamount of money in respect of which the security is claimed and such further sum(if any) for interest and costs as the Court may direct and that, upon suchpayment being made, the property claimed be given up to the party claiming it,but subject to the provisions of the Exchange Control Act.
Directions. (0.29, r.7).
7. (1) Where an application is made under any of the foregoingprovisions of this Order, the Court may give directions as to the further proceedings in thecause or matter.
(2) If, in an action begun by writ, not being any such action as ismentioned in sub- paragraphs (a) to (c) and (e) to (g) of Order 25, rule 1(2), the Court thinks fit to give directionsunder this rule before the summons for directions, rules 2 to 7 of that Ordershall, with the omission of so much of rule 7(l) as requires parties to serve anotice specifying the orders and directions which they desire and with any othernecessary modifications, apply as if the application were a summons fordirections.
Property. (0.29, r.7A). [S 7/99]
7A. (1) An application for an order for the inspection of propertywhich may become the subject-matter of subsequent proceedings in the High Courtor as to which any question may arise in any such proceedings shall be made byoriginating summons and the person against whom the order is sought shall bemade defendant to the summons.
(2) An application after the commencement of proceedings for an order inrespect of property which is not the property of, or in the possession of, anyparty to the proceedings shall be by summons, which must be served on the personagainst whom the order is sought personally and on every party to theproceedings other than the applicant.
(3) A summons under paragraph (1) or (2) shall be supported by affidavitwhich must specify or describe the property in respect of which the order issought and show, if practicable by reference to any pleading served or intendedto be served in the proceedings or subsequent proceedings, that it is property which is or may become thesubject-matter of the proceedings or as to which any question arises or mayarise in the proceedings.
(4) A copy of the supporting affidavit shall be served with the summons onevery person on whom the summons is required to be served.
(5) An order made under this rule may be made conditional on theapplicant’s giving security for the costs of the person against whom it ismade or on such other terms, if any, as the Court thinks just.
(6) No such order shall be made if it appears to the Court —
(a) that compliance with the order, if made, would result in thedisclosure of information relating to a secret process, discovery or inventionnot in issue in the proceedings; and
(b) that the application would have been refused on that ground if—
(i) in the case of a summons under paragraph (1) the subsequentproceedings had already been begun; or
(ii) in the case of a summons under paragraph (2) the person against whomthe order is sought were a party to the proceedings.
Allowance of income of property pendente lite. (0.29,r.8).
8. Where any movable or immovable property forms the subject matter of any proceedings, and the Court is satisfied that it will be morethan sufficient to answer all the claims thereon for which provision ought to bemade in the proceedings, the Court may at any time allow the whole or part ofthe income of the property to be paid, during such period as it may direct, toany or all of the parties who have an interest therein or may direct that anypart of the movable property be transferred or delivered to any or all of suchparties.
Injunctions. (0.29, r.9).
9. (1) Without prejudice to the powers conferred by this Order, theCourt may, by order, whether interlocutory or final, grant an injunction in allcases in which it appears to the Court to be just and convenient to do so.
(2) Any order made under this Order may be made either unconditionally or onsuch terms and conditions as the Court thinks fit.
(3) The power of the Court under this Order, to grant an interlocutoryinjunction restraining the party to any proceedings from removing from thejurisdiction of the High Court of Brunei Darussalam, to otherwise dealing with assets located within that jurisdiction, shall be exercisable as wellin cases where that party is, as well as in cases where he is not, domiciled,resident or present within the jurisdiction.
PART II
INTERIM PAYMENTS
Interpretation of Part II. (0.29, r.10). [S 28/96]
10. In this Part of this Order —
“interim payments”, in relation to a defendant, means a paymenton account of any damages, debt or other sum (excluding costs) which he may beheld liable to pay to or for the benefit of the plaintiff; and any reference tothe plaintiff or defendant includes a reference to any person who, for the purpose of the proceedings, acts as next friend of the plaintiff orguardian of the defendant.
Application for interim payment. (0.29, r.11). [S 28/96]
11. (1) The plaintiff may, at any time after the writ has been servedon a defendant and the time limited for him to acknowledge service has expired,apply to the Court for an order requiring that defendant to make an interimpayment.
(2) An application under this rule shall be made by summons but may beincluded in a summons for summary judgment under Order 14.
(3) An application under this rule shall be supported by an affidavit whichshall —
(a) verify the amount of the damages, debt or other sum to which the application relates and the grounds of the application;
(b) exhibit any documentary evidence relied on by the plaintiff insupport of the application; and
(c) if thc plaintiff’s claim is made under the Emergency (FatalAccidents and Personal Injuries) Order, 1991, contain the particulars mentionedin section 5(4) of that Order.
(4) The summons and a copy of the affidavit in support and any documentsexhibited thereto shall be served on the defendant against whom the order issought not less than 10 clear days before the return day.
(5) Notwithstanding the making or refusal of an order for an interimpayment, a second or subsequent application may be made upon cause shown.
Order for ir interim payment in respect of damages. (0.29, r.12). [S 28/96]
12. (1) If, on the hearing of an application under rule 11 in anaction for damages, the Court is satisfied —
(a) that the defendant against whom the order is sought (in thisparagraph referred to as “the respondent”) has admitted liabilityfor the plaintiff’s damages;
(b) that the plaintiff’s has obtained judgment against the respondent for damages to be assessed; or
(c) that, if the action proceeded to trial, the plaintiff would obtainjudgment for substantial damages against the respondent or, where there are two or more defendants, against any of them,
the Court may, if it thinks fit and subject to paragraph (2), order therespondent to make an interim payment of such amount as it thinks just, notexceeding a reasonable proportion of the damages which in the opinion of theCourt are likely to be recovered by the plaintiff, after taking into account anyrelevant contributory negligence and any setoff, cross-claim or counter-claim onwhich the respondent may be entitled to rely.
(2) No order shall be made under paragraph (1), in an action for personalinjuries, if it appears to the Court that the defendant is not a person fallingwithin one of thc following categories, namely —
(a) a person who is insured in respect of the plaintiff’sclaim;
(b) a public body; or
(c) a person whose means and resources are such as to enable him tomake the interim payment.
Order for interim payment in respect of sums other then damages.(0.29, r.13).
[S 28/96]
13. If, on the hearing of an application under rule 11, the Court issatisfied —
(a) that the plaintiff has obtained an order for an account to betaken as between himself and the defendant and for any amount certified due ontaking the account to be paid;
(b) that the plaintiff’s action includes a claim forpossession of land and, if the action proceeded to trial, the defendant would beheld liable to pay to the plaintiff a sum of money in respect of thedefendant’s use and occupation of the land during the pendency of theaction, even if a final judgment or order were given or made in favour of thedefendant; or
(c) that, if the action proceeded to trial, the plaintiff would obtainjudgment against the defendant for a substantial sum of money apart from anydamages or costs,
the Court may, if it thinks fit, and without prejudice to any contentions ofthe parties as to the nature or character of the sum to be paid by the defendantorder the defendant to make an interim payment of such amount as it thinks just,after taking into account any set-off, cross- claim or counter-claim on whichthe defendant may be entitled to rely.
Manner of interim payment. (0.29, r.14). [S 28/96]
14. (1) Subject to Order 73, rule 12, the amount of any interimpayment ordered to be made shall be paid to the plaintiff unless the orderprovides for it to be paid into Court, and where the amount is paid into Court,the Court may, on the application of the plaintiff, order the whole or any partof it to be paid out to him at such time or times as the Court thinks fit.
(2) An application under paragraph (1) for money in Court to be paid out maybe made ex parte , but the Court hearing the application may direct asummons to be issued.
(3) An interim payment may be ordered to be made in one sum or by such instalments as the Court thinks fit.
(4) Where a payment is ordered in respect of the defendant’s use andoccupation of land, the order may provide for periodical payments to be madeduring the pendency of the action.
Directions on application under rule 11. (0.29, r.15). [S28/96]
15. Where an application is made under rule 11, the Court may givedirections as to the further conduct of the action, and, so far as may beapplicable, Order 25, rules 2 to 7, shall, with the omission of so much of rule7(1) as requires the parties to serve a notice specifying the orders anddirections which they require and with any other necessary modifications, applyas if the application were a summons for directions, and, in particular, theCourt may order an early trial of the action.
Non-disclosure of interim payment. (0.29, r.16). [S28/96]
16. The fact that an order has been made under rules 12 or 13 shallnot be pleaded and, unless the defendant consents or the court so directs, nocommunication of that fact or of the fact that an interim payment has been made,whether voluntarily or pursuant to an order, shall be made to the Court at thetrial, or hearing, of any question or issue as to liability or damages until allquestions of liability and amount have been determined.
Payment into Court in satisfaction. (0.29, r.17). [S28/96]
17. Where, after making an interim payment, whether voluntarily orpursuant to an order, a defendant pays a sum of money into Court under Order 22,rule 1, the notice of payment must state that the defendant had taken intoaccount the interim payment.
Adjustment on final judgment or order or on discontinuance. (0.29, r.18). [S 28/96]
18. (1) Where a defendant has been ordered to make an interim paymentor has in fact made an interim payment, whether voluntarily or pursuant to anorder, the Court may, in giving or making a final judgment or order, or grantingthe plaintiff leave to discontinue his action or to withdraw the claim inrespect of which the interim payment has been made, or at any other stage of theproceedings on the application of any party, make such order with respect to theinterim payment as may be just, and in particular —
(a) an order for the repayment by the plaintiff of all or part ofthe interim payment; or
(b) an order for the payment to be varied or discharged; or
(c) an order for the payment by any other defendant of any part of theinterim payment which the defendant who made it is entitled to recover from himby way of contribution or indemnity or in respect of any remedy or relief relating to or connected with the plaintiff’s claim.
Counterclaims and other proceedings. (0.29, r.19). [S28/96]
19. The preceding rules in this Part of this Order shall apply, with the necessary modifications, to any counter-claim or proceedingcommenced otherwise than by writ, where one party seeks an order for an interimpayment to be made by another.
ORDER 30
RECEIVERS
Application for receiver and injunction. (0.30, r.1).
1. (1) An application for the appointment of a receiver may be madeby summons or motion.
(2) An application for an injunction ancillary or incidental to an orderappointing a receiver may be joined with the application for such order.
(3) Where the applicant wishes to apply for the immediate grant of suchinjunction, he may do so ex parte by summons supported by anaffidavit.
(4) The Court hearing an application under paragraph (3) may grant aninjunction restraining the party beneficially entitled to any interest in theproperty of which a receiver is sought from assigning, charging or otherwisedealing with that property until after the hearing of a summons for theappointment of the receiver and may require such a summons returnable on suchdate as the Court may direct, to be issued.
Giving of security by receiver. (0.30, r.2).
2. (1) Where a judgment is given, or order made, directing the appointment of a receiver, then, unless the judgment or order otherwise directs, a person shall not be appointed receiver in accordancewith the judgment or order until he has given security in accordance with thisrule.
(2) Where by virtue of paragraph (1), or of any judgment or order appointinga person named therein to be receiver, a person is required to give security inaccordance with this rule he must give security approved by the Court duly toaccount for what he receives as receiver and to deal with it as the Courtdirects.
(3) Unless the Court otherwise directs, the security shall be by guaranteeor, if the amount for which the security is to be given does not exceed $20,000,by an undertaking in Form 59.
(4) The guarantee or undertaking must be filed in the Registry.
Remuneration of receiver. (0.30, r.3).
[S 31/00]
3. A person appointed receiver shall be allowed such properremuneration, if any, as may be fixed by the Court.
Service. (0.30, r.3A). [S 77/00]
3A. A copy of the judgment or order appointing a receiver shall beserved by the party having conduct of the proceedings on the receiver and allother parties to the cause or matter in which the receiver has beenappointed.
Receiver’s accounts. (0.30, r.4).
4. (1) A receiver must submit accounts to the Court at such intervalsor on such dates as the Court may direct in order that they may be passed.
(2) Unless the Court otherwise directs, each account submitted by a receivermust be accompanied by an affidavit verifying it in Form 60.
(3) The receiver’s account and affidavit (if any) must be left at theRegistry, and the plaintiff or party having the conduct of the cause or mattermust thereupon obtain an appointment for the purpose of passing suchaccount.
(4) The passing of a receiver’s account must be certified by theRegistry.
Payment of balance etc. by receiver. (0.30, r.5).
5. The days on which a receiver must pay into Court the amounts shownby his account as due from him, or such part thereof as the Court may certify asproper to be paid in by him, shall be fixed by the Court.
Default by receiver. (0.30, r.6).
6. (1) Where a receiver fails to attend for the passing of anyaccount of his, or fails to submit any account, make any affidavit or do anyother thing which he is required to submit, make or do, he and any or all of theparties to the cause or matter in which he was appointed may be required toattend in Chambers to show cause for the failure, and the Court may, either inchambers or after adjournment into Court, give such directions as it thinksproper including, if necessary, directions for the discharge of the receiver andthe appointment of another and the payment of costs.
(2) Without prejudice to paragraph (1), where a receiver fails to attend forthe passing of any account of his or fails to submit any account or fails to payinto Court on the date fixed by the Court any sum shown by his account as duefrom him, the Court may disallow any remuneration claimed by the receiver in anysubsequent account and may, where he has failed to pay any such sum into Court,charge him with interest at the rate of 6 per centum per annum on that sum whilein his possession as receiver.
Directions. (0.30, r.7). [S 77/00]
7. A receiver may at any time request the Court to give him directionsand such request shall state in writing the matters with regard to whichdirections are required.
ORDER 31
SALES ETC. OF IMMOVABLE PROPERTY BY ORDER OF COURT
Power to order sale of immovable property. (0.31, r.1).
1. Where in any cause or matter relating to any immovable property it appears necessary or expedient for the purposes of the cause ormatter that the property or any part thereof should be sold, the Court may orderthat property or part to be sold, and any party bound by the order and inpossession of that property or part, or in receipt of the rents and profitsthereof, may be compelled to deliver up such possession or receipt to thepurchaser or to such other person as the Court may direct.
Manner of carrying out sale. (0.31, r.2).
2. (1) Where an order is made, whether in court or in Chambers, directing any immovable property to be sold, the Court may permitthe party or person having the conduct of the sale to sell the property in suchmanner as he thinks fit, or may direct that the property be sold in such manneras the Court may either by the order or under paragraph (4) direct for the bestprice that can be obtained, and all proper parties shall join in thesale and conveyance as the Court shall direct.
(2) The party entitled to prosecute the order must, subject to paragraph(3), take out a summons to proceed with the order.
(3) Where an order for sale contains directions with regard to effecting thesale, the party entitled to prosecute the order shall not take out a summonsunder paragraph (2) unless and until he requires the further directions of theCourt.
(4) On the hearing of the summons the Court may give such directions as itthinks fit for the purpose of effecting the sale, including, without prejudiceto the generality of the foregoing words, directions —
(a) appointing the party or person who is to have the conduct ofthe sale;
(b) fixing the manner of sale, whether by contract conditional onthe approval of the Court, private treaty, public auction, tender or some othermanner;
(c) fixing a reserve or minimum price;
(d) requiring payment of the purchase money into Court or totrustees or other persons;
(e) for settling the particulars and conditions of sale;
(f) for obtaining evidence of the value of the property;
(g) fixing the security (if any) to be given by the auctioneer, ifthe sale is to be by public auction, and the remuneration to be allowed him;
(h) requiring the title to be referred to an advocate and solicitorfor his opinion thereon and to settle the particulars and conditions ofsale.
Certifying result of sale. (0.31, r.3).
3. (1) If either the Court has directed payment of the purchase moneyinto Court or the Court so directs, the result of a sale by order of the Court must becertified in Form 61 —
(a) in the case of a sale by public auction, by the auctioneer whoconducted the sale; and
(b) in any other case, by the solicitor or the party or personhaving the conduct of the sale,
and the Court may require the certificate to be verified by the affidavit ofthe auctioneer or solicitor, as the case may be.
(2) The solicitor of the party or person having the conduct of the sale mustfile the certificate and affidavit (if any) in the Registry.
Charge, exchange or partition under order of the Court. (0.31,r.4).
4. Rules 2 and 3 shall, so far as applicable and with the necessarymodifications, apply in relation to the charge, exchange or partition of anyimmovable property under an order of the Court as they apply in relation to thesale of any immovable property under such an order.
Reference of matters to a solicitor. (0.31, r.5).
5. The Court may refer to a solicitor —
(a) any matter relating to the investigation of the title to anyproperty with a view to an investment of money in the purchase or on chargethereof, or with a view to the sale thereof;
(b) any matter relating to the settlement of a draft of atransfer charge, settlement or other instrument; and
(c) any other matter it thinks fit,
and may act upon his opinion in the matter referred.
Objection to opinion of solicitor. (0.31, r.6).
6. Any party may object to the opinion given by the solicitor on areference under rule 5, and if he does so the point in dispute shall be determined by the Judgeeither in Chambers or in Court as he thinks fit.
ORDER 32
APPLICATIONS AND PROCEEDINGS IN CHAMBERS
Mode of making application. (0.32, r.1).
1. Except as provided by Order 25, rule 7, every application inChambers must be made by summons in Form 62.
Issue of summons. (0.32, r.2).
2. (1) Issue of a summons by which an application in Chambers is tobe made takes place on its being sealed by an officer of the Registry.
(2) A summons may not be amended after issue without the leave of theCourt.
Service of summons. (0.32, r.3).
3. A summons asking only for the extension or abridgment of any periodof time may be served on the day before the day specified in the summons for thehearing thereof but, except as aforesaid and unless the Court otherwise ordersor any of these Rules otherwise provides, a summons must be served on everyother party not less than 2 clear days before the day so specified.
Adjournment of hearing. (0.32, r.4).
4. (1) The hearing of a summons may be adjourned from time to time,either generally or to a particular date, as may be appropriate.
(2) If the hearing is adjourned generally, the party by whom the summons wastaken out may restore it to the list on 2 clear days' notice to all the otherparties on whom the summons was served.
Proceeding in absence of party failing to attend. (0.32, r.5).
5. (1) Where any party to a summons fails to attend on the first orany resumed hearing thereof, the Court may proceed in his absence if, having regard to the nature of the application, it thinks it expedient soto do.
(2) Before proceeding in the absence of any party the Court may require tobe satisfied that the summons or as the case may be, notice of the timeappointed for the resumed hearing was duly served on that party.
(3) Where the Court hearing a summons proceeded in the absence of a party,then, provided that any order made on the hearing has not been perfected, theCourt, if satisfied that it is just to do so, may rehear the summons.
(4) Where an application made by summons has been dismissed without ahearing by reason of the failure of the party who took out the summons to attendthe hearing, the Court, if satisfied that it is just to do so. may allow thesummons to he restored to the list.
Order made ex parte may be set aside. (0.32, r.6).
6. The Court may set aside an order made ex parte .
7. Revoked. (0.32, r.7).
[S 8/99]
Application for leave to institute certain proceedings. (0.32,r.8).
8. (1) The jurisdiction of the High Court to grant leave under anylaw concerned with mental disorders to bring proceedings against a person, maybe exercised in Chambers only by a Judge.
(2) No appearance need be entered to an originating summons by which an application for leave under the said law is made.
(3) The application must be supported by an affidavit setting out thegrounds on which such leave is sought and any facts necessary to substantiatethose grounds.
Jurisdiction of Registrar. (0.32, r.9).
9. The Registrar shall have power to transact all such business andexercise all such authority and jurisdiction as under the Act or these Rules maybe transacted and exercised by a Judge or Court except such business, authorityand jurisdiction as the Chief Justice may from time to time direct to betransacted or exercised by a Judge in person or as may by any of these Rules beexpressly directed to be transacted or exercised by a Judge in person: Providedthat if, for any reason, no Judge is present in Brunei Darussalam, the Registrarmay exercise any of such powers as may have been so directed.
Reference of matter to Judge. (0.32, r.10).
10. The Registrar may refer to a Judge any matter which he thinksshould properly be decided by a Judge, and the Judge may either dispose of thematter or refer it back to the Registrar, as the case may be, with suchdirections as he thinks fit.
Power to direct hearing in Court. (0.32, r.11).
11. (1) The Judge in Chambers may direct that any summons,application or appeal shall be heard in Court or shall be adjourned into Courtto be so heard if he considers that by reason of its importance or for any otherreason it should be so heard.
(2) Any matter heard in Court by virtue of a direction under paragraph (1)may be adjourned from Court into Chambers.
Obtaining assistance of experts. (0.32, r.12).
12. If the Court thinks it expedient in order to enable it better todetermine any matter arising in proceedings in Chambers, it may obtain theassistance of any person specially qualified to advise on that matter and mayact upon his opinion.
Notice of filing etc. of affidavit. (0.32, r.13).
13. Any party —
(a) filing an affidavit intended to be used by him in anyproceedings in Chambers; or
(b) intending to use in any such proceedings any affidavit filed byhim in previous proceedings,
must give notice to every other party of the filing or, as the case may be,of his intention to do so.
Disposal of matters in Chambers. (0.32, r.14).
14. The Judge may by any judgment or order made in Court in anyproceedings direct that such matters (if any) in the proceedings as he mayspecify shall be disposed of in Chambers.
Papers for use of Court etc. (0.32, r.15).
15. The original of any document which is to be used in evidence inproceedings in Chambers must, if it is available, be brought in, and copies ofany such document or of any part thereof shall be supplied for the use of theCourt or be given to the other parties to the proceedings.
Uncontested chamber applications. (0.32, r.16).
16. If a Judge is satisfied that all parties to an application atChambers have been served and have consented to the application he may in theabsence of the parties or their solicitors order the granting of the applicationby minute on the file and the Court shall inform the applicant or his solicitorin writing of the order.
Notes of proceeding in Chambers. (0.32, r.17). [S 77/00]
17. (1) A note shall be kept of all proceedings in Chambers, with ashort statement of the matters decided at each hearing.
(2) The note specified in paragraph (1) shall be privileged and private andshall be disclosed to any person without the leave of the Judge or Registrarconcerned.
ORDER 33
MODE OF TRIAL
Mode of trial. (0.33, r.1).
1. Subject to the provisions of these Rules, a cause or matter, or anyquestion or issue arising therein, may be tried before —
(a) a Judge; or
(b) the Registrar.
Time etc. at trial of questions or issues. (0.33, r.2).
2. The Court may order any question or issue arising in a cause ormatter, whether of fact or law or partly of fact and partly of law, and whetherraised by the pleadings or otherwise, to be tried before, at or after the trialof the cause or matter, and may give directions as to the manner in which thequestion or issue shall be stated.
Determining the mode of trial. (0.33, r.3).
3. (1) In every action begun by writ, an order made on the summonsfor directions shall determine the mode of the trial; and any such order may bevaried by a subsequent order of the Court made at or before the trial.
(2) In any such action different questions or issues may be ordered to betried by different modes of trial and one or more questions or issues may beordered to be tried before the others.
(3) The references in this Order to the summons for directions includereferences to any summons or application to which, under any of these Rules,Order 25, rules 2 to 7 are to apply, with or without modifications.
Dismissal of action etc. after decision of preliminary issue. (0.33,r.4).
4. If it appears to the Court that the decision of any question orissue arising in a cause or matter and tried separately from the cause or mattersubstantially disposes of the cause or matter or renders the trial of the causeor matter unnecessary, it may dismiss the cause or matter or make such otherorder or give such judgment therein as may be just.
Split trial offer on liability. (0.33, r.4A). [S 7/99; S31/00]
4A. (1) This rule applies where an order is made under rule 3(2) forthe issue of liability to be tried before any issue or question concerning theamount of damages to be awarded if liability is established.
(2) After the making of an order to which paragraph (1) applies, any partyagainst whom a finding of liability is sought may (without prejudice to hisdefence) make a written offer to the other party to accept liability up to aspecified proportion.
(3) Any offer made under the preceding paragraph may be brought to theattention of the Judge after the issue of liability has been decided, but notbefore.
ORDER 34
SETTING DOWN FOR TRIAL ACTION BEGUN BY WRIT
Application and interpretation. (0.34, r.1).
1. This Order applies to actions begun by writ and, accordingly,references in this Order to an action shall be construed as references to anaction so begun.
Time for setting down action. (0.34, r.2).
2. (1) Every order made on a summons for directions shall fix aperiod within which the plaintiff is to set down the action for trial and mustcontain an estimate of the length of the trial and the approximate number ofwitnesses, if any.
(2) Where the plaintiff does not, within the period fixed under paragraph(1), set the action down for trial, the defendant may set the action down fortrial or may apply to the Court to dismiss the action for want of prosecution and, on the hearing of any such application, the Court mayorder the action to be dismissed accordingly or may make such order as it thinksjust.
(3) An action set down for trial must contain an estimate of the length ofthe trial and the approximate number of witnesses (if any) and shall, subject toany directions under rule 4, specify the list in which the action is to be put.
Lodging documents when setting down. (0.34, r.3).
3. (1) In order to set down for trial an action, the party setting itmust deliver to the Registrar, by post or otherwise, a request in Form 63 thatthe action may be set down for trial together with two bundles (one of whichshall serve as the record and the other be for the use of the Judge) consistingof one copy of each of the following documents this is to say —
(a) the writ;
(b) the pleadings (including any affidavits ordered to stand aspleadings), any notice or order for particulars and the particulars given;and
(c) all orders made on the summons for directions.
(2) Such bundle must be bound up in the proper chronological order and haveindorsed thereon the names, addresses and telephone numbers of the solicitorsfor the parties or, in the case of a party who has no solicitor, of the partyhimself.
Directions relating to lists. (0.34, r.4).
4. Nothing in this Order shall prejudice any powers of the Chief Justice to give directions —
(i) specifying the lists in which actions, or actions of any class or description, are to be set down for trial and providing for thekeeping and publication of the lists;
(ii) providing for the determination of a date for the trial of any actionwhich has been set down or a date before which the trial thereof is not to takeplace; and
(iii) as to the making of applications (whether to a Court or a Judge or theRegistrar) to fix, vacate or alter any such date, and, in particular, requiringany such application to be supported by an estimate of the length of the trialand any other relevant information.
Notification of setting down. (0.34, r.5).
5. (1) A party to an action who sets it down for trial must, within24 hours after doing so, notify in Form 64 the other parties to the action thathe has done so.
(2) It shall be the duty of all parties to an action entered in any list tofurnish without delay to the Registrar all available information as to theaction being or being likely to be settled, or affecting the estimated length of the trial, and, if the action is settled or withdrawn, tonotify the Registrar of the fact without delay.
Abatement etc. of action. (0.34, r.6).
6. (1) Where after an action has been set down for trial the actionbecomes abated, or the interest or liability of any party to the action isassigned or transmitted to or devolves on some other person, the solicitor for the plaintiff or other party having theconduct of the action must, as soon as practicable after becoming aware of it,certify the abatement or change of interest or liability and send thecertificate to the Registrar and the Registrar shall cause the appropriate entryto be made in the cause book and in the list of actions set down for trial.
(2) Where in any such list an action stands for one year marked as abated orordered to stand over generally, the action shall on the expiration of that yearbe struck out of the list unless, in the case of an action ordered to stand overgenerally, the order otherwise provides.
Notice of trial. (0.34, r.7).
7. Notice of trial may be given by the plaintiff or other party in theposition of the plaintiff at any time after a reply has been delivered or afterthe time for delivery of a reply has expired.
Notice of trial by defendant. Application to dismiss for want ofprosecution. (0.34, r.8).
8. (1) If in any cause or matter where a notice of trial is requiredthe plaintiff does not within six weeks after the time when he first becomesentitled to give notice of trial under rule 7 of this Order or within suchextended time as the Court or a Judge may allow, give notice of trial, thedefendant may, before notice of trial given by the plaintiff, give notice oftrial, or may apply to the Court or Judge to dismiss the action for want ofprosecution; and on the hearing of such application, the Court or a Judge mayorder the action to be dismissed accordingly, or may make such other order, andon such terms, as to the Court or Judge may seem just.
(2) If no notice of trial is given or if the defendant makes no applicationto dismiss the action under sub-rule (1) the Court or Judge may after givingsuch notice as may be necessary dismiss the cause or matter or may make suchorder and on such terms as to costs or otherwise as to the Court or Judge mayseem just.
The Court bundle. (0.34, r.9). [S 7/99]
9. (1) At least 14 days before the date fixed for the trial, or, inthe case of an action entered in any running list, within three weeks of thedefendant’s receiving notice of such entry, the defendant shall identifyto the plaintiff those documents central to his case which he wishes included inthe bundle to be provided under paragraph (2).
(2) At least two clear days before the date fixed for the trial theplaintiff shall lodge two bundles consisting of one copy of each of thefollowing documents —
(a) witness statements which have been exchanged, andexperts’ reports which have been disclosed, together with an indication ofwhether the contents of such document are agreed;
(b) those documents which the defendant wishes to have included inthe bundle and those central to the plaintiff’s case; and
(c) a note agreed by the parties or, failing agreement, a note by eachparty giving (in the following order) —
(i) a summary of the issues involved;
(ii) a summary of any propositions of law to be advanced together with alist of the authorities to be cited; and
(iii) a chronology of relevant events.
(3) Nothing in this rule shall —
(a) prevent the Court from giving, whether before or after thedocuments have been lodged, such further or different directions as to thedocuments to be lodged as may, in the circumstances, be appropriate; or
(b) prevent the making of an order for the transfer of the actionto another court.
(4) For the purposes of this rule, “plaintiff” includes adefendant where an action is proceeding on a counterclaim and“defendant” includes any other party who is entitled under any orderof the Court or otherwise to be heard at the trial.
Parties to appear by special notice. (0.34, r.10).
10. (1) Parties or their solicitors in a cause or matter may byspecial notice be required to appear on any day of for mention of such cause ormatter.
(2) If the plaintiff or defendant fails to appear, the Court or Judge mayfix a date for trial or make such other order as to the Court or Judge may seemjust.
ORDER 34A
PRE-TRIAL CONFERENCES
Power to make orders. (0.34A, r.1). [S 8/99]
1. (1) Notwithstanding anything in these Rules, the Court may, at anytime after the commencement of any proceedings, of its own motion direct anyparty or parties to those proceedings to appear before it, in order that theCourt may make such order or give such direction as it thinks fit, for the just,expeditious and economical disposal of the cause or matter.
(2) Where any party fails to comply with any order made or direction givenby the Court under paragraph (1), the Court may dismiss the action, strike outthe defence or counter-claim or make such other order as it thinks fit.
(3) The Court may, in exercising its powers under paragraph (1), make suchorder as to costs as it thinks fit.
(4) Any judgment, order or direction given or made against any party whodoes not appear before the Court when directed to do so under paragraph (1) maybe set aside or varied by the Court on such terms as it thinks just.
Directions as to pre-trial conferences. (0.34A, r.2). [S8/99]
2. (1) Without prejudice to rule 1, at any time before any action orproceedings are tried, the Court may direct parties to attend a pre-trialconference relating to the matters arising in the action or proceedings.
(2) At the pre-trial conference, the Court may consider any matter includingthe possibility of settlement of any or all of the issues in the action orproceedings and require the parties to furnish the Court with any suchinformation as it thinks fit, and may also give all such directions as appear tobe necessary or desirable for securing the just, expeditious and economicaldisposal of the action or proceedings.
(3) The Court, having made directions under rule 2(2) or rule 3 may eitheron its own motion or upon the application of any party, if any party defaults incomplying with any such directions, dismiss such action or proceedings or strikeout the defence or counterclaim or enter judgment or make such order as itthinks fit.
(4) Any judgment or order made under rule 2(3) may be set aside by theCourt, on the application of the party, on such terms, if any, as it thinksjust.
(5) At any time during the pre-trial conference where the parties areagreeable to a settlement of some or all of the matters in dispute in the actionor proceedings, the Court may enter judgment in the action or proceedings ormake such order to give effect to the settlement.
Notification. (0.34A, r.3). [S 8/99]
3. All parties shall be informed of the date and time appointed forthe holding of the pre-trial conference and each party shall comply with anysuch directions.
Attendance. (0.34A, r.4). [S 8/99]
4. Parties to the action or proceedings may be represented at thepre-trial conference by their solicitor, if any, but may, if they so desire,with the leave of the Court attend the pre- trial conference personally, at thetime originally appointed or as adjourned, in addition to their solicitor.
Adjournment. (0.34A, r.5). [S 8/99]
5. A pre-trial conference may be adjourned from time to time, eithergenerally or to a particular date, as may be appropriate.
Failure to appear. (0.34A, r.6). [S 8/99]
6. (1) If, at the time appointed for the pre-trial conference, one ormore of the parties fails to attend, the Court may dismiss the action orproceedings or strike out the defence or counterclaim or enter judgment or makesuch other order as the Court thinks fit.
(2) An order made by the Court in the absence of a party concerned oraffected by the order may be set aside by the Court, on the application of thatparty, on such terms as it thinks just.
(3) Without prejudice to the preceding paragraphs of this rule, where one ormore of the parties to the action or proceedings fails to attend the pre-trialconference, the Court may, if it thinks fit, adjourn the conference.
Non-disclosure. (0.34A, r.7). [S 8/99]
7. No communication of facts disclosed or of any matter considered inthe course of a pre-trial conference in any action or proceedings shall be madeto the Court conducting the trial of the action or proceeding.
ORDER 35
PROCEEDINGS AT TRIAL
Failure to appear by both parties or one of them. (0.35, r.1).
1. (1) If, when the trial of an action is called on, neither partyappears, the action may be struck out of the list without prejudice, however, tothe restoration thereof, on the direction of a Judge.
(2) If, when the trial of an action is called on, one party does not appear,the Judge may proceed with the trial of the action or any counterclaim in theabsence of that party.
Judgment etc. given in absence of party may be set aside. (0.35,r.2).
2. (1) Any judgment or order obtained where one party does not appearat the trial may be set aside by the Court, on the application of that party, onsuch terms as it thinks just.
(2) An application under this rule must be made within 7 days, after thetrial.
Adjournment of trial. (0.35, r.3).
3. The Judge may, if he thinks it expedient in the interest ofjustice, adjourn a trial for such time, and upon such terms, if any, as hethinks fit.
Order of speeches. (0.35, r.4).
4. (1) The Judge before whom an action is tried may give directionsas to the party to begin and the order of speeches at the trial, and subject toany such directions, the party to begin and the order of speeches shall be thatprovided by this rule.
(2) Subject to paragraph (6), the plaintiff shall begin by opening hiscase.
(3) If the defendant elects not to adduce evidence, then, whether or not thedefendant has in the course of cross-examination of a witness for the plaintiffor otherwise put in a document, the plaintiff may, after the evidence on hisbehalf has been given, make a second speech closing his case and the defendantshall then state his case.
(4) If the defendant elects to adduce evidence, he may, after any evidenceon behalf of the plaintiff has been given, open his case and, after the evidenceon his behalf has been given, make a second speech closing his case and at theclose of the defendant’s case the plaintiff may make a speech inreply.
(5) Where there are two or more defendants who appear separately or areseparately represented, then —
(a) if none of them elects to adduce evidence, each of them shallstate his case in the order in which his name appears on the record;
(b) if each of them elects to adduce evidence, each of them mayopen his case and the evidence on behalf of each of them shall be given in theorder aforesaid and the speech of each of them closing his case shall be made inthat order after the evidence on behalf of all the defendants has beengiven;
(c) if some of them elect to adduce evidence and some do not, thosewho do not shall state their cases in the order aforesaid after the speech ofthe plaintiff in reply to the other defendants.
(6) Where the burden of proof of all the issues in the action lies on thedefendant or, where there are two or more defendants and they appear separately or are separately represented, on one of the defendants, thedefendant or that defendant, as the case may be, shall be entitled to begin, andin that case paragraphs (2), (3) and (4) shall have effect in relation to, andas between, him and the plaintiff as if for references to the plaintiff and thedefendant there were substituted references to the defendant and the plaintiffrespectively.
(7) Where, as between the plaintiff and any defendant, the party who would,but for this paragraph, be entitled to make the final speech raises any freshpoint of law in that speech or cites in that speech any authority not previouslycited, the opposite party may make a further speech in reply, but only inrelation to that point of law or that authority, as the case may be.
Inspection by Judge. (0.35, r.5).
5. The Judge by whom any cause or matter is tried may inspect anyplace or thing with respect to which any question arises in the cause or matter.All such expenses shall be costs in the proceedings.
Death of party before giving of judgment. (0.35, r.6).
6. Where a party to any action dies after the finding of the issues offact and before judgment is given, judgment may be given notwithstanding thedeath, but the foregoing provision shall not be taken as affecting the power ofthe Judge to make an order under Order 15, rule 7(2), before givingjudgment.
Entries to be made by Registrar or proper officer of the Court. (0.35,r.7).
7. (1) The Registrar or the proper officer of the Court must make anote in the Minute Book of the time at which the trial commences and terminates,and the time actually occupied on each day on which the trial takes place.
(2) At the conclusion of the trial of any action, the Registrar or the saidofficer must enter in the Minute Book the judgment given by the Judge, and anyorder made by the Judge as to costs.
(3) The certificate of the Registrar or the said officer in Form 65 shall besufficient authority for the proper officer in the Registry to enter judgmentaccordingly.
List of exhibits. (0.35, r.8).
8. (1) The Registrar or the proper officer of the Court shall takecharge of every document or object put in as an exhibit during the trial of anyaction and shall mark or label every exhibit with a letter or letters indicatingthe party by whom the exhibit is put in or the witness by whom it is proved, andwith a number, so that all the exhibits put in by a party, or proved by awitness, are numbered in one consecutive series.
In this paragraph a witness by whom an exhibit is proved includes a witnessin the course of whose evidence the exhibit is put in.
(2) The Registrar or the said officer shall cause a list in Form 66 to bemade of all the exhibits in the action, and any party may, on payment of theprescribed fee, have an office- copy of that list.
(3) The list of exhibits when completed shall be attached to the pleadingsand shall form part of the record of the action.
(4) For the purpose of this rule a bundle of documents may be treated andcounted as one exhibit.
Custody of exhibit after trial. (0.35, r.9).
9. (1) The Registrar shall retain all exhibits in his custody dulymarked or labelled so that in the event of an appeal to the Court of Appeal, hemay be able to produce the exhibits so marked or labelled at the hearing of theappeal.
(2) After the expiration of the time for appealing and if no appeal has beenbrought, or after the final disposal of the appeal, as the case may be, theexhibits shall be returned on request of the respective parties who put themin:
Provided that where the claim or counter-claim is for money due under anegotiable instrument which is received in evidence, the negotiable instrumentmust be retained in the Registry and must not be delivered out of the custody ofthe Registry except upon an order of the Registrar.
Impounded documents. (0.35, r.10).
10. (1) Documents impounded by order of the Court shall not bedelivered out of the custody of the Court except in compliance with an order made by the Judge on an application made by motion:
Provided that where the Attorney General makes a written request inthat behalf, documents so impounded shall be delivered into his custody.
(2) Documents impounded by order of the Court, while in the custody of theCourt, shall not be inspected except by a person authorised to do so by an ordersigned by a Judge.
Continuation of trial by another Judge. (0.35, r.11).
11. (1) When a Judge who has commenced a trial of any proceedings isunable through death, illness or other cause to conclude the trial, anotherJudge may with the consent of the parties deal with the evidence alreadyrecorded and proceed with the trial from the stage at which the previous Judgeleft it.
(2) Nothing herein shall prevent the Judge who continues the trial fromrecalling all or any of the witnesses or taking their evidence afresh.
ORDER 36
TRIALS BEFORE AND INQUIRIES BY REGISTRAR OR OTHER COURT
[S 31/00]
Power to order trial before Registrar or other Court. (0.36,r.1).
1. If in any cause or matter, the Court considers, upon application byany party or of its own motion, that having regard to the nature of the case itis desirable (whether on grounds of expedition, economy or convenience orotherwise) in the interests of one or more of the parties, the Court may orderthat the cause or matter, or any question or issue of fact arising therein shallbe tried before any other Court or the Registrar.
[S 31/00]
Trial before and inquiry by Registrar. (0.36, r.2).
2. The Court may, with the consent of the parties to any cause ormatter, order that the cause or matter, or any question or issue of fact arisingtherein, be tried before any other Court or the Registrar.
[S 31/00]
ORDER 37
ASSESSMENT OF DAMAGES
Assessment of damages by Registrar. (0.37, r.1).
1. (1) Where judgment is given for damages to be assessed and noprovision is made by the judgment as to how they are to be assessed, the damagesshall, subject to the provisions of this Order, be assessed by the Registrar,and the party entitled to the benefit of the judgment may, after obtaining thenecessary appointment from the Registrar and, at least 7 days before the date ofthe appointment, serving notice of the appointment on the party against whom thejudgment is given, proceed accordingly.
(2) Nowithstanding anything in Order 62, rule 10, a notice under this rulemust be served on the party against whom the judgment is given.
(3) The attendance of witnesses and the production of documents before the Registrar in proceeding under this Order may be compelled by writ ofsubpoena, and the provisions of Order 35 shall, with the necessary adaptations,apply in relation to those proceedings as they apply in relation to proceedingsat a trial.
Certificate of amount of damages. (0.37, r.2).
2. Where in pursuance of this Order or otherwise damages are assessedby the Registrar, he shall certify the amount of the damages.
Default judgment against some but not all defendants. (0.37,r.3).
3. Where any such judgment as is mentioned in rule 1 is given indefault of appearance or in default of defence, and the action proceeds againstother defendants, the damages under the judgment shall be assessed at the trialunless the Court otherwise orders.
Power to order Assessment by Registrar or at trial. (0.37,r.4).
4. The Court may, in the case of any such judgment as is mentioned inrule 1, order either —
(a) that the assessment of the damages shall be made by theRegistrar; or
(b) that the action shall proceed to trial before a Judge asrespects the damages,
and where the Court orders that the action shall proceed to trial, Order 25,rules 2 to 7, shall, with the omission of so much of rule 7(1) as requires theparties to serve a notice specifying the orders and directions which they desireand with any other necessary modifications, apply as if the application to theCourt in pursuance of which the Court makes the order, were a summons fordirections under Order 25.
Assessment of value. (0.37, r.5).
5. The foregoing provisions of this Order shall apply in relation to ajudgment for the value of goods to be assessed, with or without damages to beassessed, as they apply to a judgment for damages to be assessed, and referencesin those provisions to the assessment of damages shall be construedaccordingly.
Assessment of damages to time of assessment. (0.37, r.6).
6. Where damages are to be assessed (whether under this Order orotherwise) in respect of any continuing cause of action, they shall be assesseddown to the time of the assessment.
Application of rules 7 to 10. (0.37, r.7). [S 8/99]
7. (1) This rule and rules 8 to 10 shall apply to actions for damagesfor personal injuries.
(2) In the following rules of this Order, “award of provisionaldamages” means an award of damages for personal injuries under which—
(a) damages are assessed on the assumption that a contingency willnot happen;
and
(b) the injured person is entitled to apply for further damages ata future date if the contingency happens.
Provisional damages. (0.37 r.8). [S 8/99]
8. (1) The Court may, on such terms as it thinks just and subject tothe provisions of this rule, make an award of provisional damages if theplaintiff has pleaded a claim for provisional damages.
(2) An order for an award of provisional damages shall specify thecontingency in respect of which an application may be made at a future date, andshall also, unless the Court otherwise determines, specify the period withinsuch application may be made.
(3) The Court may, on the application of the plaintiff made within theperiod, if any, specified in paragraph (2), by order extend that period if itthinks it just to do so, and the plaintiff may make more than one suchapplication.
(4) An order for an award of provisional damages may be made in respect ofmore than one contingency and may in respect of each contingency specify adifferent period within which an application may be made at a future date.
(5) Orders 13 and 19 shall not apply in relation to an action in which theplaintiff claims provisional damages.
Offer to submit. (0.37, r.9). [S 8/99]
9. (1) Where an application is made for an award of provisional damages, any defendant may at any time (whether or not he makes apayment into Court or makes an offer to settle) make a written offer to theplaintiff —
(a) to tender a sum of money (which may include an amount to bespecified, in respect of interest) in satisfaction of the plaintiff’sclaim for damages assessed on the assumption that the injured person will not develop the contingency and identifying the contingency in question;and
(b) to agree to the making of an award of provisional damages.
(2) Any offer made under paragraph (1) shall not be brought to the attentionof the Court until after the Court has determined the claim for an award ofprovisional damages.
(3) Where an offer is made under paragraph (1), the plaintiff may, within 21days after receipt of the offer, give written notice to the defendant of hisacceptance of the offer and shall on such acceptance make an application to theCourt for an order in accordance with the provisions of rule 8(2).
Application for further damages. (0.37, r.10). [S 8/99]
10. (1) This rule shall apply where the plaintiff, pursuant to anaward of provisional damages, claims further damages.
(2) No application for further damages may be made after the expiration ofthe period, if any, specified under rule 8(2), or of such period as extendedunder rule 8(3).
(3) The plaintiff shall give not less than 3 months’ written notice tothe defendant of his intention to apply for further damages and, if thedefendant is to the plaintiff’s knowledge insured in respect of theplaintiff’s claim, to the insurers.
ORDER 38
EVIDENCE
PART I
GENERAL EVIDENCE
[S 77/00]
General rule: Witnesses to be examined orally. (0.38, r.1).
1. Subject to the provisions of these Rules and of the Evidence Act(Chapter 108), and of any other written law relating to evidence, any factrequired to be proved at the trial of any action begun by writ by the evidenceof witnesses shall be proved by the examination of the witnesses orally and inopen court.
Evidence by affidavit. (0.38, r.2).
2. (1) Without prejudice to the generality of rule 1, and unlessotherwise provided by any written law or by these Rules, at the trial of anaction commenced by writ, evidence in chief of a witness shall be given by wayof affidavit. Unless the Court otherwise orders or the parties to the actionotherwise agree, such a witness shall attend trial for cross-examination and, in default of his attendance, his affidavit shall not bereceived in evidence except with the leave of the Court.
(2) In any cause or matter begun by originating summons, originating motionor petition, and on any application made by summons or motion, evidence shall begiven by affidavit unless in the case of any such cause, matter or applicationany provision of these Rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order theattendance for cross-examination of the person making any such affidavit, andwhere, after such an order has been made, the person in question does notattend, his affidavit shall not be used as evidence without the leave of theCourt.
(3) Unless the Court otherwise orders, no deponent to an affidavit may atthe trial or hearing of any cause or matter give evidence in chief, the substance of which is not contained in his affidavit except in relationto matters which have arisen after the filing of the affidavit.
(4) Notwithstanding paragraphs (1), (2) or (3), the Court may, if it thinksjust, order that evidence of a party or any witness or any part of such evidencebe given orally at the trial or hearing of any cause or matter.
(5) Nothing in this rule shall make admissible evidence which if givenorally would be inadmissible.
[S 41/92; S 31/00]
Exchange of witness statements. (0.38, r.2A). [S 7/99]
2A. (1) The powers of the Court under this rule shall be exercisedfor the purpose of disposing fairly and expeditiously of the cause or matterbefore it, and saving costs, having regard to all the circumstances of the case,including (but not limited to) —
(a) the extent to which the facts are in dispute or have beenadmitted;
(b) the extent to which the issues of fact are defined by thepleadings; and
(c) the extent to which information has been or is likely to beprovided by further and better particulars, answers to interrogatories orotherwise.
(2) At the summons for directions in an action commenced by writ the Courtshall direct every party to serve on the other parties, within 14 weeks (or suchother period as the Court may specify) of the hearing of the summons and on suchterms as the Court may specify, written statements of the oral evidence whichthe party intends to adduce on any issues of fact to be decided at thetrial.
The Court may give a direction to any party under this paragraph at any otherstage of such an action and at any stage of any other cause or matter.
Order 3, rule 4(3) shall not apply to any period specified by the Court underthis paragraph.
(3) Directions under paragraph (2) or (17) may make different provision withregard to different issues of fact or different witnesses.
(4) Statements served under this rule shall —
(a) be dated and, except for good reason (which should be specifiedby letter accompanying the statement), be signed by the intended witness andshall include a statement by him that the contents are true to the best of hisknowledge and belief;
(b) sufficiently identify any documents referred to therein;and
(c) where they are to be served by more than one party, be exchanged simultaneously.
(5) Where a party is unable to obtain a written statement from an intendedwitness in accordance with paragraph (4) (a) , the Court may direct theparty wishing to adduce that witness’s evidence to provide the other partywith the name of the witness and (unless the Court otherwise orders) a statementof the nature of the evidence intended to be adduced.
(6) Subject to paragraph (9), where the party serving a statement under thisrule does not call the witness to whose evidence it relates, no other party mayput the statement in evidence at the trial.
(7) Subject to paragraph (9), where the party serving the statement doescall such a witness at the trial —
(a) the Court may, on such terms as it thinks fit, direct that thestatement served, or part of it, shall stand as the evidence in chief of thewitness or part of such evidence;
(b) the party may not without the consent of the other parties orthe leave of the Court adduce evidence from that witness the substance of whichis not included in the statement served, except —
(i) where the Court’s directions under paragraph (2) or (17) specifythat statements should be exchanged in relation to only some issues of fact, inrelation to any other issues;
(ii) in relation to new matters which have arisen since the statement wasserved on the other party;
(c) whether or not the statement or any part of it referred to duringthe evidence in chief of the witness, any party may put the statement or anypart of it in cross- examination of that witness.
(8) Nothing in this rule shall make admissible evidence which is otherwise inadmissible.
(9) Where a party fails to comply with a direction for the exchange ofwitness statements he shall not be entitled to adduce evidence to which thedirection related without the leave of the Court.
(10) Where a party serves a witness statement under this rule, no otherperson may make use of that statement for any purpose other than the purpose ofthe proceedings in which it was served —
(a) unless and to the extent that the party serving it gives hisconsent in writing or the Court gives leave; or
(b) unless and to the extent that it has been put in evidence(whether pursuant to a direction under paragraph (7) (a) orotherwise).
(11) Subject to paragraph (13), the Judge shall, if any person so requestsduring the course of the trial, certify as open to inspection any witnessstatement which was ordered to stand as evidence in chief under paragraph(7) (a) .
(12) A request under paragraph (11) may be made orally or in writing.
(13) The Judge may refuse to give a direction under paragraph (11) inrelation to a witness statement, or may exclude from such a direction any words or passages in a statement, if he considers that inspectionshould not be available —
(a) in the interests of justice or national security;
(b) because of the nature of any expert medical evidence in thestatement; or
(c) for any other sufficient reason.
(14) Where a Judge certifies under paragraph (11) that a witness statementas open to inspection, he shall —
(a) prepare a certificate which shall be attached to a copy(“the certified copy”)
of that witness statement; and
(b) make the certified copy available for inspection.
(15) Subject to any conditions which the Court may by special or generaldirection impose, any person may inspect and (subject to payment of theprescribed fee) take a copy of the certified copy of a witness statement fromthe time when the certificate is given until the end of 7 days after theconclusion of the trial.
(16) In this rule —
(a) any reference in paragraphs (11) to (15) to a witness statementshall, in relation to a witness statement of which only part has been ordered tostand as evidence in chief under paragraph (7) (a) , be construed as areference to that part;
(b) any reference to inspecting or copying the certified copy of a witness statement shall be construed as including a reference toinspecting or copying a copy of that certified copy.
(17) The Court shall have power to vary or override any of the provisionsof this rule (except paragraphs (1) to (8) and (11) to (16)) and to give such alternativedirections as it thinks fit.
Evidence of particular facts. (0.38, r.3).
3. (1) Without prejudice to rule 2, the Court may, at or before thetrial of any action, order that evidence of any particular fact shall be givenat the trial in such manner as may be specified by the order.
(2) The power conferred by paragraph (1) extends in particular to orderingthat evidence of any particular fact may be given at the trial —
(a) by statement on oath of information or belief; or
(b) by the production of documents or entries in books; or
(c) by copies of documents or entries in books; or
(d) in the case of a fact which is or was a matter of commonknowledge either generally or in a particular place, by the production of aspecified newspaper which contains a statement of that fact.
Limitation of expert evidence. (0.38, r.4).
4. The Court may, at or before the trial of any action, order that thenumber of medical or other expert witnesses who may be called at the trial shallbe limited as specified by the order.
Limitation of plans etc. in evidence. (0.38, r.5).
5. Unless, at or before the trial, the Court for special reasonsotherwise orders, no plan, photograph or model shall be receivable in evidenceat the trial of an action unless at least 10 days before the commencement of thetrial the parties, other than the party producing it, have been given anopportunity to inspect it and to agree to the admission thereof without furtherproof.
Expert evidence in action arising out of accident. (0.38, r.6).
6. (1) In an action arising out of an accident on land due to acollision or apprehended collision, unless at or before the trial the Courtotherwise orders, the oral expert evidence of an engineer sought to be called onaccount of his skill and knowledge as respects motor vehicles shall not bereceivable in evidence at the trial unless a copy of a report from himcontaining the substance of his evidence has been made available to all partiesfor inspection before the hearing of the summons for directions and an ordermade on the summons for directions or an application thereunder authorises theadmission of the evidence.
(2) The references in this rule to the summons for directions includereferences to any summons or application to which, under any of these Rules,Order 25, rules 2 to 7, are to apply, whether with or without modifications.
Revocation or variation of orders under rules 2 to 6. (0.38,r.7).
7. Any order under rules 2 to 6 (including an order made on appeal)may, on sufficient cause being shown, be revoked or varied by a subsequent orderof the Court made at or before the trial.
Application to trials of issues, references etc. (0.38, r.8).
8. The foregoing rules of this Order shall apply to trials of issuesor questions of fact or law, references, inquiries and assessments of damages asthey apply to the trial of actions.
Depositions; when receivable in evidence at trial. (0.38, r.9).
9. (1) No deposition taken in any cause or matter shall be receivedin evidence at the trial of the cause or matter unless —
(a) the deposition.was taken in pursuance of an Order under Order39, rule l;
and
(b) either the party against whom the evidence is offered consentsor it is proved to the satisfaction of the Court that the deponent is dead, orbeyond the jurisdiction of the Court or unable from sickness or other infirmityto attend the trial.
(2) A party intending to use any deposition in evidence at the trial of acause or matter must, a reasonable time before the trial, give notice of hisintention to do so to the other party.
(3) A deposition purporting to be signed by the person before whom it wastaken shall be received in evidence without proof of the signature being thesignature of that person.
Court documents admissible or receivable in evidence. (0.38,r.10).
10. (1) Office copies of writs, records, pleadings and documentsfiled in the Registry shall be admissible in evidence in any cause or matter andbetween all parties to the same extent as the original would be admissible.
(2) Without prejudice to the provisions of any written law, every document purporting to be sealed with the seal of the High Court shall bereceived in evidence without further proof, and any document purporting to be sosealed and to be a copy of a document filed in, or issued out of, the High Courtshall be deemed to be an office copy of that document without further proofunless the contrary is shown.
Evidence of consent of new trustee to act. (0.38, r.11).
11. A document purporting to contain the written consent of a personto act as trustee and to bear his signature verified by some other person shallbe evidence of such consent.
Evidence at trial may be used in subsequent proceedings. (0.38,r.12).
12. Any evidence taken at the trial of any cause or matter may be usedin any subsequent proceedings in that cause or matter.
Order to produce document at proceedings other than trial. (0.38,r.13).
13. (1) At any stage in a cause or matter the Court may order anyperson to attend any proceedings in the cause or matter and produce anydocument, to be specified or described in the order, the production of whichappears to the Court to be necessary for the purpose of that proceeding.
(2) No person shall be compelled by an order under paragraph (1) to produceany document at a proceeding in a cause or matter which he could not becompelled to produce at the trial of that cause or matter.
Form and issue of writ of subpoena. (0.38, r.14).
14. (1) A writ of subpoena must be in Form 67, Form 68 or Form 69whichever is appropriate.
(2) Issue of a writ of subpoena takes place upon its being sealed by anofficer of the Registry.
(3) Before a writ of subpoena is issued a praecipe in Form 70 for the issueof the writ must be filed in the Registry; and the praecipe must contain thename and address of the party issuing the writ, if he is acting in person, or the name of firm andbusiness address of that party’s solicitor.
More than one name may be included in one writ of subpoena ad testificandum .
(0.38, r.15).
15. The names of two or more persons may be included in one writ ofsubpoena ad testificandum .
Writ of subpoena duces tecum . (0.38, r.16).
16. (1) A writ of subpoena duces tecum must contain the nameof one person only.
(2) Any person served with a writ of subpoena duces tecum shallsufficiently comply if he causes the document to be produced without attendingpersonally.
Amendment of writ of subpoena. (0.38, r.17).
17. Where there is a mistake in any person’s name or address ina writ of subpoena, then if the writ has not been served, the party by whom thewrit was issued may have the writ re- sealed in correct form by filing a secondpraecipe under rule 14(3) indorsed with the words “Amended and re-sealed”.
Service of writ of subpoena. (0.38, r.18).
18. (1) Unless the Court otherwise orders, a writ of subpoena must beserved personally and the service shall not be valid unless effected within 12weeks after the date of issue of the writ.
(2) A writ of subpoena shall not be served on any person outside thejurisdiction.
Duration of writ of subpoena. (0.38, r.19).
19. A writ of subpoena continues to have effect until the conclusionof the trial at which the attendance of the witness is required.
Court records. (0.38 r.20).
20. (1) An officer of the High Court or of any Subordinate Courtshall not be required by a writ of subpoena duces tecum to produce therecords of the Court.
(2) If the original of any record of a Court or of any document filed insuch court is for any special reason required, a request for production thereofmay, on the application of the party requiring the same, be addressed by theRegistrar to that Court.
(3) No mark shall be placed upon any record or document produced under thisrule.
Attendance of prisoner as witness or party. (0.38, r.21).
21. (1) An application for an order under section 32 of the PrisonsAct (Chapter 51) for the production before the Court of a person confined inprison may be made ex parte by summons supported by an affidavit in Form71.
(2) Unless the Court otherwise orders, the costs of conveyance of thewitness in safe custody to and from the Court must be paid in the first instanceby the party on whose application the order was issued and shall be costs in thecause.
(3) An order for the production of such person must be in Form 72.
Tender of expenses. (0.38, r.22).
22. A witness shall not be compelled to attend on a writ of subpoenaunless a reasonable sum to cover his expenses of going to, remaining at, andreturning from, Court is extended to him.
Affidavit of service of writ of subpoena. (0.38 r.23).
23. An affidavit filed for the purpose of proving the service of awrit of subpoena must state when, where, how and by whom the service waseffected.
PART II
HEARSAY EVIDENCE
Interpretation. (0.38, r.24). [S 77/00]
24. (1) In this Part, the “Act” means Chapter XII of theEvidence Act (Chapter 108), and any expressions used in this Part and in the Actshall have the same meaning in this Part as they have in the Act.
(2) In this Act —
“hearsay evidence” means evidence consisting of hearsay withinthe meaning of section 169(2) of the Act;
“hearsay notice” means a notice under section 170 of the Act.
(3) This Part applies in relation to the trial or hearing of an issue orquestion arising in a cause or matter and to a reference, inquiry or assessmentof damages, as it applies to the trial or hearing of a cause or matter.
Hearsay notices. (0.38, r.25). [S 77/00]
25. (1) A hearsay notice must —
(a) state that it is a hearsay notice;
(b) identify the hearsay evidence;
(c) identify the person who made the statement which is to be given in evidence;
(d) state why that person will (or may) not be called to give oralevidence; and
(e) if the hearsay evidence is contained in a witness statement, referto the part of the witness statement where it is set out.
(2) A single hearsay notice may deal with the hearsay evidence of more thanone witness.
(3) The rquirement to give a hearsay notice does not apply to —
(a) evidence which is authorised to be given by or in an affidavit;or
(b) a statement which a party to a probate action desires to givein evidence and which is alleged to have been made by the person whose estate isthe subject of the action.
(4) Subject to paragraph (5), a party who desires to give in evidence at thetrial or hearing of a cause or matter; hearsay evidence, shall —
(a) in the case of a cause or matter which is required to be setdown for trial or hearing or adjourned into Court, within 28 days after it isset down or so adjourned or within such other period as the Court may specify;and
(b) in any other case, within 28 days after the date on which anappointment for the first hearing of the cause or matter is obtained or withinsuch other period as the Court may specify,
serve a hearsay notice on every party to the cause or matter.
(5) Where witness statements are served under this Order, any hearsay noticeserved under this rule shall be served at the same time as the witnessstatements.
Cross examination on hearsay evidence. (0.38, r.26). [S77/00]
26. (1) Where a party tenders as hearsay evidence a statement made bya person but does not proposed to call the person who made the statement to giveevidence, the Court may, on application, allow another party to call and cross-examine the person who made the statement on its contents.
(2) An application under paragraph (1) shall be made on notice to all otherparties not later than 28 days after service of the hearsay notice.
(3) Where the Court allows another party to call and caross-examine theperson who made the statement, it may give such dierctions as it thinks fit tosecure the attendance of that person and as to the procedure to be followed.
Credibility. (0.38, r.27). [S 77/00]
27. (1) if —
(a) a party tenders as hearsay evidence a statement made by aperson but does not call the person who made the statement to give oralevidence; and
(b) another party wishes to attack the credibility of the personwho made the statement,
that other party shall notify the party tendering the hearsay evidence of hisintention.
(2) A notice under paragraph (1) shall be given not later than 28 days afterservice of the hearsay notice.
Jurisdiction. (0.38, r.28). [S 77/00]
28. The jurisdiction of the Court under rules 24 to 27 may beexercised in Chambers.
PART III
EXPERT EVIDENCE
Interpretation. (0.38, r.29). [S 77/00]
29. In this Part, a reference to a summons for directions includes areference to any summons or application to which any rules 2 to 7, of Order 25applies.
Restrictions on expert evidence. (0.38, r.30). [S 77/00]
30. (1) Except with the leave of the Court or where all partiesagree, no expert evidence may be adduced at the trial or hearing of any cause ormatter unless the party seeking to adduce the evidence —
(a) has applied to the Court to determine whether a directionshould be given under rule 31 or 34 (whichever is appropriate) and has compliedwith any direction given on the application; or
(b) has complied with authomatic directions taking effect underOrder 25, rule 8(1) (b) .
(2) Nothing in paragraph (1) shall apply to evidence which is permitted tobe given by affidavit or shall affect the enforcement under any other provisionof these Rules (except Order 45, rule 5) of a direction given under thisPart.
Direction that report be disclosed. (0.38, r.31). [S77/00]
31. (1) Subject to paragraph (2), where in any cause or matter anapplication is made under rule 30(1) in respect of oral expert evidence, then,unless the Court considers that there are special reasons for not doing so, itshall direct that the substance of the evidence be disclosed in the form of awritten report or reports to such other parties and within such period as theCourt may specify.
(2) Nothing in paragraph (1) shall require a party to disclose a furthermedical report if the proposes to rely at the trial on the report providedpursuant to Order 18, rule 11(1A) or
(1B) but, where a party claiming damages for personal injuries discloses afurther report, that report shall be accompanied by a statement of the specialdamages claimed and, in this paragraph, “a statement of the specialdamages claimed” has the same meaning as in Order 18, rule 11(1C).
Meeting of experts. (0.38, r.32). [S 77/00]
32. In any cause or matter the Court may, if it thinks fit, directthat there be a meeting “without prejudice” of such experts within such periods before orafter the disclosure of their reports as the Court may specify, for the purposeof identifying those parts of their evidence which are in issue. Where such ameeting takes place the experts may prepare a joint statement indicating thoseparts of their evidence on which they are, and those on which they are not, inagreement.
Disclosure of part of expert evidence. (0.38, r.33). [S77/00]
33. Where the Court considers that any circumstances rendering itundesirable to give a direction under rule 31 relate to part only of theevidence sought to be adduced, the Court may, if it thinks fit, directdisclosure of the remainder.
Expert evidence contained in statement. (0.38, r.34). [S77/00]
34. Where an application is made under rule 30 in respect of expertevidence contained in a statement and the applicant alleges that the maker ofthe statement cannot or should not be called as a witness, the Court may directthat the provisions of rule 24 to 27 shall apply with such modifications as theCourt thinks fit.
Expert report disclosed by another party. (0.38, r.35). [S77/00]
35. A party to any cause or matter may put in evidence any expertreport disclosed to him by any other party in accordance with this Part.
Time for putting expert report in evidence. (0.38, r.36). [S77/00]
36. Where a party to any cause or matter calls as a witness the makerof a report which has been disclosed in accordance with a direction given underrule 31, the report may be put in evidence at the commencement of itsmarker’s examination in chief or at such other time as the Court maydirect.
Revocation and variation of directions. (0.38, r.37). [S77/00]
37. Any direction given under this Part may on sufficient cause beingshown be revoked or varied by a subsequent direction given at or before thetrial of the cause or matter.
ORDER 39
EVIDENCE BY DEPOSITION: EXAMINERS OF THE COURT
Power to order depositions to be taken. (0.39, r.1).
1. (1) The Court may, in any cause or matter where it appears necessary for the purposes of justice, make an order in Form 73 forthe examination on oath before a Judge or the Registrar or some other person, atany place, of any person.
(2) An order under paragraph (1) may be made on such terms (including, in particular, terms as to the giving of discovery before theexamination takes place) as the Court thinks fit.
Where person to be examined is out of the jurisdiction. (0.39,r.2).
2. (1) Where the person in relation to whom an order under rule 1 isrequired is out of the jurisdiction, an application may be made —
(a) for an order in Form 74 under that rule for the issue of aletter of request to the judicial authorities of the country in which thatperson is to take, or cause to be taken, the evidence of that person; or
(b) if the government of that country allows a person in thatcountry to be examined before a person appointed by the Court, for an order inForm 75 under that rule appointing a special examiner to take the evidence ofthat person in that country.
(2) An application may be made for the appointment as special examiner of aBrunei Darussalam consul in the country in which the evidence is to be taken or hisdeputy —
(a) if there subsists with respect to that country a CivilProcedure Convention providing for the taking of the evidence of any person inthat country for the assistance of proceedings in the High Court; or
(b) with the consent of the Minister.
Order for issue of letter of request. (0.39, r.3).
3. (1) Where an order is made under rule l for the issue of a letterof request to the judicial authorities of a country to take, or cause to betaken, the evidence of any person in that country the following provision ofthis rule shall apply.
(2) The party obtaining the order must prepare the letter of request andlodge it in the Registry, and the letter must be in Form 76 with such variations as the ordermay require.
(3) If the evidence of the person to be examined is to be obtained by meansof written questions, there must be lodged with the letter of request a copy of the interrogatories and cross-interrogatories to be put to him onexamination.
(4) Unless the official language or one of the official languages of thecountry in which the examination is to be taken is English, each document lodgedunder paragraph (2) or (3) must be accompanied by a translation of the documentin the official language of that country or, if there is more than one officiallanguage of that country, in any one of those languages which is appropriate tothe place in that country where the examination is to be taken.
(5) Every translation lodged under paragraph (4) must be certified by theperson making it to be a correct translation; and the certificate must contain astatement of that person’s full name, of his address and of hisqualifications for making the translation.
(6) The party obtaining the order must, when he lodges in the Registry the documents mentioned in paragraphs (2) to (5) also file in theRegistry an undertaking in Form 77 signed by him or his solicitor to beresponsible personally for all expenses incurred by the Minister in respect ofthe letter of request and, on receiving due notification of the amount of thoseexpenses, to pay that amount to the office of the said Minister and to produce areceipt for the payment to the proper officer of the Registry.
Examination not on oath. (0.39, r.3A). [S 7/99]
3A. Notwithstanding the provisions of rule 1, where the person to beexamined is out of the jurisdiction that person may be examined on oath or affirmation or otherwise in accordance with the procedure of the countryin which the examination is to take place.
Enforcing attendance of witness at examination. (0.39, r.4).
4. Where an order has been made under rule 1 —
(a) for the examination of any person before the Registrar or someother person (in this rule and rules 5 to 14 referred to as “the examiner”;or
(b) for the cross-examination before the examiner of any person whohas made an affidavit which is to be used in any cause or matter,
the attendance of that person before the examiner and the production by him of any document at the examination may be enforced by writof subpoena in like manner as the attendance of a witness and the production bya witness of a document at a trial may be enforced.
Refusal of witness to attend, be sworn etc. (0.39, r.5).
5. (1) If any person, having been duly summoned by writ of subpoenato attend before the examiner, refuses or fails to attend or refuses tobe sworn for the purpose of the examination or to answer any lawfulquestion or produce any document therein, a certificate of his refusal orfailure, signed by the examiner, must be filed in the Registry, and upon thefiling of the certificate the party by whom the attendance of that person wasrequired may apply to the Court for an order requiring that person to attend, orto be sworn or to answer any question or produce any document, as the case maybe.
(2) An application for an order under this rule may be made ex parte .
(3) If the Court makes an order under this rule it may order the personagainst whom the order is made to pay any costs occasioned by his refusal orfailure.
(4) A person who wilfully disobeys any order made against him underparagraph (1)
is guilty of contempt of Court.
Appointment of time and place for examination. (0.39, r.6).
6. (1) The examiner must give the party on whose application the order for examination was made a notice appointing the place and time atwhich, subject to any application by the parties, the examination shall betaken, and such time shall, having regard to the convenience of the persons tobe examined and all the circumstances of the case, be as soon as practicableafter the making of the order.
(2) The party to whom a notice under paragraph (1) is given must onreceiving it, forthwith give notice of the appointment to all the otherparties.
Examiner to have certain documents. (0.39, r.7).
7. The party on whose application the order for examination before theexaminer was made must furnish the examiner with copies of such of the documentsin the cause or matter as are necessary to inform the examiner of the questionsat issue in the cause or matter.
Conduct of examination. (0.39, r.8).
8. (1) Subject to any directions contained in the order forexamination —
(a) any person ordered to be examined before the examiner may becross- examined and re-examined; and
(b) the examination, cross-examination and re-examination ofpersons before the examiner shall be conducted in like manner as at the trial ofa cause or matter.
(2) The examiner may put any question to any person examined before him asto the meaning of any answer made by that person or as to any matter arising inthe cause of the examination.
(3) The examiner may, if necessary, adjourn the examination from time totime.
Examination of additional witnesses. (0.39, r.9).
9. The examiner may, with the written consent of all the parties tothe cause or matter, take the examination of any person in addition to thosenamed or provided for in the order for examination, and must annex such consentto the original deposition of that person.
Objection to questions. (0.39, r.10).
10. (1) If any person being examined before the examiner objects to answer any questions put to him, or if objection is taken to anysuch question, that question, the ground for objection and the answer to anysuch question to which objection is taken must be set out in the deposition ofthat person or in a statement annexed thereto.
(2) The validity of the ground for objecting to answer any such question orfor objecting to any such question shall be decided by the Court and not by theexaminer, but the examiner must state to the parties his opinion thereon, andthe statement of his opinion must be set out in the deposition or in a statementannexed thereto.
(3) If the Court decides against the person taking the objection it mayorder him to pay the costs occasioned by his objection.
Taking of depositions. (0.39, r.11).
11. (1) The deposition of any person examined before the examinermust be taken down by the examiner or a shorthand writer or some other person inthe presence of the examiner but, subject to paragraph (2) and rule 10(1) thedeposition need not set out every question and answer so long as it contains asnearly as may be the statement of the person examined.
(2) The examiner may direct the exact words of any particular question andthe answer thereto to be set out in the deposition if that question and answerappear to him to have special importance.
(3) The deposition of any person shall be read to him, and he shall be askedto sign it, in the presence of such of the parties as may attend, but theparties may agree in writing to dispense with the foregoing provision. If aperson refuses to sign a deposition when asked under this paragraph to do so,the examiner must sign the deposition.
(4) The original deposition of any person, authenticated by the signature ofthe examiner before whom it was taken, must be sent by the examiner to theRegistry and shall be filed therein.
Time taken by examination to be indorsed on depositions. (0.39,r.12).
12. Before sending any deposition to the Registry, the examiner mustindorse on the deposition a statement signed by him of the time occupied intaking the examination and the fees to be paid in respect thereof.
Special report by examiner. (0.39, r.13).
13. The examiner may make a special report to the Court with regard toany examination taken before him and with regard to the absence or conduct ofany person thereat, and the Court may direct such proceedings to be taken, ormake such order, on the report as it thinks fit.
Order for payment of examiner’s fees. (0.39, r.14).
14. (1) If the fees and expenses due to an examiner are not paid hemay report that fact to the Court, and the Court may make an order against theparty on whose application the order for examination was made to pay theexaminer the fees and expenses due to him in respect of the examination.
(2) An order under this rule shall not prejudice any determination on thetaxation of costs or otherwise as to the party by whom the costs of theexamination are ultimately to be borne.
Perpetuation of testimony. (0.39, r.15).
15. (1) Witnesses shall not be examined to perpetuate testimonyunless an action has been begun for the purpose.
(2) Any person who would under the circumstances alleged by him to existbecome entitled, upon the happening of any future event, to any honour, title,dignity or office, or to any estate or interest in any real or personalproperty, the right or claim to which cannot be brought to trial by him before the happening of such event, may begin an action to perpetuateany testimony which may be material for establishing such right or claim.
(3) No action to perpetuate the testimony of witnesses shall be set down fortrial.
ORDER 40
COURT EXPERT
Appointment of expert to report on certain question. (0.40, r.1).
1. (1) In any cause or matter in which any question for an expertwitness arises the Court may at any time, on the application of any party,appoint an independent expert or, if more than one such question arises, two ormore such experts, to inquire and report upon any question of fact or opinionnot involving questions of law or construction.
An expert appointed under this paragraph is referred to in this Order as a“court expert”.
(2) Any court expert in a cause or matter shall, if possible, be a personagreed between the parties and, falling agreement, shall be nominated by theCourt.
(3) The question to be submitted to the court expert and the instructions(if any)
given to him shall, falling agreement between the parties, be settled by thecourt.
(4) In this rule “expert”, in relation to any question arisingin a cause or matter, means any person who has such knowledge or experience ofor in connection with that question that his opinion on it would be admissiblein evidence.
Report of court expert. (0.40, r.2).
2. (1) The court expert must send his report to the Court, togetherwith such number of copies thereof as the Court may direct, and the Registrarmust send copies of the report to the parties or their solicitors.
(2) The Court may direct the court expert to make a further or supplementalreport.
(3) Any part of a court expert’s report which is not accepted by allthe parties to the cause or matter in which it is made shall be treated asinformation furnished to the Court and be given such weight as the Court thinksfit.
Experiments and tests. (0.40, r.3).
3. If the court expert is of opinion that an experiment or test of anykind (other than one of a trifling character) is necessary to enable him to makea satisfactory report he shall inform the parties or their solicitors and shall,if possible, make an arrangement with them as to the expenses involved, theperson to attend and other relevant matters; and if the parties are unable toagree on any of those matters it shall he settled by the Court.
Cross-examination of court expert. (0.40 r.4).
4. Any party may, within 14 days after receiving a copy of the courtexpert’s report, apply to the Court for leave to cross-examine the experton his report, and on that application the Court shall make an order for thecross-examination of the expert by all the parties either —
(a) at the trial; or
(b) before an examiner at such time and place as may be specifiedin the order.
Remuneration of court expert. (0.40, r.5).
5. (1) The remuneration of the court expert shall be fixed by theCourt and shall include a fee for his report and a proper sum for each dayduring which he is required to be present either in Court or before anexaminer.
(2) Without prejudice to any order providing for payment of the courtexpert’s remuneration as part of the costs of the cause or matter, theparties shall be jointly and severally liable to pay the amount fixed by theCourt for his remuneration, but where the appointment of a court expert isopposed the Court may, as a condition of making the appointment, require the party applying for the appointment to give suchsecurity for the remuneration of the expert as the Court think fit.
Calling of expert witnesses. (0.40, r.6).
6. Where a court expert is appointed in a cause or matter, any partymay, on giving to the other parties a reasonable time before the trial notice ofhis intention to do so, call one expert witness to give evidence on the questionreported on by the court expert but no party may call more than one such witnesswithout the leave of the Court, and the Court shall not grant leave unless itconsiders the circumstances of the case to be exceptional.
ORDER 41
AFFIDAVITS
Form of affidavit. (0.41, r.1).
1. (1) Subject to paragraphs (2) and (3) every affidavit sworn in acause or matter must be entitled in that cause or matter.
(2) Where a cause or matter is entitled in more than one matter, it shall besufficient to state the first matter followed by the words “and othermatters”, and where a cause or matter is entitled in a matter or mattersand between parties, that part of the title which consists of the matter ormatters may be omitted.
(3) Where there are more plaintiffs than one, it shall be sufficient tostate the full name of the first followed by the words “and others”, and similarly with respect to defendants.
(4) Every affidavit must be expressed in the first person and must state theplace of residence of the deponent and his occupation or, if he has none, hisdescription, and if he is, or is employed by, a party to the cause or matter inwhich the affidavit is sworn, the affidavit must state that fact.
(5) Every affidavit must be divided into paragraphs numbered consecutively,each paragraph being as far as possible confined to a distinct portion of thesubject.
(6) Dates, sums and other numbers must be expressed in an affidavit infigures and not in words.
(7) Every affidavit must be signed by the deponent and the jurat must becompleted and signed by the person before whom it is sworn.
(8) A jurat must be in one of the forms in Form 78.
Affidavit by two or more deponents. (0.41, r.2).
2. (1) Where an affidavit is made by two or more deponents, the namesof the persons making the affidavit must be inserted in the jurat except that,if the affidavit is sworn by both or all the deponents at one time before thesame person, it shall be sufficient to state that it was sworn by both (or all)of the “abovenamed” deponents.
(2) When the oath is administered to deponents in different languages, thereshall be a separate jurat for those sworn in each language.
Affidavit by illiterate or blind person. (0.41, r.3).
3. Where it appears to the person administering the oath that thedeponent is illiterate or blind, he must certify in the jurat that —
(a) the affidavit was read in his presence to the deponent;
(b) the deponent seemed perfectly to understand it; and
(c) the deponent made his signature or mark in his presence,
and the affidavit shall not be used in evidence without such a certificateunless the Court is otherwise satisfied that it was read to and appeared to beperfectly understood by the deponent.
Use of defective affidavit. (0.41, r.4).
4. An affidavit may, with the leave of the Court, be filed or used in evidence notwithstanding any irregularity in the form thereof.
Contents of affidavit. (0.41, r.5).
5. (1) Subject to Order 14, rules 2(2) and 4(2), to paragraph (2) ofthis rule and to any order made under Order 38, rule 3, an affidavit may containonly such facts as the deponent is able of his own knowledge to prove.
(2) An affidavit sworn for the purpose of being used in interlocutoryproceedings may contain statements of information or belief with the sources andgrounds thereof.
Scandalous etc. matter in affidavits. (0.41, r.6).
6. The Court may order to be struck out of any affidavit any matterwhich is scandalous, irrelevant or otherwise oppressive.
Alterations in affidavits. (0.41, r.7).
7. (1) An affidavit which has in the jurat or body thereof anyinterlineation, erasure or other alteration shall not be filed or used in anyproceeding without the leave of the Court unless the person before whom theaffidavit was sworn has initialled the alteration and, in the case of an erasure, has re-written in the margin of the affidavit anywords or figures written on the erasure and has signed or initialled them.
(2) No alteration shall be made in any affidavit after it has been filed,but, before an affidavit is filed alterations may be made therein and theaffidavit must be re-sworn with a further jurat commencing with the word“re-sworn”, added.
Affidavit not to be sworn before solicitor of party etc. (0.41,r.8).
8. No affidavit shall be sufficient if sworn before the solicitor ofthe party on whose behalf the affidavit is to be used or before any member ofthe firm of that solicitor.
Filing of affidavits. (0.41, r.9).
9. (1) Except as otherwise provided by these Rules, every affidavitmust be filed in the Registry.
(2) Every affidavit must be indorsed with a note showing on whose behalf itis filed and the dates of swearing and filing, and an affidavit which is not soindorsed may not be filed or used without the leave of the Court.
Use of original affidavit or office copy. (0.41, r.10).
10. (1) Subject to paragraph (2) an original affidavit may be used inproceedings with the leave of the Court, notwithstanding that it has not beenfiled in accordance with rule 9.
(2) An original affidavit may not be used in any proceedings unless it haspreviously been stamped with the appropriate fee.
(3) Where an original affidavit is used then, unless the party whoseaffidavit it is undertakes to file it, he must immediately after it is used fileit with the proper officer in the Registry.
(4) Where an affidavit has been filed, an office copy thereof may be used inany proceedings.
Document to be used in conjunction with affidavit to be exhibited to it. (0.41, r.11).
11. (1) Any document to be used in conjunction with an affidavit mustbe exhibited and a copy thereof annexed to the affidavit.
(2) Any exhibit to an affidavit must be identified by a certificate of theperson before whom the affidavit is sworn.
The certificate must be entitled in the same manner as the affidavit and rule1(1), (2) and
(3) shall apply accordingly.
Affidavit taken outside Brunei Darussalam admissible without proof of sealetc. (0.41, r.12).
12. A document purporting to have affixed or impressed thereon orsubscribed thereto the seal or signature of a court, judge, notary public orperson having authority to administer oaths in a Commonwealth country and in thecase of any other country the seal or signature of a consular officer of aCommonwealth country in testimony of an affidavit being taken before it or himshall be admitted in evidence without proof of the seal or signature being theseal or signature of that court, judge, notary public or person.
ORDER 42
JUDGMENTS AND ORDERS
Delivery of judgment. (0.42, r.1).
1. (1) Subject to paragraph (2) every judgment after the hearing of acause or matter shall be delivered in open Court or in Chambers, either on thcconclusion of the hearing or on a subsequent day of which notice shall be givento the parties.
[S 35/92]
(2) Notwithstanding paragraph (1), a Judge who has tried any proceedings maygive judgment, and his reasons therefor, in writing at a later date, by sendinga copy thereof to all parties to the proceeding.
[S 35/92; S 8/99]
Written judgment to be filed. (0.42, r.2).
2. Whenever the Court delivers a written judgment, the original or acopy thereof, signed by the Judge must be filed.
Judgment of absent Judge. (0.42, r.3).
3. When a Judge who has tried any proceedings is absent from BruneiDarussalam or is unable through death, illness or other cause to pronouncejudgment, the judgment written by him may be read by any other Judge or by theRegistrar.
Entry of judgment in Cause Book. (0.42, r.4).
4. The proper officer in the Registry must enter in the cause book aminute of every judgment or final order given or made by the Court.
Form of judgment etc. (0.42, r.5).
5. (1) If, in the case of any judgment, a form thereof is prescribedin Form 79 the judgment must be in that form.
(2) The party entering any judgment shall be entitled to have recited therein a statement of the manner in which the writ or otheroriginating process by which the cause or matter in question was begun wasserved.
(3) An order must be marked with the name of the Judge or the Registrar bywhom it was made and must be sealed.
Judgment etc. requiring act to be done: Time for doing it. (0.42,r.6).
6. (1) Subject to paragraph (2), a judgment or order which requires aperson to do an act must specify the time after service of the judgment ororder, or some other time, within which the act is to be done.
(2) Where the act which any person is required by any judgment or order todo is to pay money to some other person, give possession of any immovableproperty or deliver any movable property, a time within which the act is to bedone need not be specified in the judgment or order by virtue of paragraph (1),but the foregoing provision shall not affect the power of the Court to specifysuch a time and to adjudge or order accordingly.
Date from which judgment or order takes effect. (0.42, r.7).
7. (1) A judgment or order of the Court takes effect from the day ofits date.
(2) Such a judgment or order shall be dated as of the day on which it ispronounced, given or made, unless the Court orders it to be dated as of someother earlier or later day, in which case it shall be dated as of that otherday.
Preparation of judgment or order. (0.42, r.8).
8. (1) Where the party in whose favour a judgment or order is given or made is represented by a solicitor, a copy of the draft shall besubmitted for approval to the solicitor (if any) of the other party who shall within 2 days of the receipt thereof,or within such further time as may in any case be allowed by the Registrar,return such copy with his signed consent or any required amendments thereto.
(2) When the solicitor omits to return the copy of the draft within the time prescribed, he shall be deemed to have consented to the termsthereof.
(3) In any case where the solicitors concerned are unable to agree upon thedraft, any one of them may obtain an appointment before the Registrar, of whichnotice shall be given to the other, to settle the terms of the judgment ororder.
(4) Every judgment or order shall be settled by the Registrar but in thecase of a judgment or order made by a Judge, any party may require the matter indispute to be referred to the Judge for his determination.
(5) Where the other party has no solicitor, the draft shall be submitted to the Registrar.
Orders required to be drawn up. (0.42, r.9).
9. (1) Subject to paragraph (2), every order of the Court shall bedrawn up unless the Court otherwise directs.
(2) An order —
(a) which —
(i) extends the period within which a person is required orauthorised by these Rules, or by any judgment, order or direction, to do anyact; or
(ii) grants leave for the doing of any of the acts mentioned inparagraph (3); and
(b) which neither imposes any special terms nor includes anyspecial directions other than a direction as to costs,
need not be drawn up unless the Court otherwise directs.
(3) The acts referred to in paragraph (2) (a) (ii) are —
(a) the issue of any writ, other than a writ of summons notice ofwhich is required for service out of the jurisdiction;
(b) the amendment of a writ of summons or other originating processor a pleading;
(c) the filing of any document;
(d) any act to be done by an officer of the Court other than asolicitor.
Drawing up and entry of judgments and orders. (0.42, r.10).
10. (1) Where a judgment given in a cause or matter is presented forentry in accordance with this rule at the Registry, it shall be entered by anofficer of the Registry in the book kept fro the purpose.
(2) The party seeking to have such a judgment entered must drawn up thejudgment and present it to the proper officer of the Registry for entry.
(3) On entering any such a judgment the proper officer shall file thejudgment and return a duplicate thereof to the party who presented it forentry.
(4) Every order required to be drawn up must be drawn up by the party inwhose favour the order has been made and if that party fails to draw up theorder within 7 days after it is made any other party affected by the order maydraw it up.
(5) The order referred to in paragraph (4) must, when drawn up, be producedat the Registry, together with a copy thereof, and when passed by the properofficer the order, sealed with the seal of the High Court, shall be returned tothe party producing it and the copy shall be lodged in the Registry.
Duplicates of judgments and orders. (0.42, r.11).
11. (1) Not less than one clear day after a judgment or order hasbeen filed a duplicate thereof shall be supplied on payment of the prescribedfee out of the Registry to any party in the proceedings.
(2) The duplicate of a judgment or order may be a carbon copy of theoriginal except that if the Registrar so directs, the duplicate of everyjudgment or order of such class as he directs, shall be a photographic copy or acopy produced by type lithography or other similar process.
(3) Before a duplicate of a judgment or order is issued it must be sealedand there must be noted thereon the number of the judgment, the date of entryand the amount of any stamp on the original.
(4) Where by any of these Rules or any order of the Court the originaljudgment or order is required to be produced or served it shall be sufficient toproduce or serve the duplicate.
(5) A further duplicate of a judgment or order may, on payment of theprescribed fee, be issued if the Registrar is satisfied that the duplicate hasbeen lost and that the applicant for a further duplicate is entitled to it.
(6) A judgment or order shall not be amended except on production of theduplicate thereof last issued, and if the judgment or order is amended theduplicate so issued shall be similarly amended, and the amendment sealed, underthe direction of the Registrar.
Interest on judgment debts. (0.42, r.12).
12. Except when it has been otherwise agreed between the parties,every judgment debt shall carry interest at the rate of 6 per centum per annumor at such other rate as the Chief Justice may from time to time direct, suchinterest to be calculated from the date of judgment until the judgment issatisfied.
[S 8/99]
Interest on debts and damages. (0.42, r.13). [S 28/96]
13. (1) In any proceedings before the Court for the recovery of anydebt or damages, the Court may, if it thinks fit, order that there shall beincluded in the sum for which judgment is given interest at such rate as itthinks fit on the whole or any part of the debt or damages for thc whole or anypart of the period between the date when the cause of action arose and the dateof the judgment.
(2) Nothing in paragraph (1) shall —
(a) authorise the awarding of interest upon interest;
(b) apply in relation to any debt upon which interest is payable asof right;
whether by virtue of any agreement or otherwise; or
(c) affect the damages recoverable for the dishonour of a bill ofexchange.
(3) In relation to a judgment given in respect of damages for personalinjuries (as defined in section 20(3) of the Emergency (Fatal Accident andPersonal Injuries) Order,
1991) or in respect of a person’s death, which exceed $10,000,paragraph (1) shall have effect —
(a) with the substitution of “shall” for “may, ifit thinks fit”; and
(b) with the addition of, “unless the court is satisfied thatthere are special reason to the contrary”, immediately after“given”.
(4) Interest may be awarded under paragraph (1) in thc case of any sum paidbefore judgment, only to the date of the payment.
(5) Interest awarded under paragraph (1) may be calculated at differentrates in respect of different periods.
ORDER 43
ACCOUNTS AND INQUIRIES
Summary order for account. (0.43, r.1).
1. (1) Where a writ is indorsed with a claim for an account or aclaim which necessarily involves taking an account, the plaintiff may, at anytime after the defendant has entered an appearance or after the time limited forappearing, apply for an order under this rule.
(2) An application under this rule must be made by summons and, if the Courtso directs, must be supported by affidavit or other evidence.
(3) On the hearing of the application, the Court may, unless satisfied by the defendant by affidavit or otherwise that there is somepreliminary question to be tried, order that an account be taken and may alsoorder that any amount certified on taking the account to be due to either partybe paid to him within a time specified in the order.
Court may direct taking of accounts etc. (0.43, r.2).
2. (1) The Court may, on an application made by summons at any stage of the proceedings in a cause or matter, direct any necessaryaccounts or inquiries to be taken or made in Form 80.
(2) Every direction for the taking of an account or the making of an inquiryshall be numbered in the judgment or order so that, as far as may be, eachdistinct account and inquiry may be designated by a number.
Directions as to manner of taking account. (0.43, r.3).
3. (1) Where the Court orders an account to be taken it mayby the same or a subsequent order give directions with regard to the mannerin which the account is to be taken or vouched.
(2) Without prejudice to the generality to paragraph (1), the Court maydirect that in taking the account the relevant books of account shall beevidence of the matters contained therein with liberty to the parties interestedto take such objections thereto as they think fit.
Account to be made verified etc. (0.43, r.4).
4. (1) Where an account has been ordered to be taken, the accountingparty must make out his account and, unless the Court otherwise directs, verifyit by an affidavit to which the account must be exhibited.
(2) The items on each side of the account must be numberedconsecutively.
(3) Unless the order for the taking of the account otherwise directs, theaccounting party must lodge the account with the Registry and must at the sametime notify the other parties that he has done so and of the filing of anyaffidavit verifying the account and of any supporting affidavit.
Notice to be given of alleged commissions etc. in account. (0.43,r.5).
5. Any party who seeks to charge an accounting party with an amountbeyond that which he has by his account admitted to have received or who allegesthat any item in his account is erroneous in respect of amount or in any otherrespect must give him notice thereof stating, so far as he is able, the amountsought to be charged, with brief particulars thereof or, as the case may be, thegrounds for alleging that the item is erroneous.
Allowances. (0.43, r.6).
6. In taking any account directed by any judgment or order all justallowances shall be made without any direction to that effect.
Delay in prosecution of accounts etc. (0.43, r.7).
7. (1) If it appears to the Court that there is undue delay in theprosecution of any accounts or inquiries, or in any other proceedings under anyjudgment or order, the Court may require the party having the conduct of theproceedings or any other party to explain the delay and may then make such orderfor staying the proceedings or for expediting them or for the conduct thereofand for costs as the circumstances require.
Distribution of fund before all persons entitled are ascertained. (0.43,r.8).
8. Where some of the persons entitled to share in a fund areascertained, and difficulty or delay has occurred or is likely to occur inascertaining the other persons so entitled, the Court may order or allow immediate payment of their shares to the personsascertained without reserving any part of those shares to meet the subsequentcosts of ascertaining those other persons.
ORDER 44
PROCEEDINGS UNDER JUDGMENTS AND ORDERS ON THE EQUITY SIDE
Application to proceedings under an order. (0.44, r.1).
1. This Order shall, with the necessary modifications, apply inrelation to proceedings under an order as it applies in relation to proceedingsunder a judgment and, accordingly, references therein to a judgment shall beconstrued as including references to an order.
Documents to be filed at registry: Summons to proceed. (0.44,r.2).
2. (1) Where in order to carry out any directions contained in ajudgment given in a cause or matter it is necessary to proceed in Chambers underthe judgment, the party entitled to prosecute the judgment must, within 10 daysafter entry of the judgment, take out a summons to proceed under thejudgment.
(2) If the party entitled to prosecute the judgment fails to comply withparagraph (1), any other party to the cause or matter shall, unless the Courtotherwise directs, become entitled to prosecute the judgment.
(3) The party entitled to prosecute the judgment must take out a summons toproceed under the judgment.
Service of notice of judgment on person not a party. (0.44, r.3).
3. (1) Where in an action for —
(a) the administration of the estate of a deceased person; or
(b) the execution of a trust; or
(c) the sale of any property,
the Court gives a judgment which affects the rights or interests of personsnot parties to the action or directs any account to be taken or inquiry made,the Court may when giving the judgment or at any stage of the proceedingsunder the judgment direct notice of the judgment to be served on anyperson interested in the estate or under the trust or in the property, as thecase may be; and any person duly served with notice of a judgment in accordancewith this rule shall, subject to paragraph (5), be bound by the judgment to thesame extent as he would have been if he had originally be made a party to theaction.
(2) The Court may direct a notice of judgment to be served personally or insuch manner as it may specify on the person required to be served, or if itappears to the Court that it is impracticable for any reason to serve suchnotice on any person it may dispense with service of the notice on thatperson.
Before notice of a judgment is served the notice must be indorsed with amemorandum in Form 81.
(3) Where no appearance has been entered by a person served with notice ofthe judgment the party prosecuting the judgment must file a certificate in theRegistry to that effect.
(4) Where the Court dispenses with service of notice of a judgment on anyperson, it may also order that that person shall be bound by the judgment to thesame extent as if he had been served with notice thereof, and he shall be boundaccordingly, except where the judgment has been obtained by fraud ornon-disclosure of material facts.
(5) A person served with notice of a judgment may, within one month afterservice of the notice on him, and without entering an appearance, apply to theCourt to discharge, vary or add to the judgment.
(6) A person served with notice of a judgment may, after entering anappearance to the notice, attend the proceedings under the judgment.
(7) Order 12, rules 1 to 3, shall apply in relation to the entry ofappearance to a notice of judgment as if the judgment were a writ, and theperson by whom the notice is served were the plaintiff and the person on whom itis served a defendant.
Directions by Court. (0.44, r.4).
4. (1) The Court hearing the summons to proceed shall give directionswith respect to the proceedings to be taken under the judgment and the conductthereof, including, in particular, directions with respect to —
(a) the manner in which any account or enquiry is to beprosecuted;
(b) the evidence to be adduced in support thereof;
(c) the parties required to attend all or any part of the proceedings;and
(d) the time within which each proceeding is to be taken,
and may fix a day or days for the further attendance of the parties.
(2) The Court may revoke or vary any directions given under this rule.
Court may require parties to be represented by same solicitor. (0.44,r.5).
5. Where on the hearing of the summons to proceed or at any stage ofthe proceedings under the judgment it appears to the Court that the interests ofthe parties can be classified, it may require the parties constituting each orany class to be represented by the same solicitor,
and where the parties constituting any class cannot agree on the solicitor torepresent them, the Court may nominate a solicitor to represent the class in theproceedings.
Court may require parties to be represented by different solicitors. (0.44, r.6).
6. Where on the hearing of the summons to proceed or at any stage ofthe proceedings under the judgment it appears to the Court that two ormore of the parties who are represented by the same solicitor ought to beseparately represented, it may require them to be so represented and may adjournthe proceedings until they are.
Leave to attend proceedings etc. (0.44, r.7).
7. Any party to the proceedings under the judgment who has not beendirected to attend may apply to the Court for leave to attend any part of theproceedings at the cost of the estate or other property to which the proceedingsrelate and to have the conduct of that part either in addition to or insubstitution for any other party.
Judgment requiring deed to be settled by Court: Directions. (0.44,r.8).
8. Where the judgment directs any deed or other instrument to besettled by the Judge in Chambers, or to be settled by him if the parties to thedeed fail to agree to it, the Court hearing the summons to proceed under thejudgment shall direct —
(a) that within such period as it may specify the party entitled toprepare a draft of the deed must serve a copy of the draft on every other partywho will be a party to the deed; and
(b) that within 8 days, or such other period, if any, as it mayspecify, after service on any such other party of a copy of the draft that partymust serve on the party by whom the draft was prepared a written statement ofhis objections (if any) to the draft.
Application of rules 10 to 17. (0.44, r.9).
9. Rules 10 to 17 apply —
(a) where in proceedings for the administration under the directionof the Court of the estate of a deceased person the judgment directs any accountof debts or other liabilities of the deceased’s estate to be taken or anyinquiry for next of kin or other unascertained claimants to be made; and
(b) where in proceedings for the execution under the direction ofthe Court of a trust the judgment directs any such inquiry to be made,
and those rules shall, with the necessary modifications, apply wherein any other proceedings the judgment directs any account of debts or otherliabilities to be taken or any inquiry to be made.
Advertisements for creditors and other claimants. (0.44, r.10).
10. (1) On the hearing of the summons to proceed the Court may directthe issue of advertisements for creditors in Form 82 or other claimants in Form83 and in deciding whether to do so shall have regard to any advertismentpreviously issued by the personal representatives or trustees concerned.
(2) Every such advertisement shall be prepared by the party prosecuting the judgment, and —
(a) in the case of an advertisement for creditors, shall be signedby that party’s solicitor or, if he has no solicitor, by the Registrar;and
(b) in the case of an advertisement for other claimants, shall besubmitted to the Registrar and if approved by the Registrar shall be signed by him.
(3) The Court shall fix the time within which, and the person to whom, anyclaimant is to send his name and address and particulars of his claim, and thattime and the name and address of that person shall be stated in theadvertisement.
Failure to claim within specified time. (0.44, r.11).
11. A claimant who fails to send full particulars of his claim to theperson named in any advertisement directed by the Court within the time thereinspecified shall not be entitled to prove his claim except with the leave of theCourt, and in granting leave the Court may impose such terms as to costs andotherwise as it thinks just.
Examination etc. of claims. (0.44, r.12).
12. (1) Where an account of debts or other liabilities of the estateof a deceased person has been directed, such party as the Court may direct must—
(a) examine the claims of persons claiming to be creditors of theestate and determine, so far as he is able, to which of such claims the estateis liable; and
(b) at least 7 clear days before the time appointed foradjudicating on claims, make an affidavit in Form 84 verifying lists of—
(i) claims sent in pursuance of any advertisement;
(ii) claims which have been received by any ofthe personal representatives otherwise than in pursuance of an advertisement;and
(iii) debts of the deceased at the time of his death in respect of which noclaim has been received but which are or may still be due and which have come tothe knowledge of any of the personal representatives.
(2) Where an inquiry for next of kin or other unascertained claimants hasbeen directed, such party as the Court may direct must —
(a) examine the claims and determine, so far as he is able, whichof them are valid claims; and
(b) at least 7 clears days before the time appointed foradjudicating on claims, make an affidavit in Form 85 verifying lists of—
(i) claims sent in pursuance of any advertisement; and
(ii) claims received by any of the personal representatives or trusteesconcerned, otherwise than in pursuance of an advertisement, or whichhave come to his knowledge.
(3) The affidavit required by paragraph (1) or (2) must, as thecircumstances of the case require, specify, in relation to the claims ofcreditors, the claims and debts which in the belief of the deponent areliabilities of the estate of the deceased and ought to be allowed, in whole orin part, and, in relation to the claims of persons other than creditors, theclaims which in the belief of the deponent are valid claims, with, in eithercase, the reasons for such belief.
(4) If the personal representatives or trustees concerned are not theparties directed by the Court to examine claims, they must join with the partydirected to examine them in making the affidavit required by this rule.
Adjudication on claims. (0.44, r.13).
13. (1) The Court adjudicating on the claims —
(a) may allow any such claim after or without proof thereof;
(b) may direct any such claim to be investigated in such manner asit thinks fit;
(c) may require any claimant to attend and prove his claim or tofurnish further particulars or evidence of it.
(2) Where the Court exercises the power conferred by paragraph (1) (c) in relation to any claimant, such party as the Court may direct must serveon that claimant a notice requiring him —
(a) to file an affidavit in support of his claim within such time,not being less than 7 days after service of the notice, as may be specified inthe notice and to attend before the Court for adjudication on the claim at suchtime as may be so specified; or
(b) to produce to the Court at such time as may be so specifiedsuch documents in support of his claim as may be so specified or described.
(3) Where a claimant fails to comply with a notice served on him underparagraph (2) his claim may be disallowed.
(4) A claimant who files an affidavit in compliance with a notice served onhim under paragraph (2) must serve notice of the filing on the party by whom thefirst mentioned notice was served and unless the Court otherwise directs, that party mustproduce an office copy of the affidavit at the adjudication of the claim.
(5) No person claiming to be a creditor need make an affidavit or attend insupport of his claim, except for the purpose of producing any documents which heis required to produce, unless served with a notice under paragraph2 (a) .
(6) If the Court so directs, a person claiming to be a secured creditor mustproduce his security to the Registrar.
(7) In this rule references to a claim include references to part of aclaim.
Adjournment of adjudication. (0.44, r.14).
14. Where on the day appointed for adjudication of claims any claim isnot then disposed of, the adjudication shall be adjourned to a day appointed bythe Court, and the Court may fix the time within which any evidence in supportof or in opposition to the claim is to be filed.
Service of notice of judgment on certain claimants. (0.44, r.15).
15. (1) Where a claimant other than a creditor has established hisclaim, then, unless he is a party to the cause or matter or has previously beenserved with notice of the judgment or the Court otherwise directs, the partyhaving the conduct of the cause or matter must serve notice of the judgment onhim.
(2) A person duly served with notice of a judgment under this rule shall,subject to rule 3(5), as applied by paragraph (4), be bound by the judgment tothe same extent as he would have been if he had originally been made a party tothe action.
(3) Where the Court directs under paragraph (1) that notice of a judgmentshall not be served on a person, it may also order that that person shall bebound by the judgment to the same extent as if he had been served with notice thereof, and he shall be bound accordingly except where thejudgment has been obtained by fraud or non-disclosure of material facts.
(4) Rule 3(5), (6) and (7) shall apply in relation to a person served withnotice of a judgment under this rule as they apply in relation to a personserved with notice of a judgment under that rule.
Notice etc. of claims allowed. (0.44, r.16).
16. (1) Such party as the Court may direct must serve on everycreditor whose claim or any part thereof has been allowed or disallowed and whodid not attend when the claim was disposed of a notice informing him of thatfact.
(2) Such party, if any, as the Court may direct must make out a list of thecreditors’
claims, and a list of any other claims, allowed and file it at theRegistry.
Service of notices. (0.44, r.17).
17. For the purpose of Order 62, rule 6, in its application to theservice of any notice under this Order on a claimant, the proper address of aclaimant shall be the address stated in his claim, or if a solicitor is actingfor him in connection with the claim, the business address of thatsolicitor.
Interest on debts. (0.44, r.18).
18. (1) Where an account of the debts of a deceased person isdirected by any judgment, then, unless the deceased’s estate isinsolventor the Court otherwise orders, interest shall be allowed —
(a) on any such debt as carries interest, at the rate it carries;and
(b) on any other debt, at the rate of 6% per annum from the date of the judgment.
(2) A creditor who has established his debt in proceedings under thejudgment and whose debt does not carry interest shall be entitled to interest onhis debt at the rate of 6% per annum from the date of the judgment out of anyassets which may remain after satisfying the costs of the cause or matter, thedebts which have been established and the interest on such of those debts as bylaw carry interest.
Interest on legacies. (0.44, r.19).
19. Where an account of legacies is directed by any judgment, then,subject to any directions contained in the will or codicil in question and toany order made by the Court, interest be allowed on each legacy at the rate of6% per annum beginning at the expiration of one year after the testator’sdeath.
Determination by judge of question arising before Registrar. (0.44,r.20).
20. (1) Any party may, before the proceedings before the Registrarunder any judgment are concluded, apply to the Judge for the determination ofany question arising in the course of the proceedings.
Unless the Court otherwise directs, a fresh summons shall not be issued forthe purpose of an application under this paragraph.
(2) It shall not be necessary to draw up the order or directions made orgiven by the Judge on the determination of such question, except in the event ofan appeal to the Court of Appeal, but the Registrar shall refer to such order ordirections in his certificate under rule 21.
Registrar’s certificate. (0.44, r.21).
21. (1) The result of proceedings before the Registrar under ajudgment shall be stated in the form of a certificate in Form 86 signed by theRegistrar.
(2) Such certificate shall refer to so much of the judgment, to suchdocuments or parts thereof and to such of the evidence as will make it clearupon what the result stated in the certificate is founded but shall not, unlessthe circumstances of the case render it necessary, set out the judgment or anydocuments, evidence or reasons.
(3) Where the judgment requires the taking of any account, the certificatemust refer to the account verified by filed affidavit and must specify byreference to the numbered items in the account which, if any, of such items havebeen disallowed or varied and the additions, if any, which have been made by wayof surcharge or otherwise.
(4) Where by reason of the alterations made in the account verified by filedaffidavit the Court has directed a fresh account incorporating the alterationsto be made, the reference in paragraph (3) to the account so verified shall beconstrued as a reference to the fresh account.
Settling and filing of Registrar’s certificate. (0.44,r.22).
22. (1) A draft of the Registrar’s certificate shall be drawn up by a party to the proceedings as directed by the Registrar andthe draft shall be settled by the parties before the Registrar on such day asthe Registrar may appoint.
(2) The certificate signed by the Registrar and any account referred totherein shall be filed in the Registry.
Discharge or variation of Registrar’s certificate. (0.44,r.23).
23. (1) Any party to proceedings under a judgment may, not later than—
(a) 8 clear days after the filing of the Registrar’scertificate therein; or
(b) if the certificate is to be acted upon by the Treasury withoutfurther order or is a certificate passing a receiver's account, 2 clear daysafter the filing thereof,
apply by summons for an order of the Judge in person discharging or varyingthe certificate.
A copy of any summons to discharge or vary a certificate which is to be actedupon by the Treasury without further order must be served on the Treasury assoon as practicable after the issue thereof.
(2) Subject to paragraph (3) any such certificate shall, on the expirationof the period specified in relation to it in paragraph (1) become binding on theparties to the proceedings unless discharged or varied by order under paragraph(1).
(3) The Judge in person may, in special circumstances, by order discharge orvary the certificate of the Registrar notwithstanding that the certificate hasbecome binding on the parties.
An application for an order under this paragraph may be by summons.
Further consideration of cause or matter in Chambers. (0.44,r.24).
24. (1) Where a Registrar’s certificate has been filed in anycause or matter, then, if —
(a) the cause or matter in which it was filed is a debentureholders’ action or the judgment to be made in the cause or matter in which it was filed is for the distribution of an insolvent estate orfor the distribution of the estate of a person who died intestate; or
(b) the order on which the certificate was made in Chambers and nodirection has been given that the cause or matter be adjourned for furtherconsideration in Court; or
(c) an order has been made directing that the cause or matter beadjourned for further consideration in Chambers,
a summons for the further consideration of the cause or matter may be issued—
(i) after the expiration of 8 clear days, and before the expiration of 14days, from the filing of the Registrar’s certificate, by the plaintiff orparty having the conduct of the proceedings; or
(ii) after the expiration of the said 14 days, by any party.
(2) There shall be at least 6 days between the service of a summons underthis rule and the day named therein for the further consideration of the causeor matter.
Further consideration of cause or matter in court. (0.44, r.25).
25. (1) Where a Registrar’s certificate has been filed in anycause or matter, then, if —
(a) the judgment on which the certificate was made was given inCourt and the cause or matter is not such as is mentioned in rule24(1) (a) and no direction has been given that it be adjourned for furtherconsideration in Chambers; or
(b) an order has been made directing that the cause or matter beadjourned for further consideration in Court,
the cause or matter may be set down by the Registrar in the cause book for further consideration —
(i) after the expiration of 8 clear days, and before the expiration of 14days, from the filing of the Registrar’s certificate, on the writtenrequest of the plaintiff or party having the conduct of theproceedings; or
(ii) after the expiration of the said 14 days, on the written request ofany party,
upon the production, in either case, of the judgment adjourning the cause ormatter for further consideration, or an office copy thereof, and an office copy of the Registrar’s certificate or a memorandum of the date of filing of the certificate,indorsed on request by the proper office on the judgment or office copythereof.
When a cause or matter is so set down, a copy of the writ or otheroriginating process by which the cause or matter was begun, a copy of thepleadings (if any) and two copies of minutes of the judgment sought must also beleft with the proper officer.
(2) A cause or matter so set down shall not be put into the list for further consideration until after the expiration of 10 days from theday on which it was so set down, and shall be marked in the cause bookaccordingly, and notice of the setting down and of the day marked in the causebook as the day before which the cause or matter is not to be put in the listfor further consideration must be given to the other parties to the cause ormatter at least 6 days before that day.
ORDER 45
ENFORCEMENT OF JUDGMENTS AND ORDERS
Enforcement of judgment etc. for payment of money. (0.45, r.1).
1. (1) Subject to the provisions of these Rules, a judgment or orderfor the payment of money, not being a judgment or order for the payment of moneyinto Court, may be enforced by one or more of the following means, that is tosay —
(a) writ of seizure and sale;
(b) garnishee proceedings;
(c) a charging order;
(d) the appointment of a receiver;
(e) in a case in which rule 5 applies, an order of committal.
(2) Subject to the provisions of these Rules, a judgment or order for thepayment of money into Court may be enforced by one or more of the followingmeans, that is to say —
(a) the appointment of a receiver;
(b) in a case in which rule 5 applies, an order of committal.
(3) Paragraphs (1) and (2) are without prejudice to any other remedyavailable to enforce such a judgment or order as is therein mentioned or to thewritten law relating to bankruptcy or the winding up of companies.
Judgment etc. for payment of money to person resident outside the scheduled territories. (0.45, r.2).
2. (1) Where any person is directed by any judgment, order or awardto pay any money to or for the credit of a person who is resident outside thescheduled territories, he must,
unless the Controller has given permission for the payment under the ExchangeControl Act (Chapter 141), unconditionally or upon conditions which have been compliedwith, pay the money into Court.
(2) Payment into Court under paragraph (1) shall, to the extent of theamount paid in, be a good discharge to the person making the payment, and nosteps may be taken to enforce the judgment, order or award to the extent of thatamount.
(3) Notice of a payment into Court under this rule must be given to theplaintiff or his solicitor and to any other person required by the judgment,order or award to be given notice of such payment.
Enforcement of judgment for possession of immovable property. (0.45,r.3).
3. (1) Subject to the provisions of these Rules, a judgment or orderfor the giving of possession of immovable property may be enforced by one ormore of the following means, that is to say —
(a) writ of possession;
(b) in a case in which rule 5 applies, an order of committal.
(2) A writ of possession to enforce a judgment or order for the giving ofpossession of any immovable property shall not be issued without the leave ofthe Court except where the judgment or order was given or made in a chargeaction to which Order 79 applies.
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(3) Such leave shall not be granted unless it is shown that every person inactual possession of the whole or any part of the immovable property hasreceived such notice of the proceedings as appears to the Court sufficient toenable him to apply to the Court for any relief to which he may be entitled.
(4) A writ of possession may include provision for enforcing the payment ofany money adjudged or ordered to be paid by the judgment or order which is to beenforced by the writ.
Enforcement of judgment for delivery of movable property. (0.45,r.4).
4. (1) Subject to the provisions of these Rules, a judgment or orderfor the delivery of any movable property which does not give a person againstwhom the judgment is given or order made the alternative of paying the assessedvalue of the property may be enforced by one or more of the following means,that is to say —
(a) writ of delivery to recover the property without alter-nativeprovision for recovery of the assessed value thereof (here-after in this rulereferred to as “writ of specific delivery”);
(b) in a case in which rule 5 applies, an order of committal.
(2) Subject to the provisions of these Rules, a judgment or order for thedelivery of any movable property or payment of their assessed value may beenforced by one or more of the following means, that is to say —
(a) writ of delivery to recover the property or its assessedvalue;
(b) with the leave of the Court, writ of specific delivery;
(c) in a case in which rule 5 applies, an order of committal.
(3) A writ of specific delivery, a writ of delivery to recover any movableproperty or their assessed value, may include provision for enforcing the payment of any money adjudged or ordered to be paid by the judgment ororder which is to be enforced by the writ.
(4) A judgment or order for the payment of the assessed value of any movableproperty may be enforced by the same means as to any other judgment or order forthe payment of money.
Enforcement of judgment to do or abstain from doing an act. (0.45,r.5).
5. (1 ) Where —
(a) a person required by a judgment or order to do an act within atime specified in the judgment or order refuses or neglects to do it within thattime or, as the case may be, within that time as extended or abridged underOrder 3, rule 5; or
(b) a person disobeys a judgment or order requiring him to abstainfrom doing an act,
then, subject to the provisions of these Rules, the judgment or order may beenforced by one or more of the following means, that is to say —
(i) with the leave of the Court, an order of committal;
(ii) where that person is a body corporate, with the leave of the Court,an order of committal against any director or other officer of the body.
(2) Where a judgment or order requires a person to do an act within a timetherein specified and an order is subsequently made under rule 6 requiring theact to be done within some other time, references in paragraph (1) of this ruleto a judgment or order shall be construed as references to the order made underrule 6.
(3) Where under any judgment or order requiring the delivery of any movable property the person liable to execution has the alternative ofpaying the assessed value of the property, the judgment or order shall not beenforceable by order of committal under paragraph (1), but the Court may, on theapplication of the person entitled to enforce the judgment or order, make anorder requiring the first mentioned person to deliver the property to theapplicant within a time specified in the order, and that order may be soenforced.
Judgment etc. requiring act to be done: Order fixing time for doing it. (0.45, r.6).
6. (1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, theCourt shall, without prejudice to Order 3, rule 5, have power to make an orderrequiring the act to be done within another time, being such time after serviceof that order, or such other time as may be specified therein.
(2) Where, notwithstanding Order 42, rule 6(1) or by reason of Order 42,rule 6(2) a judgment or order requiring a person to do an act does not specify atime within which the act is to be done the Court shall have power subsequentlyto make an order requiring the act to be done within such time after service ofthat order, or such other time, as may be specified therein.
(3) An application for an order under this rule must be made by summons andthe summons must, notwithstanding anything in Order 62, rule 10, be served onthe person required to do the act in question.
Service of copy of judgment etc. prerequisite to enforcement under rule 5.(0.45, r.7).
7. (l) In this rule references to an order shall be construed asincluding references to a judgment.
(2) Subject to Order 24, rule 16(3) Order 26, rule 7(3), and paragraphs (6)and (7) of this rule, an order shall not be enforced under rule 5 unless—
(a) a copy of the order has been served personally on the personrequired to do or abstain from doing the act in question; and
(b) in the case of an order requiring a person to do an act, thecopy has been so served before the expiration of the time within which he wasrequired to do the act.
(3) Subject as aforesaid, an order requiring a body corporate to do orabstain from doing an act shall not be enforced as mentioned in rule 5(1)(ii)unless —
(a) a copy of the order has also been served personally on theofficer against whose property leave is sought to issue a writ of seizure andsale or against whom an order of committal is sought; and
(b) in the case of an order requiring the body corporate to do anact, the copy has been so served before the expiration of the time within whichthe body was required to do the act.
(4) There must be indorsed on the copy of an order served under this rule anotice in Form 87 informing the person on whom the copy is served —
(a) in the case of service under paragraph (2), if he neglects toobey the order within the time specified therein, or, if the order is to abstainfrom doing an act, that if he disobeys the order, he is liable to process ofexecution to compel him to obey it; and
(b) in the case of service under paragraph (3), that if the body corporate neglects to obey the order within the time so specified,or, if the order is to abstain from doing an act, that if the body corporatedisobeys the order, he is liable to process of execution to compel the body toobey it.
(5) With the copy of an order required to be served under this rule, beingan order requiring a person to do an act, there must also be served a copy ofany order made under Order 3, rule 5, extending or abridging the time for doingthe act and, where the first mentioned order was made under rule 5(3) or 6 ofthis Order, a copy of the previous order requiring the act to be done.
(6) An order requiring a person to abstain from doing an act may be enforcedunder rule 5 notwithstanding that service of a copy of the order has not beeneffected in accordance with this rule if the Court is satisfied that, pendingsuch service, the person against whom or against whose property it is sought toenforce the order has had notice thereof either —
(a) by being present when the order was made; or
(b) by being notified of the terms of the order, whether bytelephone, telegram or otherwise.
(7) Without prejudice to its powers under Order 62, rule 5, the Court maydispense with service of a copy of an order under this rule if it thinks it justto do so.
Court may order act to be done at expense of disobedient party. (0.45,r.8).
8. If an order of mandamus, a mandatory order, an injunction or ajudgment or order for the specific performance of a contract is not compliedwith, then, without prejudice to its powers under the Act and its powers topunish the disobedient party for contempt, the Court may direct that the actrequired to be done may, so far as practicable, be done by the party by whom theorder or judgment was obtained or some other person appointed by the Court, atthe cost of the disobedient party, and upon the act being done the expensesincurred may be ascertained in such manner as the Court may direct and executionmay issue against the disobedient party for the amount so ascertained and forcosts.
Execution by or against person not being a party. (0.45, r.9).
9. (1) Any person, not being a party to a cause or matter, whoobtains any order or in whose favour any order is made, shall be entitled toenforce obedience to the order by the same process as if he were a party.
(2) Any person, not being a party to a cause or matter against whomobedience to any judgment or order may be enforced, shall be liable to the sameprocess for enforcing obedience to the judgment or order as if he were aparty.
Conditional judgment: Waiver. (0.45, r.10).
10. A party entitled under any judgment or order to any relief subjectto the fulfilment of any condition who fails to fulfil that condition is deemedto have abandoned the benefit of the judgment or order and, unless the Court otherwise directs, any otherperson interested may take any proceedings which either are warranted by thejudgment or order or might have taken if the judgment or order had not beengiven or made.
Matters occurring after judgment: Stay of execution etc. (0.45,r.11).
11. Without prejudice to Order 27, rule 1, a party against whom ajudgment has been given or an order made may apply to the Court for a stay ofexecution of the judgment or order or other relief on the ground of matterswhich have occurred since the date of the judgment or order, and the Court mayby order grant such relief, and on such terms, as it thinks fit.
Forms of writs. (0.45, r.12).
12. (1) A writ of seizure and sale must be in Form 88.
(2) A writ of delivery must be in Form 89.
(3) A writ of possession must be in Form 90.
Enforcement of judgments and orders for recovery of money etc. (0.45,r.13).
13. (1) Rule (1) of this Order, with the omission of sub-paragraph (e) thereof, and Orders 46 to 51 shall apply in relation to a judgment or order for the recovery ofmoney as they apply in relation to a judgment or order for the payment ofmoney.
(2) Rule 3 of this Order, with the omission of paragraph (1) (b) thereof, and Order 47, rule 2(2), shall apply in relation to a judgment or orderfor the recovery of possession of immovable property as they apply in relationto a judgment or order for the giving or delivery of possession of immovableproperty.
(3) Rule 4 of this Order, with the omission of paragraphs l (b) and(2) (c) thereof, and Order 47, rule 2(2) shall apply in relation to ajudgment or order that a person do have a return of any movable property and toa judgment or order that a person do have a return of any movable property or dorecover the assessed value thereof as they apply in relation to a judgment ororder for the delivery of any movable property and a judgment or order for thedelivery of any movable property or payment of the assessed value thereofrespectively.
ORDER 46
WRITS OF EXECUTION: GENERAL
Definition. (0.46, r.1).
1. In this Order, unless the context otherwise requires, “writof execution” includes a writ of seizure and sale, a writ of possessionand a writ of delivery.
When leave to issue any writ of execution is necessary. (0.46,r.2).
2. (1) A writ of execution to enforce a judgment or order may notissue without the leave of the Court in the following cases, that is to say—
(a) where six years or more have lapsed since the date of thejudgment or order;
(b) where any change has taken place, whether by death orotherwise, in the parties entitled or liable to execution under the judgment ororder;
(c) where the judgment or order is against the assets of a deceasedperson coming to the hands of his executors or administrators after the date ofthe judgment or order, and it is sought to issue execution against suchassets;
(d) where under the judgment or order any person is entitled torelief subject to the fulfilment of any condition which it is alleged has beenfulfilled;
(e) where any movable property sought to be seized under a writ ofexecution is in the hands of a receiver appointed by the Court.
(2) Paragraph (1) is without prejudice to any written law or rule by virtueof which a person is required to obtain the leave of the Court for the issue ofa writ of execution or to proceed to execution on or otherwise the enforcementof a judgment or order.
(3) Where the Court grants leave, whether under this rule or otherwise, forthe issue of a writ of execution, and the writ is not issued within one yearafter the date of the order granting such leave, the order shall cease to haveeffect, without prejudice, however, to the making of a fresh order.
Application for leave to issue writ. (0.46, r.3).
3. (1) An application for leave to issue a writ of execution may bemade ex parte by summons in Form 91.
(2) Such an application must be supported by an affidavit —
(a) identifying the judgment or order to which the applicationrelates and, if the judgment or order is for the payment of money, stating theamount originally due thereunder and the amount due thereunder at the date ofthe application;
(b) stating, where the case falls within rule 2(1) (a) , thereasons for the delay in enforcing the judgment or order;
(c) stating, where the case falls within rule 2(1) (b) , thechange which has taken place in the parties entitled or liable to executionsince the date of the judgment or order;
(d) stating, where the case falls within rule 2(1) (c) or (d) , that a demand to satisfy the judgment or order was made on theperson liable to satisfy it and that he has refused or failed to do so;
(e) giving such other information as is necessary to satisfy the Courtthat the applicant is entitled to proceed to execution on the judgment or orderin question and that the person against whom it is sought to issue execution is liable to execution on it.
(3) The Court hearing such application may grant leave in accordance withthe application or may order that any issue or question, a decision on which isnecessary to determine the rights of the parties, be tried in any manner inwhich any question of fact or law arising in an action may be tried and, ineither case, may impose such terms as to costs or otherwise as it thinksjust.
Issue of writ of execution. (0.46, r.4).
4. (1) Issue of a writ of execution takes place on its being sealedby an officer of the Registry.
(2) Before such a writ is issued a praecipe in one of the forms in Form 92for its issue must be filed.
(3) The praecipe must be signed by the solicitor of the person entitled toexecution or, if that person is acting in person, by him.
(4) No such writ shall be sealed unless at the time of the tender thereoffor sealing —
(a) the person tendering it produces —
(i) the judgment or order on which the writ is to issue, or an office copythereof;
(ii) where the writ may not issue without the leave of the Court, theorder granting such leave or evidence of the granting of it;
(iii) where rule 5(2) applies, the written permission of the Controllerof Foreign Exchange therein referred to; and
(b) the officer authorised to seal it is satisfied that the period,if any, specified in the judgment or order for the payment of any money or thedoing of any other act has expired.
(5) Every writ of execution shall bear the date of the day on which it isissued.
Writ and praecipe where Exchange Control Act applies. (0.46,r.5).
5. (1) Where any party entitled to enforce a judgment or order forthe payment of money is resident outside the scheduled territories, then, unlessthe Controller has given permission under the Exchange Control Act (Chapter141), for payment of the money to him unconditionally or on conditions whichhave been complied with, any writ of execution to enforce that judgment or ordermust direct the sheriff to pay the proceeds of execution into Court.
Notice of payment into Court in compliance with such a direction must begiven by the sheriff to the party by whom the writ of execution was issued or tohis solicitor.
(2) Where the Controller has given such permission unconditionally or onconditions which have been complied with, the praecipe for the issue of a writof execution to enforce the judgment or order in question must be indorsed withsuch a certificate of that fact.
Duration and renewal of writ of execution. (0.46, r.6).
6. (1) For the purpose of execution, a writ of execution is valid inthe first instance for 12 months beginning with the date of the issue.
(2) Where a writ has not been wholly executed the Court may by order extendthe validity of the writ from time to time for a period of 12 months at any timebeginning with the day on which the order is made, if an application forextension is made to the Court before the day next following that on which thewrit would otherwise expire.
(3) Before a writ the validity of which has been extended under this rule isexecuted the writ must be marked in Form 5 showing the date on which the orderextending its validity was made.
(4) The priority of a writ, the validity of which has been extended underthis rule, shall be determined by reference to the date on which it wasoriginally issued.
(5) The production of a writ of execution, purporting to be sealed asmentioned in paragraph (3), shall be evidence that the validity of that writ hasbeen extended this rule.
Fees, expenses etc. to be levied. (0.46, r.7).
7. In every case of execution the party entitled to execution may levythe commission, fees and expenses of execution over and above the sumrecovered.
Costs of writs. (0.46, r.8).
8. Subject to these Rules, the costs of and incidental to writs ofexecution or distress, whether executed or unexecuted, or unproductive, shall beallowed against the person liable, unless the Court otherwise orders.
Satisfaction by consent. (0.46, r.9).
9. (1) Any person who has satisfied a judgment debt may on filing aconsent of the judgment creditor in Form 93 apply to the Court for satisfactionto be entered in the Cause Book and the Court may order satisfaction to beentered accordingly.
(2) The consent of the judgment creditor must be attested by his solicitoror if he has no solicitor, by a Commissioner of Oaths.
Where consent refused. (0.46, r.10).
10. (1) If a judgment creditor refuses or neglects to give suchconsent when requested, or cannot be found, the judgment debtor may apply to theRegistrar for an order that satisfaction be entered.
(2) The summons must be served on the judgment creditor at least 2 cleardays before the hearing thereof unless the Registrar otherwise orders.
(3) If on such application the Registrar is satisfied that the judgment debthas been satisfied and that the judgment creditor has no reasonable ground forrefusing or neglecting to give such consent, the Registrar may order thatsatisfaction be entered in the cause book and that the judgment creditor pay thecosts of and incidental to the application.
Deposit costs of execution with Sheriff. (0.46, r.11).
11. Before any writ of execution or distress is executed the person atwhose instance the writ was issued (hereinafter called the “executioncreditor”) must, if the sheriff so requests, deposit in the Registry asufficient sum of money to defray the costs of the execution.
Where Sheriff in possesion more than 14 days. (0.46, r.12).
12. Where the sheriff has to remain in possession of movable propertyfor more than 14 days, the execution creditor must before or at the end of thefirst 14 days of the sheriff keeping possession deposit in the Registry, if thesheriff so requests, a further sum of money to provide for the costs ofexecution for the next ensuing 14 days and must continue to make such depositsin advance before or at the end of each successive period of 14 days so long asthe sheriff continues in possession.
Proper officer to give receipt. (0.46, r.13).
13. (1) The proper officer in the Registry must give a receipt foreach sum of money deposited and he shall apply such sums or so much thereof asis necessary for the costs of the execution.
(2) The sheriff must return to the execution creditor any balance of moneyremaining over after the release of the person or the movable property seized,as the case may be, under the writ of execution or distress.
(3) Where the movable property seized under a writ of execution or distressis sold by the sheriff or he receives the amount of the levy without sale, anysums of money deposited by the execution creditor must, so far as the moniescoming to the hands of the sheriff will allow, be refunded to the executioncreditor.
Duties of Sheriff
Time of lodgment to be forthwith indorsed on writ. (0.46, r.14).
14. Whenever any writ of execution or distress is issued, the sheriffmust indorse thereon the day, hour and minute of the receipt of it.
Time of execution. (0.46, r.15).
15. Any writ of execution or distress may be executed between thehours of 9 a.m. and 4
p.m., unless the sheriff otherwise orders.
Notice of seizure and inventory. (0.46, r.16).
16. (1) Where any movable property is seized by the sheriff under awrit of execution or distress, he must give to the execution debtor a notice ofseizure in Form 94, and a copy of the notice must be filed.
(2) Where the sheriff removes from a place any movable property that isseized, he must give to the execution debtor at the time the property is removedor immediately afterwards an inventory of the property so removed.
(3) The notice of seizure under paragraph (1) and notice of removal andinventory under paragraph (2) may be —
(a) handed to the execution debtor personally; or
(b) sent to him by post to his place of residence; or
(c) left at or sent by post addressed to him at the place from whichthe property was seized.
Proper officer to keep records and to prepare statement of accounts. (0.46, r.17).
17. (1) The proper officer receiving any money under any writ ofexecution or distress must give for every sum so received a receipt.
(2) The proper officer must keep a record of all sums of money received byhim under a writ of execution or distress and of the manner in which he hasapplied them, and shall indorse on or annex to the writ a statement thereof.
(3) Subject to these Rules, the proper officer must prepare a statement ofaccount in respect of the monies received by him under a writ of execution ordistress as follows —
(a) first the Court fees and commission;
(b) next the expenses of execution;
(c) next monies due to the execution creditor under rule 13 which havenot been returned to him;
(d) next monies claimed by the landlord, not exceeding 6months’ rent, due under a writ of distress;
(e) next monies available for payment to the execution creditor tosatisfy the judgment or order in respect of which the execution was issued;
(f) next where there is more than one writ of execution in his handsagainst the same defendant, monies available to satisfy the various executioncreditors in the order of the priority of their writs according to the dates ofissue;
(g) next after accounting for the monies - for payment to the execution creditors, show - any balance due to the execution debtor.
(4) If the proceeds of the sale received by the proper officer areinsufficient to cover the fees, commission and expenses of execution, theexecution creditor must pay to the proper officer the amount of the deficiencyand shall be entitled to add such amount to the judgment debt to be eventuallyrecovered from the judgment debtor.
Sheriff to give information if required. (0.46, r.18).
18. (1) On a written application by the execution creditor, or theexecution debtor, or any claimant to movable property seized by him, the sheriffmust within 2 days furnish to such applicant a memorandum stating —
(a) the date on which the writ was delivered to him;
(b) the amount leviable under the writ;
(c) the particulars of property seized;
(d) the place of seizure;
(e) particulars of any claim to such property of which he has receivednotice;
(f) the gross proceeds of sale;
(g) the amount of the fees, commission and expenses; and
(h) the monies paid by him into the Registry and to whosecredit.
(2) The sheriff shall at all times permit the execution creditor, orjudgment debtor, or any claimant to property seized by him to inspect and copyfree of charge any inventory of property seized, sale account, or not of thefees, commission and expenses together with all vouchers in support thereof.
Date of arrest to be indorsed. (0.46, r.19).
19. The sheriff executing an order to arrest shall indorse thereon theday, hour and minute of the arrest.
Sheriff may be required to show cause for neglect of duty. (0.46,r.20).
20. Any person aggrieved by any alleged non-observance by the sheriffof any duty imposed on him by any written law or by these Rules, may apply tothe Court for an order that the sheriff show cause why he should not do thething required, and the sheriff may be required to show cause accordingly.
Payment out. (0.46, r.21).
21. Subject to these Rules and to any other written law, any sum ofmoney paid by the sheriff to the credit of the execution creditor or by thejudgment debtor, under rule 17 shall, subject to any order of Court, be paid to the execution creditor or judgment debtor respectively on hisapplication without an order:
Provided that the sheriff may, in his discretion, require the execution creditor or judgment debtor, as the case may be, to apply to Courtfor an order for payment out.
Sale by Sheriff
Sheriff to sell. (0.46, r.22).
22. Subject to these Rules, the sheriff must sell all property seizedby him under a writ of execution or distress.
Sale by public auction. (0.46, r.23).
23. Unless the sheriff otherwise orders, all sales must be by publicauction between the hours of 9 a.m. and 4 p.rn. and notice in Form 95 of theday, hour and place of any intended sale must be posted on the Notice Board ofthe Registry and as far as practicable at the place of intended sale 7 daysbefore the sale.
Where property exceeds $5,000 sale by licensed auctioneer. (0.46,r.24).
24. (1) Where the value of the property attached or seized isestimated by the sheriff to exceed $5,000, the sale must, unless the sheriffotherwise orders, be conducted by a licensed auctioneer and the sale must bepublicly advertised by the sheriff or auctioneer on and during 2 days nextpreceding the day of sale.
(2) In any other case the sale may be conducted by the sheriff.
Negotiable instruments. (0.46, r.25).
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25. Negotiable instruments may, with the leave of the Court, be soldthrough the agency of such broker and on such terms as the Court shall thinkjust.
Sheriff may execute or indorse documents. (0.46, r.26).
26. Where the execution or indorsement of any document is ordinarilylawfully required to give effect to any sale by the sheriff, the sheriff mayexecute or indorse such document; and the execution or indorsement thereof bythe sheriff shall have the same effect as the execution or indorsement by thejudgment debtor.
Interpretation of terms. (0.46, r.27).
27. In this Order, where a writ of distress has been issued, the term“execution creditor”
shall include a “landlord” and the term “judgmentdebtor” shall include a “tenant”.
ORDER 47
WRITS OF SEIZURE AND SALE
Power to stay execution by writ of seizure and sale. (0.47, r.1).
1. (1) Where a judgment is given or an order made for the payment byany person of money, and the Court is satisfied, on an application made at thetime of the judgment or order, or at any time thereafter, by the judgment debtoror other party liable to execution —
(a) that there are special circumstances which render itinexpedient to enforce the judgment or order; or
(b) that the applicant is unable from any cause to pay themoney,
then notwithstanding anything in rule 2 or 3, the Court may by order stay theexecution of the judgment or order by writ of seizure and sale either absolutelyor for such period and subject to such conditions as the Court thinks fit.
(2) An application under this rule, if not made at the time the judgment isgiven or order made, must be made by summons and may be so made notwithstandingthat the party liable to execution did not enter an appearance in theaction.
(3) An application made by summons must be supported by an affidavit made byor on behalf of the applicant stating the grounds of the application and theevidence necessary to substantiate them and, in particular, where suchapplication is made on the grounds of the applicant’s inability to pay,disclosing his income, the nature and value of any property of his and theamount of any other liabilities of his.
(4) The summons and a copy of the supporting affidavit must, not less than 4clear days before the return day, be served on the party entitled to enforce thejudgment or order.
(5) An order staying execution under this rule may be varied or revoked by a subsequent order.
Separate writs to enforce payment of costs etc. (0.47, r.2).
2. (1) Where only the payment of money, together with costs to betaxed, is adjudged or ordered, then, if when the money becomes payable under thejudgment or order the costs have not been taxed, the party entitled to enforcethat judgment or order may issue a writ of seizure and sale to enforce thejudgment or order and, not less than 8 days after the issue of that writ, he mayissue a second writ to enforce payment of the taxed costs.
(2) A party entitled to enforce a judgment or order for the delivery ofpossession of any property (other than money) may, of he so elects, issue aseparate writ of seizure and sale to enforce payment of any damages or costsawarded to him by that judgment or order.
Where landlord claims arrears of rent of premises where property seized. (0.47, r.3).
3. (1) Where the landlord or any other person entitled to receive the rent of the premises in which any movable property has beenseized by the sheriff has any claim for arrears of rent of those premises, hemay apply to the Registrar, at any time before the sale of such property, for awrit of distress for recovery of such arrears of rent.
(2) Unless a writ of distress is issued for the recovery of such arrears ofrent the property seized by the sheriff shall be deemed not to be liable to beseized under a writ of distress and to be free from all claims in respect ofrent and may be dealt with accordingly and the landlord or other person entitledto receive rent as aforesaid, shall have no claim in respect of the property orto the proceeds of sale or any part thereof.
After seizure dealings with property void. (0.47, r.4).
4. After seizure has been made of the judgment debtor’s movableproperty under a writ of seizure and sale, and during the continuance of theseizure, otherwise than by the leave of the Court, any alienation of the property seized, whether by sale, gift, mortgage or otherwise, shall bevoid against the sheriff and any person on whose behalf the movable property wasseized.
Withdrawal and suspension of writ. (0.47, r.5).
5. (1) Where any execution creditor requests the sheriff to withdrawthe seizure, he shall be deemed to have abandoned the execution, and the sheriffshall mark the writ of seizure and sale as withdrawn by request of the executioncreditor:
Provided that where the request is made in consequence of a claim having beenmade in an interpleader proceedings, the execution shall be deemed to beabandoned in respect only of the property so claimed.
(2) A writ of seizure and sale which has been withdrawn under this ruleshall not be re-issued but the execution creditor may apply by summons supportedby affidavit stating the grounds of the application for a fresh writ of seizureand sale to be issued, and such writ shall take priority according to its dateof issue.
Exemption from execution. (0.47, r.5A). [S 31/00]
5A. The following property shall be exempt from execution —
(a) the necessary wearing apparel, cooking utensils, beds andbedding of the judgment debtor and his wife and children;
(b) the tools used by the judgment debtor in his trade orbusiness;
(c) if the judgment debtor is a farmer, his implements of husbandry,and such cattle, buffaloes and seed grain as may, in the opinion of the Court,be necessary to enable him to earn a living as a farmer;
(d) if the judgment debtor is a fisherman, his fishing gear, nets,traps and bait and such boats as may, in the opinion of the Court, be necessaryto enable him to earn a living as a fisherman.
Immovable property. (0.47, r.6).
6. Where the property to be seized consists of immovable property orany registered interest therein the following provisions shall apply —
(1) Seizure shall be made by an order prohibiting the judgment debtor from transferring, charging or leasing such property or interest. Forthe purpose of this rule “charging” shall include the creation of a lien by deposit of adocument of title.
(2) A copy of the order shall be served on the judgment debtor and one ormore copies, as the case may require, shall be issued to the judgment creditorin order that he may present the same, in compliance with the provisions of anywritten law relating to such land, for registration at the Land Office whereatthe land or interest in land specified in such order is registered.
(3) No prohibitory order issued under this rule shall affect any immovableproperty or registered interest therein and no immovable property or registeredinterest therein shall be deemed to have been seized until such prohibitoryorder shall have been registered as provided by any written law relating to suchland.
(4) Subject to the provisions of sub-rule (5) of this rule any prohibitoryorder shall upon the expiration of 2 years from the date thereof cease to affectthe immovable property or registered interest therein specified in suchorder.
[S 28/96]
(5) Upon the application of any judgment creditor on whose application a prohibitory order has been issued the Court or a Judge, if itor he considers that special circumstances render an extension just may fromtime to time by order extend the period of 2 years referred to in sub-rule (4), for any period not exceeding 2 years,provided that no order made under this rule shall have any force or effectunless it is presented for registration at the Land Office before the expirationof the prohibitory order which such order purports to extend.
[S 28/96]
(6) The provisions of sub-rule (2) shall apply to orders made under sub-rule(5) of this rule.
(7) When a judgment creditor has obtained in any suit or proceeding aprohibitory order, in execution of an order or judgment in such suit or proceeding, affecting any immovable property or registered interesttherein, no further prohibitory order affecting the same property or interestshall be made in the same suit or proceeding in execution of the same order orjudgment on the application of such judgment creditor or of any other personunless the Court or a Judge shall by order otherwise direct, on the ground ofthe existence of special circumstances.
(8) A copy of every order made under this rule shall be sent by the Courtmaking the order to the Land Officer of the District wherein the land affectedis situate or to both as may be necessary.
Sale of immovable property. (0.47, r.7).
7. Sale of immovable property, or any interest therein, shall besubject to the following conditions —
(a) There shall be no sale until the expiration of fourteen days from the registration of the prohibitory order under rule 6(3)of this Order;
(b) The particulars and conditions shall be drawn up by the sheriffor by his solicitor, and shall be submitted for the approval of a Judge. Atleast two clear days’ notice in writing of an appointment to obtain theapproval of the Judge shall be served on the judgment creditor and judgmentdebtor at their addresses for service respectively, unless the Judge shall inany case otherwise order;
(c) The judgment debtor may apply by summons to a Judge forpostponement of the sale in order that he may raise the amount leviable underthe writ by charge or lease, or sale of a portion only, of the immovableproperty seized, or by sale of any other property of the judgment debtor, orotherwise, and the Judge, if satisfied that there is reasonable ground tobelieve that the said amount may be raised in any such manner, may postpone thesale for such period and on such terms as are just;
(d) The judgment creditor may apply to a Judge for the appointment of a receiver of the rents and profits, or a receiver and managerof the immovable property, in lieu of sale thereof, and on such application theJudge may appoint such receiver or receiver and manager, and give all necessarydirections in respect of such rents and profits or immovable property;
(e) Where immovable property or any registered interest therein hasbeen sold in execution of a decree, the decree holder or any person entitled toshare in a rateable distribution of assets or whose interests are affected bythe sale may apply to the Court or a Judge to set aside the sale on the groundof a material irregularity or fraud in publishing or conducting it:
Provided that no sale shall be set aside on the ground of irregularity orfraud unless upon the facts proved the Court or a Judge is satisfied that theapplicant has sustained substantial injury by reason of such irregularity orfraud;
(f) The purchaser at any such sale in execution of a decree may applyto the Court or a Judge to set aside the sale on the ground that the judgmentdebtor had no saleable interest in the property sold;
(g) (i) Where no application is made under paragraph (e) or (f) or where such application is made and disallowed, the Court or aJudge shall make an order confirming the sale, and thereupon the sale shallbecome absolute:
Provided that no such order shall be made until after theexpiration of one month from the date of the sale;
(ii) Where such application is made and allowed, the Court or a Judgeshall make an order setting aside the sale:
Provided that no order shall be made unless notice of theapplication has been given to all persons affected thereby;
(iii) No suit to set aside an order made under this paragraph shall bebrought by any person against whom such order is made;
(h) (i) Where a sale is set aside under paragraph (g) , thepurchaser shall be entitled to an Order for repayment of his purchase-money(with or without interest as the Court or a Judge may direct) against any personto whom it has been paid;
(ii) A copy of any such order shall be issued to the purchaser in orderthat he may present the same for registration under the provisions of anywritten law relating to such land;
(iii) Every such order shall for the purposes of the Stamp Act (Chapter 34) be deemed to be, and shall be stamped by the purchaser as, aconveyance.
ORDER 48
EXAMINATION OF JUDGMENT DEBTOR ETC.
Order for examination of judgment debtor. (0.48, r.1).
1. (1) Where a person has obtained a judgment or order for thepayment by some other person (hereinafter referred to as “the judgmentdebtor”) of money, the Court may, on an application made ex parte by summons supported by affidavit in Form 96 by the person entitled to enforcethe judgment or order, order the judgment debtor, or, if the judgment debtor isa body corporate, an officer thereof, to attend before the Registrar, and beorally examined on the questions —
(a) whether any and, if so, what debts are owing to the judgmentdebtor; and
(b) whether the judgment debtor has any and, if so, what otherproperty or means of satisfying the judgment or order,
and the Court may also order the judgment debtor or officer to produce anybooks or documents in the possession of the judgment debtor relevant to thequestions aforesaid at the time and place appointed for the examination.
(2) An order under this rule must be in Form 97 and must be servedpersonally on the judgment debtor and on any officer of a body corporate ordered to attend for examination.
(3) Any difficulty arising in the course of an examination under this rulebefore the Registrar, including any dispute with respect to the obligation ofthe person being examined to answer any question put to him, may be referred tothe Court and the Court may determine it or give such directions for determiningit as it thinks fit.
Examination of party liable to satisfy the judgment. (0.48, r.2).
2. Where any difficulty arises in or in connection with theenforcement of any judgment or order, other than such a judgment or order as ismentioned in rule 1, the Court may make an order under that rule for theattendance of the party liable to satisfy the judgment or order and for hisexamination on such questions as may be specified in the order, and that ruleshall apply accordingly with the necessary modifications.
Registrar to make record of debtor’s statement. (0.48,r.3).
3. The Registrar conducting the examination shall take down, or causeto be taken down, in writing the statement made by the judgment debtor or other person at the examination, read it to him and ask him to sign it;and if he refuses the Registrar shall sign the statement.
ORDER 49
GARNISHEE PROCEEDINGS
Attachment of debt due to judgment debtor. (0.49, r.1).
1. (1) Where a person (in this Order referred to as “the judgment creditor”) has obtained a judgment or order for thepayment by some other person (in this Order referred to as “the judgmentdebtor”) of money, not being a judgment or order for the payment of moneyinto Court, and any other person within the jurisdiction (in this Order referredto as “the garnishee”) is indebted to the judgment debtor, the Courtmay, subject to the provisions of this Order and of any written law, order thegarnishee to pay the judgment creditor the amount of any debt due or accruingdue to the judgment debtor from the garnishee, or so much thereof as issufficient to satisfy that judgment or order and the costs of the garnisheeproceedings:
Provided that no such order shall be made by the Court in respect of any debtdue or accruing due to the judgment debtor by the Government or any publicofficer in his official capacity unless the consent in writing of the AttorneyGeneral has been first obtained by the judgment creditor.
[S 14/91]
(2) An order in Form 98 under this rule shall in the first instance be anorder to show cause, specifying the time and place for further consideration ofthe matter, and in the meantime attaching such debt as is mentioned in paragraph(1), or so much thereof as may be specified in the order, to answer the judgmentor order mentioned in that paragraph and the costs of the garnisheeproceedings.
Application for order. (0.49, r.2).
2. An application for an order under rule 1 must be made ex parte by summons supported by an affidavit in Form 99 —
(a) identifying the judgment or order to be enforced and statingthe amount remaining unpaid under it at the time of the application; and
(b) stating that to the best of the information or belief of thedeponent the garnishee (naming him) is within the jurisdiction and is indebtedto the judgment debtor and stating the sources of the deponent’sinformation or the grounds for his belief.
Service and effect of order to show cause. (0.49, r.3).
3. (1) An order under rule 1 show cause must, at least 7 days beforethe time appointed thereby for the further consideration of the matter, beserved —
(a) on the garnishee personally; and
(b) unless the Court otherwise directs, on the judgment debtor.
(2) Such an order shall bind in the hands of the garnishee as from theservice of the order on him any debt specified in the order or so much thereofas may be so specified.
No appearance or dispute of liability by garnishee. (0.49, r.4).
4. (1) Where on the further consideration of the matter the garnisheedoes not attend or does not dispute the debt due or claimed to be due from himto the judgment debtor, the Court may, subject to rule 7, make an order absolutein one of the forms in Form 100 under rule 1 against the garnishee.
(2) An order absolute under rule 1 against the garnishee may be enforced inthe same manner as any other order for the payment of money.
Dispute of liability by garnishee. (0.49, r.5).
5. Where on the further consideration of the matter the garnisheedisputes liability to pay the debt due or claimed to be due from him to thejudgment debtor, the Court may summarily determine the question at issue ororder in Form 101 that any question necessary for determining the liability ofthe garnishee be tried in any manner in which any question or issue in an actionmay be tried, without, if it orders trial before the Registrar, the need for anyconsent by the parties.
Claims of third persons. (0.49, r.6).
6. (1) If in garnishee proceedings it is brought to the notice of theCourt that some other person than the judgment debtor is or claims to beentitled to the debt sought to be attached or has or claims to have a charge orlien upon it, the Court may order that person to attend before the Court andstate the nature of the claim with particulars thereof.
(2) After the hearing any person who attends before the Court in compliancewith an order under paragraph (1), the Court may summarily determine the questions at issue between the claimants or make such other order as itthinks just, including an order that any question or issue necessary fordetermining the validity of the claim of such other person as is mentioned inparagraph (1) be tried in such manner as is mentioned in rule 5.
Judgment creditor resident outside scheduled territories. (0.49,r.7).
7. (1) The Court shall not make an order under rule 1 requiring thegarnishee to pay any sum to or for the credit of any judgment creditor residentoutside the scheduled territories unless that creditor produces a certificatethat the Controller has given permission under the Exchange Control Act (Chapter141) for the payment unconditionally or on conditions which have been compliedwith.
(2) If it appears to the Court that payment by the garnishee to the judgmentcreditor will contravene any provision of the Ordinance, it may order thegarnishee to pay into Court the amount due to the judgment creditor and thecosts of the garnishee proceedings after deduction of his own costs, if theCourt so orders.
Discharge of garnishee. (0.49, r.8).
8. Any payment made by a garnishee in compliance with an orderabsolute under this Order, and any execution levied against him in pursuance ofsuch an order, shall be a valid discharge of his liability to the judgmentdebtor to the extent of the amount paid or levied notwithstanding that thegarnishee proceedings are subsequently set aside or the judgment or order fromwhich they arose reversed.
Money in Court. (0.49, r.9).
9. (1) Where money is standing to the credit of the judgment debtorin Court, the judgment creditor shall not be entitled to take garnisheeproceedings in respect of that money but may apply to the Court by summons foran order that the money or so much thereof as is sufficient to satisfy the judgment or order sought to beenforced and the costs of the application be paid to the judgment creditor.
(2) On issuing a summons under this rule the applicant must produce thesummons at the office of the Treasury and leave a copy at that office, and themoney to which the application relates shall not be paid out of Court until after the determination of the application.
If the application is dismissed, the applicant must give notice of that factto the Treasury.
(3) Unless the Court otherwise directs, the summons must be served on thejudgment debtor at least 7 days before the day named therein for the hearing ofit.
(4) Subject to Order 70, rule 23, the Court hearing an application underthis rule may make such order with respect to the money in Court as it thinksjust.
Costs. (0.49, r.10).
10. The costs of any application for an order under rule l or 9, andof any proceedings arising therefrom or incidental thereto, shall, unless theCourt otherwise directs, be retained by the judgment creditor out of the moneyrecovered by him under the order and in priority to the judgment debt.
ORDER 50
CHARGING ORDERS, STOP ORDERS ETC.
(0.50, r.1).
1. (There is no rule 1).
Order imposing charge on securities. (0.50, r.2).
2. (1) The Court may for the purpose of enforcing a judgment or orderfor the payment of an ascertained sum of money to a person by order in Form 104impose on any interest to which the judgment debtor is beneficially entitled insuch of the securities to which this rule applies as may be specified in theorder a charge for securing payment of the amount due under the judgment ororder and interest thereon.
(2) Any such order shall in the first instance be an order to show cause, inForm 105 specifying the time and place for further consideration of the matterand imposing the charge until that time in any event.
(3) The securities to which this rule applies are —
(a) any government stock, and any stock of any company registeredunder any written law, including any such stock standing in the name of theTreasury; and
(b) any dividend of or interest payable on such stock.
(4) In this Order “government stock” means any stock issued bythe Government or any funds of or annuity granted by the Government, and“stock” includes shares, debentures and debenture stock.
Application for order under rule 2. (0.50, r.3).
3. An application for an order under rule 2 must be made ex parte by summons supported by an affidavit —
(a) identifying the judgment or order to be enforced, stating theamount unpaid under it at the date of the application, and showing that theapplicant is entitled to enforce the judgment or order;
(b) specifying the securities on the judgment debtor’sinterest in which it is sought to impose a charge and in whose name theystand;
(c) stating that to the best of the information or belief of thedeponent the judgment debtor is beneficially entitled to an interest in thesecurities in question, describing that interest, and stating the sources of thedeponent’s information or the grounds for his belief.
Service of notice of order to show cause. (0.50, r.4).
4. (1) Unless the Court otherwise directs, a copy of the order underrule 2 to show cause must, at least 7 days before the time appointed thereby forthe further consideration of the matter, be served on the judgment debtor, andif he does not attend on such consideration proof of service must be given.
(2) Notice of the making of the order to show cause, with a copy of thatorder, must as soon as practicable after the making of the order be served—
(a) where the order relates to government stock, on theTreasury;
(b) where the order relates to other stock, on the companyconcerned;
(c) where the order relates to stock standing in the name of theTreasury, on the Treasury.
Effect of order to show cause. (0.50, r.5).
5. (1) No disposition by the judgment debtor of his interest in anysecurities to which an order under rule 2 to show cause relates made after themaking of that order shall, so long as that order remains in force, be valid asagainst the judgment creditor.
(2) Until such order is discharged or made absolute the Treasury or, as thecase may be, a company shall not permit any transfer of any such stock as isspecified in the order, or pay to any person any dividend thereof, or interestpayable thereon, except with the authority of the Court.
(3) If after notice of the making of such order is served on the Treasury ora company the Treasury or company permits any transfer or makes any paymentprohibited by paragraph (2), it shall be liable to pay the judgment creditor thevalue of the stock transferred or, as the case may be, the amount of the paymentmade or, if that value or amount is more than sufficient to satisfy the judgmentor order to which such order relates, so much thereof as is sufficient tosatisfy it.
Making and effect of charging order absolute. (0.50, r.6).
6. (1) On the further consideration of the matter the Court shallunless it appears that there is sufficient cause to the contrary, make the order absolute with or without modifications.
(2) Where on the further consideration of the matter it appears to the Courtthat the order should not be made absolute it shall discharge the order.
(3) A charge imposed by an order under rule 2 made absolute under this ruleshall have the same effect, and the judgment creditor in whose favour it is madeshall, subject to paragraph (4), have the same remedies for enforcing it, as if it were a valid charge effectively made by the judgmentdebtor.
(4) No proceedings to enforce a charge imposed by an order made absoluteunder this rule shall be taken until after the expiration of 6 months from thedate of the order to show cause.
Discharge etc. of charging order. (0.50, r.7).
7. The Court, on the application of the judgment debtor or any otherperson interested in the securities to which an order under rule 2 relates, mayat any time, whether before or after the order is made absolute, discharge orvary the order on such terms (if any) as to costs as it thinks just.
Money in court: Charging order. (0.50, r.8).
8. (1) The Court may for the purpose of enforcing a judgment or orderfor the payment of an ascertained sum of money to a person by order impose onany interest to which the judgment debtor is beneficially entitled to any moneyin Court identified in the order a charge for securing payment of the amount dueunder the judgment or order and interest thereon.
(2) Any such order shall in the first instance be an order to show cause,specifying the time and place for the further consideration of the matter andimposing the charge until that time in any event.
(3) Rules 3 and 4(1) shall, with the necessary modifications, apply inrelation of an application for an order under this rule and to the order as theyapply in relation to an application for an order under rule 2 and to suchorder.
(4) Notice of the making of an order under this rule to show cause, with acopy of that order, must, as soon as practicable after the making of the order,be served on the Treasury.
(5) Rules 5(1), 6(1) and (2) and 7 shall, with the necessary modifications,apply in relation to an order under this rule as they apply in relation to anorder under rule 2.
Registrar etc. may grant injunction ancillary to charging order. (0.50,r.9).
9. The Registrar shall have power —
(a) to appoint a receiver to enforce a charge imposed by an order;or
(b) to grant an injunction if, and only so far as, it is ancillaryor incidental to an order under rule 2 or 8,
and an application for the appointment of a receiver or an injunction underthis rule may be joined with the application for the order under rule 2 or 8 towhich it relates.
Enforcement of charging order by sale. (0.50, r.9A). [S7/99]
9A. (1) Proceedings for the enforcement of a charging order by saleof the property charged must be begun by originating summons.
(2) The provisions of Order 79 shall apply to all such proceedings.
Securities not in Court. Stop notice. (0.50, r.10).
10. (1) Any person claiming to be beneficially entitled to aninterest in any securities to which rule 2 applies, other than securities inCourt, who wishes to be notified of any proposed transfer of payment of thosesecurities may avail himself of the provisions of this rule.
(2) A person claiming to be so entitled must file in the Registry—
(a) an affidavit identifying the securities in question anddescribing his interest therein by reference to the document which it arises;and
(b) a notice in Form 106 signed by the deponent to the affidavit,and annexed to it, addressed to the Treasury or, as the case may be, the companyconcerned,
and must serve an office copy of the affidavit, and a copy of the noticesealed with the seal of the High Court, on the Treasury or that company.
(3) There must be indorsed on the affidavit filed under this rule a noticestating the address to which any such notice as is referred to in rule 11(1) isto be sent and, subject to paragraph (4), that address shall for the purpose ofthat rule be the address for service of the person on whose behalf the affidavitis filed.
(4) A person on whose behalf an affidavit under this rule is filed maychange his address for service for the purpose of rule 11 by serving on theTreasury or, as the case may be, the company concerned, a notice to that effect,and as from the date of service of such a notice the address stated thereinshall for the purpose of that rule be the address for service of thatperson.
Effect of stop notice. (0.50, r.11).
11. (1) Where a notice under rule 10 has been served on the Treasuryor a company, then, so long as the notice is in force, the Treasury or companyshall not register a transfer of any stock or make a payment of any dividend orinterest, being a transfer or payment restrained by the notice, without servingon the person on whose behalf the notice was filed at his address for service anotice informing him of the request for such transfer or payment.
(2) Where the Treasury or a company receive a request for such a transfer or payment as is mentioned in paragraph (1) made by or on behalf ofthe holder of the securities to which the notice under rule 10 relates, theTreasury or company shall not by reason only of that notice refuse to registerthe transfer or make the payment for longer than 8 days after receipt of the request except under the authority of an order ofthe Court.
Amendment of stop notice. (0.50, r.12).
12. If any securities are incorrectly described in a notice filedunder rule 10 the person on whose behalf the notice was filed may file in theRegistry an amended notice and serve on the Treasury or, as the case may be, thecompany concerned a copy of that notice sealed with the seal of the High Court,and where he does so the notice under rule 10 shall be deemed to have beenserved on the Treasury or company on the day on which the copy of the amendednotice was served on it.
Withdrawal etc. of stop notice. (0.50, r.13).
13. (1) The person on whose behalf a notice under rule 10 was filedmay withdraw it by serving a request for its withdrawal on the Treasury or, asthe case may be, the company on whom the notice was served.
(2) Such request must be signed by the person on whose behalf the notice wasfiled and his signature must be witnessed by a practising solicitor.
(3) The Court, on the application of any person claiming to be beneficiallyentitled to an interest in the securities to which a notice under rule 10relates, may by order discharge the notice.
(4) An application for an order under paragraph (3) must be made byoriginating summons, and the summons must be served on the person on whosebehalf the notice under rule 10 was filed.
No appearance need be entered to the summons.
Order prohibiting transfer etc. of securities. (0.50, r.14).
14. (1) The Court, on the application of any person claiming to bebeneficially entitled to an interest in any government stock or any stock of anycompany registered under any written law, may by order in Form 107 prohibit theTreasury or, as the case may be, that company from registering any transfer ofsuch part of that stock as may be specified in the order or from paying anydividend thereof or interest thereon.
The name of the holder of the stock to which the order relates shall bestated in the order.
(2) An application for an order under this rule must be made by summons.
(3) The Court, on the application of any person claiming to be entitled toan interest in any stock to which an order under this rule relates, may vary ordischarge the order on such terms (if any) as to costs as it thinks fit.
ORDER 51
RECEIVERS: EQUITABLE EXECUTION
Appointment of receivers by way of equitable execution. (0.51,r.1).
1. (1) Where an application is made for the appointment of a receiverby way of equitable execution, the Chief Justice in determining whether it isjust or convenient that the appointment should be made shall have regard to theamount claimed by the judgment creditor, to the amount likely to be obtained bythe receiver and to the probable costs of his appointment and may direct aninquiry on any of these matters or any other matter before making theappointment.
[S 31/00]
(2) Where on an application for the appointment of a receiver by way ofequitable execution it appears to the Chief Justice that the judgment creditoris resident outside the scheduled territories, or is acting by order or onbehalf of person so resident, then, unless the permission of the Controllerrequired by the Exchange Control Act (Chapter 141) has been givenunconditionally or on conditions that have been complied with, any order for theappointment of a receiver shall direct that the receiver shall pay into Court tothe credit of the cause or matter in which he is appointed any balance due fromhim after deduction of his proper remuneration.
[S 31/00]
Registrar may appoint receiver etc. (0.51, r.2).
2. Subject to any directions given by the Chief Justice under Order32, rule 9, the Registrar shall have power to make an order for the appointmentof a receiver by way of equitable execution and to grant an injunction if, andonly so far as, the injunction is ancillary or incidental to such an order.
[S 31/00]
Application of rules as to appointment of receiver etc. (0.51,r.3).
3. (1) An application for the appointment of a receiver by way ofequitable execution may be made in accordance with Order 30, rule 1, and rules 2to 6 of that Order shall apply in relation to a receiver appointed by way ofequitable execution as they apply in relation to a receiver appointed for anyother purpose.
(2) The summons for the appointment of a receiver must be in Form 108 and anorder for the appointment of receiver by way of equitable execution must be inone of the forms in Form 109.
ORDER 51A
RATEABLE DISTRIBUTION
Proceeds of execution sale to be distributed rateablyamong judgment creditors. (0.51A, r.1).
1. Where assets are realised by sale or otherwise in execution of anorder or judgment and more persons than one have, prior to the realisation,attached the property from which such assets have been realised in execution oforders or judgments for the payment of money against the same judgment debtorand have not obtained satisfaction thereof, the assets, after deducting thecosts of the realisation, shall be distributed rateably among all suchpersons:
Provided as follows —
(a) where any property is sold subject to a charge, the chargeeshall not as such be entitled to share in any surplus arising from suchsale;
(b) where any property liable to be sold in execution of an orderor judgment is subject to a charge, the Court may, with the consent of thechargee, order that the property be sold free from the charge, giving to thechargee the same right against the proceeds of the sale as he had against theproperty sold;
(c) where any immovable property is sold in execution of an order orjudgment ordering its sale for the discharge of an incumbrancer thereon, theproceeds of sale shall be applied;
first, in defraying the expenses of the sale;
secondly, in discharging the interest and principal money due on the incumbrance;
thirdly, in discharging the interest and principal money due on subsequentincumbrances (if any);
fourthly, rateably among the holders of orders or judgment for the payment ofmoney against the judgment debtor who have, prior to the sale of the saidproperty, applied to the Court which passed the order or judgment ordering such sale for execution of such orders or judgments and have not obtainedsatisfaction thereof; and
(d) where the property from which such assets have been realisedhas prior to realisation been attached by the High Court and also by one or more of the Subordinate Courts, no holder of a decree passed by aSubordinate Court shall be entitled to in the distribution of such assets unlesshe shall prior to realisation have given notice in writing to the Registrar ofthe attachment at his instance of such property by such subordinate Court.
(2) Where all or any of the assets liable to be rateably distributed underthis rule are paid to a person not entitled to receive the same, any person soentitled may sue such person to compel him to refund the assets.
(3) Nothing in this rule shall operate to defeat or postpone any claim whichunder the provisions of any written law ought to be paid in priority.
Method of subsequent attachment. (0.51A, r.2).
2. (1) Any property attached by way of execution by any court whetherphysically taken into the Court’s custody or not, shall be deemed to havebeen seized by the Court and shall not thereafter be seized at the instance ofany other person, but any subsequent order or warrant for the attachment orseizure of the same property by the same Court or any other Court, whether inthe same or another place, or a certified copy thereof, may be delivered to thesheriff or the bailiff by whom the property was seized and shall thereuponoperate and have effect as an attachment for the purpose of this Order.
(2) In the case of any property which cannot be taken into the physicalcustody of the bailiff or other officer of the Court, any prohibitory order orsimilar document for the purpose of protecting the interests of a subsequentattaching creditor may be served or registered and shall have effect inaccordance with the provisions of paragraph (1) of this rule.
(3) If the property is released from the prior attachment, it shall bedeemed to have been attached and seized under the subsequent order orwarrant.
(4) If the property remains under the prior attachment and no order for salethereof has been made within two months after such attachment, the propertyshall be deemed to have been released from the prior attachment and theprovisions of paragraph 3 of this rule shall apply.
Property attached in execution of order or judgment of several courts. (0.51A, r.3).
3. Where property not in the custody of any Court is under attachmentin execution of orders or judgments or more Courts than one, the Court whichshall receive or realise such property and shall determine any claim thereto andany objection to the attachment thereof shall be the Court of highest grade, orwhere there is no difference in grade between such Courts, the Court under whoseorder of judgment the property was first attached.
Immovable property. (0.51A, r.4).
4. Where the property to be seized consists of immovable property orany registered interest therein the following provisions shall apply —
(1) Seizure shall be made by an order prohibiting the judgment debtor from transferring, charging or leasing such property or interest. Forthe purpose of this rule “charging” shall include the creation of a lien by deposit of adocument of title;
(2) A copy of the order shall be served on the judgment debtor and one ormore copies, as the case may require, shall be issued to the judgment creditorin order that he may present the same, in compliance with the provisions of anywritten law relating to such land, for registration at the Land Office whereatthe land or interest in land specified in such order is registered;
(3) No prohibitory order issured under the this rule shall affect anyimmovable property or registered interest therein and no immovable property orregistered interest therein shall be deemed to have been seized until suchprohibitory order shall have been registered as provided by any written lawrelating to such land;
(4) Subject to the provisions of sub-rule (5) of this rule any prohibitoryorder shall upon the expiration of six months from the date thereof cease toaffect the immovable property or registered interest therein specified in suchorder.
ORDER 52
COMMITTAL
Committal for contempt of court. (0.52, r.1).
1. (1) The power of the High Court to punish for contempt of Courtmay be exercised by an order of committal in Form 110.
(2) Where contempt of Court —
(a) is committed in connection with —
(i) any proceedings before the High Court; or
(ii) criminal proceedings, except where the contempt is committed in theface of the Court or consists of disobedience to an order of the Court or abreach of an undertaking to the Court; or
(iii) proceedings in a Subordinate Court; or
(b) is committed otherwise than in connection with anyproceedings,
then, subject to paragraph (4), an order of committal may be made by theCourt.
(3) Where contempt of Court is committed in connection with any proceedingsin the High Court, an order of committal may be made by a Judge of theCourt.
(4) Where by virtue of any written law the High Court has power to punish ortake steps for the punishment of any person charged with having done anything inrelation to a court, tribunal or person which would, if it had been done inrelation to the High Court, have been a contempt of that Court, an order ofcommittal may be made by a Judge of the Court.
Application to court. (0.52, r.2).
2. (1) No application to a Court for an order of committal againstany person may be made unless leave to make such an application has been grantedin accordance with this rule.
(2) An application for such leave must be made ex parte to theCourt, except in vacation when it may be made to a Judge in Chambers, and must be supported by a statement setting out the name and descriptionof the applicant, the name, description and address of the person sought to becommitted and the grounds on which his committal is sought, and by an affidavit,to be filed before the application is made, verifying the facts relied on.
Application for order after leave to apply granted. (0.52, r.3).
3. (1) When leave has been granted under rule 2 to apply for an orderof committal, the application for the order must be made by motion to the Courtand, unless the Court or Judge granting leave has otherwise directed, there mustbe at least 8 clear days between the service of the notice of motion and the daynamed therein for the hearing.
(2) Unless within 14 days after such leave was granted the motion is enteredfor hearing the leave shall lapse.
(3) Subject to paragraph (4), the notice of motion, accompanied by a copy ofthe statement and affidavit in support of the application for leave under rule2, must be served personally on the person sought to be committed.
(4) Without prejudice to the powers of the Court or Judge under Order 62,rule 5, the Court or Judge may dispense with service of the notice of motionunder this rule if it or he thinks it just to do so.
Saving for power to commit without application for purpose. (0.52,r.4).
4. Nothing in the foregoing provisions of this Order shall be taken asaffecting the power of the High Court to make an order of committal of its ownmotion against a person guilty of contempt of Court.
Provisions as to hearing. (0.52, r.5).
5. (1) Subject to paragraph (2), the Court hearing an application for an order of committal may sit in private in the followingcases, that is to say —
(a) where the application arises out of proceedings relating to thewardship or adoption of an infant or wholly or mainly to the guardianship,custody, maintenance or upbringing of an infant, or rights of access to aninfant;
(b) where the application arises out of proceedings relating to aperson suffering or appearing to be suffering from mental disorder;
(c) where the application arises out of proceedings in which a secretprocess, discovery or invention was in issue;
(d) where it appears to the Court that in the interests of theadministration of justice or for reasons of national security the applicationshould be heard in private,
but, except as aforesaid, the application shall be heard in open Court.
(2) If the Court hearing an application in private by virtue of paragraph(1) decides to make an order of committal against the person sought to becommitted, it shall in open Court state —
(a) the name of that person;
(b) in general terms the nature of the contempt of Court in respectof which the order of committal is being made; and
(c) if he is being committed for a fixed period, the length of thatperiod.
(3) Except with the leave of the Court hearing an application for an order of committal, no grounds shall be relied upon at the hearing exceptthe grounds set out in the statement under rule 2.
The foregoing provision is without prejudice to the powers of the Court underOrder 20, rule 8.
(4) If on the hearing of the application the person sought to be committedexpresses a wish to give oral evidence on his own behalf, he shall be entitledto do so.
Power to suspend execution of committal order. (0.52, r.6).
6. (1) The Court by whom an order of committal is made may by orderdirect that the execution of the order of committal shall be suspended for suchperiod or on such terms or conditions as it may specify.
(2) Where execution of an order of committal is suspended by an order under paragraph (1), the applicant for the order of committal must,unless the Court otherwise directs, serve on the person against whom it was madea notice informing him of the making and terms of the order under thatparagraph.
Discharge of person committed. (0.52, r.7).
7. (1) The Court may, on the application of any person committed toprison for any contempt of Court, discharge him.
(2) Where a person has been committed for failing to comply with a judgmentor order requiring him to deliver anything to some other person or to deposit itin Court or elsewhere, then, if the thing is in the custody or power of theperson committed, the sheriff may take possession of it as if it were theproperty of that person and, without prejudice to the generality of paragraph(1), the Court may discharge the person committed and may give such directionsfor dealing with the thing taken by the sheriff as it thinks fit.
Saving for other powers. (0.52, r.8).
8. Nothing in the foregoing provisions of this Order shall be taken asaffecting the power of the Court to make an order requiring a person guilty ofcontempt of Court, or a person punishable by virtue of any written law in likemanner as if he had been guilty of contempt of the High Court, to pay a fine orto give security for his good behaviour, and those provisions, so far asapplicable, and with the necessary modifications, shall apply in relation to anapplication for such an order as they apply in relation to an application for anorder of committal.
Form of warrant for committal. (0.52, r.9).
9. A warrant for committal must be in Form 111.
Reference to High Court. (0.52, r.10). [S 8/99]
10. Any reference in this Order to the High Court shall include areference to the Court of Appeal.
ORDER 53
APPLICATION FOR ORDER OF MANDAMUS, PROHIBITION, CERTIORARI ETC.
No application for order of mandamus etc. without leave. (0.53,r.1).
1. (1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted inaccordance with this rule.
(2) An application for such leave must be made ex parte to theCourt, and must be supported by a statement setting out the name and descriptionof the applicant, the relief sought and the grounds on which it is sought, andby affidavits, to be filed before the application is made, verifying the factsrelied on.
(3) The applicant must give notice of the application for leave not laterthan the preceding day to the Attorney General’s Chambers and must at thesame time lodge in those Chambers copies of the statement and affidavits.
(4) The Court or Judge may, in granting leave, impose such terms as to costsand as to giving security as it or he thinks fit.
(5) The grant of leave under this rule to apply for an order of prohibitionor an order of certiorari shall, if the Court or Judge so directs,operate as a stay of the proceedings in question until the determination of theapplication or until the Court or Judge otherwise orders.
Time for applying for leave. (0.53, r.1A).
1A. Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or otherproceedings for the purpose of its being quashed, unless the application forleave is made within 6 weeks after the date of the proceeding or such otherperiod (if any) as may be prescribed by any enactment or, except where a periodis so prescribed, the delay is accounted for to the satisfaction of the Court orJudge to whom the application for leave is made and where the proceeding issubject to appeal and a time is limited by law for the bringing of the appeal,the Court or Judge may adjourn the application for leave until the appeal isdetermined or the time for appealing has expired.
Mode of applying for order of mandamus etc. (0.53, r.2).
2. (1) When leave has been granted to apply for an order of mandamus,prohibition or certiorari , the application for such order must be made byoriginating motion to a Court, and, unless the Court or Judge granting leave hasotherwise directed, there must be at least 8 clear days between the service ofthe notice of motion or summons and the day named therein for the hearing.
(2) The motion must be entered for hearing within 14 days after such leavewas granted.
(3) The notice or summons must be served on all persons directly affected,and where it relates to any proceedings in or before a Court, and the object iseither to compel the Court or an officer thereof to do any act in relation tothe proceedings or to quash them or any order made therein, the notice orsummons must be served on the Clerk or Registrar of the Court, the other partiesto the proceedings and, where any objection to the conduct of the Judge is to bemade, on the Judge.
(4) An affidavit giving the names and addresses of, and the place and dateof service on, all persons who have been served with the notice or summons mustbe filed before the motion or summons is entered for hearing, and, if any personwho ought to be served under paragraph (3) has not been served, the affidavitmust state that fact and the reason why service has not been effected, and theaffidavit shall be before the Court or Judge on the hearing of the motion orsummons.
(5) If on the hearing of the motion or summons the Court or Judge is ofopinion that any person who ought to have been served with the notice or summonshas not been served, whether or not he is a person who ought to have been servedunder paragraph (3), the Court or Judge may adjourn the hearing on such terms(if any) as it or he may direct in order that the notice or summons may beserved on that person.
Statements and affidavits. (0.53, r.3).
3. (1) Copies of the statement and of the affidavits in support ofthe application for leave under rule 1 must be served with the notice of motionor summons under rule 2 and, subject to paragraph (2), no grounds shall berelied upon or any relief sought at the hearing of the motion or summons exceptthe grounds and relief set out in the said statement.
(2) The Court or Judge may on the hearing of the motion or summons allow thesaid statement to be amended, and may allow further affidavits to be used ifthey deal with new matter arising out of any affidavit of any other party to theapplication, and where the applicant intends to ask to be allowed to amend hisstatement or use further affidavits, he must give notice of his intention and ofany proposed amendment of his statement to every other party, and must supplycopies of such further affidavits.
(3) Every party to the application must supply to any other party copies ofthe affidavits which he proposes to use at the hearing.
Right to be heard in opposition. (0.53, r.4).
4. On the hearing of any motion or summons under rule 2, any personwho desires to be heard in opposition to the motion or summons and appears tothe Court or Judge to be a proper person to be heard shall be heardnotwithstanding that he has not been served with the notice or summons.
Application for order of certiorari to quash proceedings. (0.53,r.5).
5. (1) In the case of an application for an order of certiorari to remove any proceedings for the purpose of their beingquashed, the applicant may not question the validity of any order, warrant,commitment, conviction, inquisition or record unless before the hearing of themotion or summons he has served a copy thereof verified by affidavit on theAttorney General, or accounts for his failure to do so to the satisfaction ofthe Court or Judge hearing the motion or summons.
(2) Where an order of certiorari is made in any such case the ordershall direct that the proceeding shall be quashed forthwith on their removal tothe High Court.
Saving for person acting in obedience to mandamus. (0.53, r.6).
6. No action or proceeding shall be begun or prosecuted against anyperson in respect of anything done in obedience to an order of mandamus.
Order made by Judge in Chambers may be set aside etc. (0.53,r.7).
7. An appeal shall lie from an order made by a Judge in Chambers underthis Order as it does in the case of an interlocutory order.
ORDER 54
APPLICATIONS FOR WRIT OF HABEAS CORPUS
Application for writ of habeas corpus ad subjiciendum. (0.54,r.1).
1. (1) An application for a writ of habeas corpus ad subjiciendum must be made to the High Court except that —
(a) at any time when no Judge is sitting in Court, it may be madeto a Judge otherwise than in Court; and
(b) in cases where the application is made on behalf of an infant,it must be made in the first instance to a Judge otherwise than in Court.
(2) An application for such writ may be made ex parte and, subjectto paragraph (3), must be supported by an affidavit by the person restrainedshowing that it is made at his instance and setting out the nature of therestraint.
(3) Where the person restrained is unable for any reason to make theaffidavit required by paragraph (2), the affidavit maybe made by some otherperson on his behalf and that affidavit must state that the person restrained isunable to make the affidavit himself and for what reason.
Power of court to whom ex parte application made. (0.54,r.2).
2. (1) The Court or Judge to whom an application under rule 1 is made ex parte may make an order forthwith for the writ to issue, or may—
(a) where the application is made to a Judge otherwise than inCourt, direct that an originating summons for the writ be issued, or that anapplication therefor be made by originating motion;
(b) where the application is made to a Judge in Court, adjourn theapplication so that notice thereof may be given.
(2) The summons or notice of the motion must be served on the person againstwhom the issue of the writ is sought and on such other persons as the Court orJudge may direct, and, unless the Court or Judge otherwise directs, there mustbe at least 8 clear days between the service of the summons or notice and thedate named therein for the hearing of the application.
Copies of affidavits to be supplied. (0.54, r.3).
3. Every party to an application under rule 1 must supply to everyother party copies of the affidavits which he proposes to use at the hearing ofthe application.
Power to order release of person restrained. (0.54, r.4).
4. Without prejudice to rule 2(1), the Court or Judge hearing anapplication for a writ of habeas corpus ad subjiciendum may in its or hisdiscretion order that the person restrained be released, and such order shall bea sufficient warrant to any superintendent of a prison or other person for therelease of the person under restaint.
Directions as to return to writ. (0.54, r.5).
5. Where a writ of habeas corpus ad subjiciendum is ordered toissue, the Court or Judge by whom the order is made shall give directions as tothe date on which the writ is returnable.
Service of writ and notice. (0.54, r.6).
6. (1) Subject to paragraphs (2) and (3), a writ of habeas corpusad subjiciendum must be served personally on the person to whom it isdirected.
(2) If it is not possible to serve such writ personally, or if it is directed to a superintendent of a prison or other public official, itmust be served by leaving it with a servant or agent of the person to whom thewrit is directed at the place where the person restrained is confined orrestrained.
(3) If the writ is directed to more than one person, the writ must be servedin the manner provided by this rule on the person first named in the writ, andcopies must be served on each of the other persons in the same manner as thewrit.
(4) There must be served with the writ a notice in Form 112 stating the dateon which the person restrained is to be brought and that in default of obedienceproceedings for committal of the party disobeying will be taken.
Return to the writ. (0.54, r.7).
7. (1) The return to a writ of habeas corpus ad subjiciendum must be indorsed on or annexed to the writ and must state all the causes of thedetainer of the person restrained.
(2) The return may be amended, or another return substituted therefor, byleave of the Court or Judge.
Procedure at hearing of writ. (0.54, r.8).
8. When a return to a writ of habeas corpus ad subjiciendum ismade, the return shall first be read, and motion then made for discharging orremanding the person restrained or amending or quashing the return, and wherethat person is brought up in accordance with the writ, his counsel shall beheard first, then the counsel for the Attorney General, and then one counsel forthe person restrained in reply.
Form of writ. (0.54, r.9).
9. A writ of habeas corpus ad subjiciendum must be in Form113.
ORDER 55
APPEALS FROM SUBORDINATE COURTS AND STATUTORY BODIES
Entry of Appeal. (0.55, r.1).
1. On receiving an appeal record under the Subordinate Courts Act(Chapter 6), the Registrar shall enter the appeal in a list of appeals from SubordinateCourts.
Memorandum of Appeal. (0.55, r.2).
2. (1) The appellant shall, within fourteen days from the date ofservice on him of the notice referred to in the Subordinate Court Act (Chapter6) or within such extended time as the High Court may allow, file in the HighCourt in duplicate a memorandum of appeal in Form 113A.
(2) The appellant shall within the like period serve each respondent with acopy of such memorandum and a copy of the appeal record.
Notice of Cross-Appeal. (0.55, r.3).
3. A respondent to an appeal may, within seven days from the date ofservice on him of the memorandum of appeal, file in the High Court and serveupon the appellant a notice in Form 113B that he intends to contend on thehearing of the appeal that the decision of the Court below should be varied.
Amendments. (0.55, r.4).
4. (1) The High Court may at any time allow amendment of thememorandum of appeal or notice of cross-appeal or other part of the record ofappeal on such terms as it thinks fit.
(2) If the memorandum of appeal is not drawn up in the prescribed manner,the appeal may be dismissed.
(3) If the memorandum of appeal is not filed or is not served within theprescribed time and no sufficient ground is shown for the delay the appeal maybe dismissed.
Appellant not appearing. (0.55, r.5).
5. (1) If, on any day fixed for the hearing of an appeal, theappellant does not appear in person or by an advocate, the appeal may bedismissed but any cross-appeal may be heard.
(2) If the appellant appears, and any respondent fails to appear either inperson or by an advocate, the appeal shall proceed in the absence of suchrespondent, unless the High Court for any sufficient reason sees fit to adjournthe hearing thereof.
(3) Where any appeal is dismissed or allowed under the provisions ofsub-rule (1) or
(2) of this rule the party who was absent may apply to the High Court for there-hearing of the appeal and where it is proved that there was sufficient reasonfor the absence of such party, the High Court may order that the appeal berestored for hearing upon such terms as to costs or otherwise as it thinksfit.
(4) The provisions of sub-rule (3) of this rule shall apply mutatismutandis to the hearing of any cross-appeal.
Withdrawal of appeal. (0.55, r.6).
6. (1) An appellant may at any time before his appeal is called onfor hearing serve on the parties to the appeal a notice to the effect that hedoes not intend further to prosecute the said appeal.
(2) A copy of such notice shall at the same time be filed by the appellantin the Registry of the High Court.
(3) If all parties to the appeal consent to the intended withdrawal of theappeal, the appellant may file in the Registry the document or documentssignifying such consent and signed by the parties or by their solicitors, andthe appeal shall thereupon be deemed to have been withdrawn and shall be struckout of the list of appeals by the Registrar. In such event any sum lodged inCourt as security for costs of the appeal shall be paid out to theappellant.
(4) If all the parties do not consent to the intended withdrawal of theappeal, the appeal shall remain on the list, and shall come on for hearing ofany issue as to costs or otherwise remaining outstanding between the parties,and for the making of an order as to the disposal of any sum lodged in Court assecurity for the costs of the appeal.
Notice of appeal by respondent where notice of appeal withdrawn or appeal not entered. (0.55, r.7).
7. Where an appeal is withdrawn under the preceding rule, or where anappeal of which notice has been given is not entered within the time limited,any respondent who has not given notice of cross-appeal may give notice ofappeal and proceed therewith in the manner prescribed by the foregoing rules;but in any such case the times limited for giving notice of appeal, entering theappeal, furnishing security for costs, and filing and serving the record ofappeal and the memorandum of appeal may, on application to the High Court, or,if the appeal has not been entered, to the Court appealed from, be extended sofar as is reasonably necessary in all the circumstances of the case.
High Court may direct service of notice on person not served. (0.55,r.8).
8. When an appeal is called on for hearing or at any previous time onthe application of any person interested, the High Court may direct that therecord of appeal, or any notice of cross-appeal, be served on any party to the cause or matter who has not been served therewith, or on any person not already a party to thecause or matter, and may, for the purpose of such service, adjourn the hearingupon such terms as are just, and may give such judgment and make such order asmight have been given or made if the parties served with such record or noticehad been originally parties.
Interest. (0.55, r.9).
9. On any appeal, interest, for such time as execution has beendelayed by the appeal, shall be allowed, unless the High Court otherwiseorders.
Pronouncement of judgment. (0.55, r.10).
10. The judgment of the High Court shall be pronounced in open Court,either on the hearing of the appeal or at any subsequent time of which noticeshall be given to the parties to the appeal.
Decision on appeal to be sent to Court below. (0.55, r.11).
11. A certified copy of the judgment of the High Court on the appealshall be sent to the Court from whose decision the appeal was brought.
Stay of execution. (0.55, r.12).
12. An appeal shall not operate as a stay of execution under thedecision appealed against except in so far as the Court appealed from or theHigh Court may order, and any application for stay shall be made in the firstinstance to the Court appealed from.
Appeal from persons or body of persons. (0.55, r.13).
13. (1) Where under any written law an appeal lies from any decisionof any person or body of persons to the High Court such appeal shall be made tothe High Court by motion setting out the grounds of appeal, supported byaffidavit and, if the Court so directs at the hearing, by oral evidence.
(2) Unless otherwise provided by any written law, such appeal shall be madewithin one month from the date on which the decision was given or the date onwhich such decision was notified to the person appealing, whichever is the laterdate.
(3) Unless otherwise provided by any written law, notice of the motion shallbe served on the respondent in such appeal or where the respondent is a body ofpersons, on the secretary, registrar or such other officer of that body ofpersons.
ORDER 56
APPEALS FROM REGISTRAR AND JUDGE
Appeals from certain decisions of Registrar to Judge in Chambers. (0.56,r.1).
1. (1) An appeal shall lie to a Judge in Chambers from any judgment,order or decision of the Registrar.
(2) The appeal shall be brought by serving on every other party to theproceedings in which the judgment, order or decision was given or made a noticein Form 114 to attend before the Judge on a day specified in the notice.
(3) Unless the Court otherwise orders, the notice must be issued within 5days after the judgment, order or decision appealed against was given or madeand served not less than 2 clear days before the day fixed for hearing the appeal.
(4) Except so far as the Court may otherwise direct, an appeal under thisrule shall not operate as a stay of the proceedings in which the appeal isbrought.
Appeal from Judge. (0.56, r.2).
2. (1) An appeal shall lie to the Court of Appeal from any judgment,order or decision of a Judge.
(2) Revoked.
ORDER 57
APPEALS TO THE COURT OF APPEAL
Application of order to appeals. (0.57, r.1). [S 30/91]
1. This Order applies to every appeal to the Court of Appeal(including so far as it is applicable thereto, any appeal to that Court from anytribunal from which an appeal lies to the Court under or by virtue of anywritten law) not being an appeal for which other provision is made by theseRules.
Application of order of applications for new trial. (0.57, r.2). [S 30/91]
2. This Order (except so much of rule 3(1) as provides that an appealshall be by way of rehearing and except rule 14(1)) applies to an application tothe Court of Appeal for a new trial or to set aside a finding or judgment aftertrial, as it applies to an appeal to the Court, and references in this Order toan appeal to an appellant shall be construed accordingly.
Notice of appeal. (0.57, r.3). [S 30/91]
3. (1) An appeal to the Court of Appeal shall be by way of rehearingand must be brought by notice of appeal in Form 115.
(2) Notice of appeal may be given either in respect of the whole or inrespect of any specified part of the judgment or order of the Court below; andevery such notice must state the whole or part only, and what part, of thejudgment or order is complained of, contain an address for service, and besigned by the appellant or his solicitor.
(3) The appellant must at the time of filing the notice of appeal deposit asum of $1,000 by way of security for the respondent’s costs of the appeal inthe Registry and obtain a certificate in Form 116.
[S 31/00]
(4) The Court of Appeal at any time, in any case where it thinks fit, orderfurther security for costs to be given.
(5) The Registrar must assign a number to the notice of appeal and enter theappeal on the list of appeals, stating therein the title of the cause or matter,the name of the appellant and his solicitor, if any, and the date of suchentry.
(6) The notice of appeal must be served on all parties to the proceedings inthe Court below who are directly affected by the appeal or their solicitorsrespectively at the time of filing the notice of appeal; and subject to rule 10,it shall not be necessary to serve the notice on parties not so affected.
Time for appealing. (0.57, r.4). [S 30/91]
4. (1) Subject to the provisions of this rule, every notice of appealmust be filed and served under rule 3(6) within one month —
(a) in the case of an appeal from an order in Chambers, from thedate when such order was pronounced or when the appellant first had noticethereof;
(b) in the case of an appeal against the refusal of an application,from the date of such refusal;
(c) in all other cases, from the date on which the judgment or orderappealed against was pronounced.
(2) Where a summons to vary or discharge a certificate and the furtherconsideration of an action are heard together, and an order is made on both,notice of appeal in respect of the order made on the summons may be served atany time before the expiration of the period within which notice of appeal couldbe served in respect of the order made on further consideration.
Record of proceedings. (0.57, r.5). [S 30/91]
5. (1) When a notice of appeal has been filed, the Judge who gave thejudgment or made the order must, unless the judgment was written, certify inwriting the grounds of such judgment or order; but delay or failure so tocertify shall not prevent the appellant from proceeding with the appeal.
(2) As soon as possible after notice of appeal has been filed the Registrarshall cause to be served on the appellant or his solicitor at his address forservice specified in the notice of appeal a notice that a copy of the record ofproceedings is available and thereupon the appellant or his solicitor shall paythe prescribed fee.
(3) The record of proceedings shall consist of a certified copy of thejudgment or grounds of judgment or order (if any), and a certified copy of thenotes of evidence taken at the hearing of the cause or matter.
Petition of appeal. (0.57, r.6). [S 30/91]
6. (1) Within one month after service of the notice referred to inrule 5(2), the appellant must, if he desires to proceed with the appeal, file inthe Registry a petition of appeal in duplicate in Form 117 and a copy of thepetition must be served on every respondent to the appeal or his solicitor.
(2) Every petition of appeal must be signed by the appellant or hissolicitor and shall contain concisely and under distinct heads, without argumentor narrative, particulars of the matters of law or of fact in regard to whichthe trial Court is alleged to have erred, such particulars to be numberedconsecutively, and, except with the leave of the Court of Appeal, the appellantshall not be permitted on the hearing of the appeal, to rely on any ground ofappeal other than those set out in the petition.
(3) If a petition of appeal is not filed within the time prescribed byparagraph (l), the appeal shall be deemed to have been withdrawn, but nothing inthis rule shall be deemed to limit or restrict the powers of extending timeconferred upon the Court of Appeal.
Respondent’s notice. (0.57, r.7). [S 30/91]
7. (1) A respondent who, not having appealed from the decision of theCourt below, desires to contend on the appeal that the decision of the Courtshould be varied, either in any event or in the event of the appeal beingallowed in whole or in part, must give notice to that effect, specifying thegrounds of that contention.
(2) A respondent who desires to contend on the appeal that the decision ofthe Court below should be affirmed on grounds other than those relied upon bythat Court must give notice to that effect specifying the grounds of thatcontention.
(3) Except with the leave of the Court of Appeal, a respondent shall not beentitled on the hearing of the appeal to contend that the decision of the Courtbelow should be varied upon grounds not specified in a notice given under thisrule, to apply for any relief not so specified, or to support the decision ofthe Court below upon any grounds not relied upon by that Court or specified insuch a notice.
(4) Any notice given by a respondent under this rule (in this Order referredto as “respondent’s notice”) must be in Form 118 and must befiled and a copy thereof served on the appellant, and on all parties to theproceedings in the Court below who are directly affected by the contentions ofthe respondent must be served —
(a) in the case of an appeal against interlocutory order, within 7days; and
(b) in any other case, within 14 days,
after the service of the petition on the respondent.
Amendment of petition of appeal and respondent’s notice. (0.57,r.8). [S 30/91]
8. A petition of appeal or respondent’s notice may be amended—
(a) by or with the leave of the Court of Appeal, at any time;
(b) without such leave, by supplementary petition of appeal filedand served at least 10 days before the hearing of the appeal.
Record of appeal. (0.57, r.9). [S 30/91]
9. (1) Within 10 days after the filing of the petition of appealreferred to in rule 6(1), the appellant must file 4 copies of the record ofappeal and serve a copy of it on every respondent to the appeal or hissolicitor.
(2) The record of appeal shall consist of a copy each of the notice ofappeal, petition of appeal, certificate of payment of security for costs,respondent's notice (if any), the record of proceedings referred to in rule5(3), the documents in the nature of pleadings and other documents, so far as isnecessary for showing the matter decided and the nature of the appeal, and thejudgment or order appealed from.
(3) A draft index of the documents to be included in the record of appealshall be sent by the appellant’s solicitor to the solicitors for therespondents who or (if more than one) any of whom may within 48 hours object to the inclusion or exclusion of any document. In the event of theparties being unable to agree the matter shall be referred to the Registrar. TheRegistrar as well as the parties shall endeavour to exclude from the record alldocuments (more particularly such as are merely formal) that are not relevant tothe subject- matter of the appeal taking special care to avoid the duplication of documents and unnecessary repetition of headings, and othermerely formal parts of documents. Where in the course of preparation of therecord one party objects to the inclusion of a document on the ground that it isunnecessary or irrelevant and the other party nevertheless insists on its beingincluded, the record, as finally printed or typed shall, with a view to thesubsequent adjustment of the costs of and incidental to such document, indicate,in the index of papers, or otherwise, the fact that, and the party by whom, theinclusion of the document was objected to.
(4) Where an appellant omits to comply with paragraph (1), any respondentwho has filed a respondent’s notice may proceed with his appeal, and inany such case the respondent shall as soon as practicable or within such time as may be allowed by theRegistrar file a record of appeal.
(5) Where any respondent has not filed a respondent’s notice and anappellant omits to comply with paragraph (l), the appeal shall be deemed to havebeen withdrawn, but nothing in this rule shall be deemed to limit or restrictthe powers of extending time conferred upon the Court of Appeal.
Directions of the Court as to service. (0.57, r.10). [S30/91]
10. (1) The Court of Appeal may in any case direct that the record ofAppeal be served on any party to the proceedings in the Court below on whom ithas not been served, or on any person not party to those proceedings.
(2) In any case in which the Court of Appeal directs the record of appeal tobe served on any party or person, the Court may also direct that anyrespondent’s notice shall be served on him.
(3) The Court of Appeal may in any case where it gives a direction underthis rule —
(a) postpone or adjourn the hearing of the appeal for such periodand on such terms as may be just; and
(b) give such judgment and make such order on the appeal as mighthave been given or made if the persons served in pursuance of the direction hadoriginally been parties.
Withdrawal of notice. (0.57, r.11). [S 30/91]
11. (1) An appellant may at any time before his appeal is called onfor hearing serve on the parties to the appeal and file a notice to the effectthat he does not intend further to prosecute the said appeal.
(2) If all parties to the appeal consent to the intended withdrawal of theappeal, the appellant must file the document signifying such consent signed bythe parties or by their solicitor, and the appeal shall thereupon be deemed tohave been withdrawn and shall be struck out of the list of appeals by theRegistrar; in such event any sum lodged in Court as security for the costs ofthe appeal shall be paid out to the appellant.
(3) If all the parties do not consent to the intended withdrawal of theappeal, the appeal shall remain on the list, and shall come on for the hearingof any issue as to costs or otherwise remaining outstanding between the parties,and for the making of an order as to the disposal of any sum lodged in Court assecurity for the costs of the appeal.
Respondent’s notice where appeal not proceeded with. (0.57, r.12). [S 30/91]
12. Where an appeal is not proceeded with under rule 9 or where anappeal is withdrawn under rule 11, any respondent who has filed arespondent’s notice may proceed therewith in the manner prescribed by theforegoing Rules.
General powers of the Court. (0.57, r.13). [S 30/91]
13. (1) In relation to an appeal the Court of Appeal shall have allthe powers and duties as to amendment and otherwise of the High Court.
(2) The Court of Appeal shall have power to receive further evidence onquestions of fact, either by oral examination in Court, by affidavit, or bydeposition taken before an examiner, but, in the case of an appeal from ajudgment after trial or hearing of any cause or matter on the merits, no suchfurther evidence (other than evidence as to matters which have occurred afterthe date of trial or hearing) shall be admitted except on special grounds.
(3) The Court of Appeal shall have power to draw inferences of fact and togive any judgment and make any order which ought to have been given or made, andto make such further or other order as the case may require.
(4) The powers of the Court of Appeal under the foregoing provisions of thisrule may be exercised notwithstanding that no notice of appeal orrespondent’s notice has been given in respect of any particular parts ofthe decision of the Court below or by any particular party to the proceedings inthat Court, or that any ground for allowing the appeal or for affirming orvarying the decision of that Court is not specified in such a notice; and theCourt of Appeal may make any order, on such terms as the Court thinks just, toensure the determination on the merits of the real question in controversybetween the parties.
(5) The powers of the Court of Appeal in respect of an appeal shall not berestricted by reason of any interlocutory order from which there has been noappeal.
Powers of the Court as to new trial. (0.57, r.14). [S30/91]
14. (1) On the hearing of any appeal the Court of Appeal may, if itthinks fit, make any such order as could be made in pursuance of an applicationfor a new trial or to set aside any finding or judgment of the Court below.
(2) The Court of Appeal shall not be bound to order a new trial on theground of misdirection, or of the improper admission or rejection of evidence,unless in the opinion of the Court of Appeal some substantial wrong has beenthereby occasioned.
(3) A new trial may be ordered on any question without interfering with thefinding or decision on any other question; and if it appears to the Court ofAppeal that any such wrong as is mentioned in paragraph (2) affects part only ofthe matter in controversy, or one or some only of the parties, the Court mayorder a new trial as to that part only, or as to that party or those partiesonly, and give final judgment as to the remainder.
(4) In any case where the Court of Appeal has power to order a new trial onthe ground that damages awarded are excessive or inadequate, the Court may, inlieu of ordering a new trial —
(a) substitute for the sum awarded such sum as appears to the Courtto be proper;
(b) reduce or increase the sum awarded by such amount as appears tothe Court to be proper in respect of any distinct head of damages erroneouslyincluded in or excluded from the sum so awarded,
but except as aforesaid the Court of Appeal shall not have power to reduce orincrease the damages.
(5) A new trial shall not be ordered by reason of the ruling of any Judgethat a document is sufficiently stamped or does not require to be stamped.
Stay of execution etc. (0.57, r.15). [S 30/91]
15. (1) Except so far as the Court below or the Court of Appeal mayotherwise direct —
(a) an appeal shall not operate as a stay of execution or ofproceedings under the decision of the Court below;
(b) no intermediate act or proceeding shall be invalidated by anappeal.
(2) On an appeal from the High Court, interest for such time as executionhas been delayed by the appeal shall be allowed unless the Court otherwiseorders.
Application to Court of Appeal. (0.57, r.16). [S 30/91]
16. (1) Every application to the Court of Appeal shall be by motion,and the provisions of Order 8 shall apply thereto.
(2) Any application to the Court of Appeal for leave to appeal (other than an application made after the expiration of the time forappealing) must, if the appellant is acting in person, be made ex parte in the first instance; but unless the application is then dismissed or it appears to that Court that undue hardship would be caused by anadjournment, the Court shall adjourn the application and give directions for theservice of the notice thereof on the party or parties affected.
(3) Where an ex parte application has been refused by the Court below, an application for a similar purpose may be made to the Court ofAppeal ex parte within 7 days after the date of the refusal.
(4) Whenever under these Rules an application may be made either to theCourt below or to the Court of Appeal, it shall not be made in the firstinstance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticable to apply to theCourt below.
Extension of time. (0.57, r.17). [S 30/91]
17. Without prejudice to the power of the Court of Appeal under Order3, rule 5, to extend the time prescribed by any provision of this Order, theperiod for serving notice of appeal under rule 4 or for making application exparte under rule 16(3) may be extended by the Court below on applicationmade before the expiration of that period.
Appellant or respondent not appearing. (0.57, r.18). [S30/91]
18. (1) If on any day fixed for the hearing of an appeal, theappellant does not appear in person or by an advocate, the appeal may bedismissed.
(2) If the appellant appears, and any respondent fails to appear, either inperson or by an advocate, the appeal shall proceed in the absence of suchrespondent, unless the Court for any sufficient reason sees fit to adjourn thehearing thereof.
(3) Where any appeal is dismissed or allowed under the provisions ofparagraph (1) or (2), the party who was absent may apply to the Court of Appealfor the rehearing of the appeal and where it is proved that there was sufficientreason for the absence of such party the Court of Appeal may order that theappeal be restored for hearing upon such terms as to costs or otherwise as itthinks fit.
(4) The provisions of this rule shall apply mutatis mutandis to thehearing of any respondent’s notice.
Powers of single Judge and Registrar. (0.57, r.19). [S 30/91; S28/96]
19. (1) Those powers of the Court of Appeal which are specified inparagraph (2) may be exercised by a single Judge of the High Court or of theCourt of Appeal or by the Registrar.
(2) The said powers are the following —
(a) to order further security for costs under rule 3(4);
(b) to extend the time within which notice of appeal may begiven;
(c) to allow an amendment of a petition of appeal orrespondent’s notice under rule 8;
(d) to extend time under rule 9(1);
(e) to give directions as to service under rule 10(1);
(f) any power, other than that of a direction, under rule 10;
(g) to extend time under rule 17;
(h) any other matter incidental to the hearing but not concernedwith the merits thereof.
(3) If a single Judge of the High Court or of the Court of Appeal or theRegistrar refuses an application by any person to exercise in his favour any ofthe said powers, the applicant shall be entitled to have the applicationdetermined by the Court of Appeal.
ORDER 58
(There is no Order 58)
ORDER 59
COSTS
Preliminary
Interpretation. (0.59, r.1).
1. (1) In this Order —
“certificate” includes allocatur;
“contentious business” have the same meanings respectively as inthe Legal Profession Act (Chapter 132);
“costs” includes fees, charges, disbursements, expenses andremuneration;
“non-contentious business” have the same meanings respectively asin the Legal Profession Act (Chapter 132);
“taxed costs” means costs taxed in accordance with thisOrder.
(2) In this Order references to a fund, being a fund out of which costs areto be paid or which is held by a trustee or personal representative, includereferences to any estate or property, whether movable or immovable, held for thebenefit of any person or class of persons; and references to a fund held by atrustee or personal representative include references to any fund to which he isentitled (whether alone or together with any other person) in that capacity,whether the fund is for the time being in his possession or not.
(3) The item mentioned in the first column of the table below, when used inan order for costs, shall have the effect indicated in the second column of thattable.
TABLE
Term Effect
“Costs” Where this order is made in interlocutory proceedings,the party in whose favour it is made shall be entitled to his costs in respectof those proceedings whatever the outcome of the cause of matter in which theproceedings arise;
“Costs reserved” The party in whose favour an order for costs ismade at the conclusion of the cause or matter in which the proceedingsarise shall be entitled to his, costs of the proceedings in respect of whichthis order is made unless the Court orders otherwise;
“Costs in any event” This order has the same effect as an orderfor “costs” except that the costs shall be taxed only after theconclusion of the cause or matter in which the proceedings arise;
“Costs here and below” The party in whose favour this order ismade shall be entitled not only to his costs in respect of the proceedings inwhich it is made but also to his costs of the same proceedings in anylower court, tribunal or other body constituted under any written law or inarbitration proceedings;
“Costs in the cause” or “costs in application” Theparty in whose favour an order for costs is made at the conclusion of thecause or matter in which the proceedings arise shall be entitled to his costs of the proceedings in respect of which such an order is made.
[S 8/99]
Application. (0.59, r.2).
2. (1) Where by virtue of any written law the costs of or incidentalto any proceedings before an arbitrator or umpire or before a tribunal or otherbody constituted by or under any written law, not being proceedings in the HighCourt, are taxable in the High Court, the following provisions of this Order,that is to say, rule 7(4) and (5), rule 8(6), rules 13 and 14, rule 15(1), rule16, rules 20 to 25 and rules 34 to 36, shall have effect in relation toproceedings for taxation of those costs as they have effect in relation toproceedings for taxation of the costs of or arising out of proceedings in theHigh Court.
(2) Subject to the express provisions of any written law and of these Rules,the costs of and incidental to proceedings in the Court, including theadministration of estates and trusts, shall be in the discretion of the Court,and the Court shall be full power to determine by whom and to what extent thecosts are to be paid.
Entitlement to Costs
When costs to follow the event. (0.59, r.3).
3. (1) Subject to the following provisions of this Order, no partyshall be entitled to recover any costs of or incidental to any proceedings fromany other party to the proceedings except under an order of the Court.
(2) If the Court in the exercise of its discretion sees fit to make anyorder as to the costs of or incidental to any proceedings, the Court shall,subject to this Order, order the costs to follow the event, except when itappears to the Court that in the circumstances of the case some other ordershould be made as to the whole or any part of the costs.
(3) The costs of and occasioned by any amendment made without leave in thewrit of summons or any pleadings shall be borne by the party making theamendment, unless the Court otherwise orders.
(4) The costs of and occasioned by any application to extend the time fixedby these Rules, or any direction or order thereunder, for serving or filing anydocument or doing any other act (including the costs of any order made on theapplication) shall be borne by the party making the application, unless theCourt otherwise orders.
(5) If a party on whom a notice to admit facts is served under Order 27,rule 2, refuses or neglects to admit the facts within 7 days after the serviceon him of the notice or such longer time as may be allowed by the Court, thecosts of proving the facts shall be paid by him, unless the Court otherwiseorders.
(6) If a party —
(a) on whom a list of documents is served in pursuance of anyprovision of Order 24; or
(b) on whom a notice to admit documents is served under Order 27,rule 5,
gives notice of non-admission of any of the documents in accordance withOrder 27, rule 4(2) or 5(2), as the case may be, the costs of proving that document shall bepaid by him, unless the Court otherwise orders.
(7) Where a defendant by notice in writing and without leave discontinueshis counter-claim against any party or withdraws any particular claim made byhim therein against any party, that party shall, unless the Court otherwisedirects, be entitled to his costs of the counter-claim or his costs occasionedby the claim withdrawn, as the case may be, incurred to the time of receipt ofthe notice of discontinuance or withdrawal.
(8) Where a plaintiff accepts money paid into Court by a defendant whocounter- claimed against him, then, if the notice of payment given by thatdefendant stated that he had taken into account and satisfied the cause ofaction or, as the case may be, all the causes of action in respect of which he counter-claimed, that defendant shall, unless the Court otherwisedirects, be entitled to his costs of the counter-claim incurred to the time ofreceipt of the notice of acceptance by the plaintiff of the money paid intoCourt.
(9) Where any person claiming to be a creditor —
(a) seeks to establish his claim to a debt under any judgment or order in accordance with Order 44; or
(b) comes in to prove his title, debt or claim in relation to a company in pursuance of any such notice as is mentioned inOrder 83, rule 13,
[S 31/00] he shall, if his claim succeeds, be entitled to his costsincurred in establishing it, unless the Court otherwise directs, and, if hisclaim or any part of it fails, may be ordered to pay the costs of any personincurred in opposing it.
(10) Where a claimant is entitled to costs under paragraph (9), the amountof the costs shall be fixed by the Court unless it thinks fit to direct taxationand the amount fixed or allowed shall be added to the claimant's debt.
(11) Where a claimant (other than a person claiming to be a creditor) having established a claim to be entitled under a judgment or orderin accordance with Order 44 has been served with notice of the judgment or orderpursuant to rule 3 or 15 of that Order, he shall, if he enters an appearance, beentitled as part of his costs of action (if allowed) to costs incurred inestablishing his claim, unless the Court otherwise directs; and where such aclaimant fails to establish his claim or any part of it he may be ordered to paythe costs of any person incurred in opposing it.
Stage of proceedings at which costs to be dealt with. (0.59,r.4).
4. (1) Costs may be dealt with by the Court at any stage of theproceedings or after the conclusion of the proceedings; and any order of theCourt for the payment of any costs may, if the Court thinks fit, require thecosts to be paid forthwith notwithstanding that the proceedings have not beenconcluded.
(2) In the case of any proceedings transferred or removed to the High Courtfrom any other court, the costs of the whole proceedings, both before and afterthe transfer or removal, may be dealt with by the Court to which the proceedings are transferred or removed.
(3) Where under paragraph (2) the Court makes an order as to the costs ofany proceedings before another court, rules 27, 30 and 31 shall not apply inrelation to those costs, but, except in relation to costs of proceedingstransferred or removed from a Subordinate Court, the order —
(a) shall specify the amount of the costs to be allowed; or
(b) shall direct that the costs shall be assessed by the courtbefore which the proceedings took place; or
(c) if the order is made on appeal from a Subordinate Court inrelation to proceedings in that Court, may direct that the costs shall be taxedby the Registrar.
Special matters to be taken into account in exercising discretion. (0.59,r.5).
5. The Court in exercising its discretion as to costs shall, to suchextent, if any, as may be appropriate in the circumstances, take into account—
(a) any such offer of contribution as is mentioned in Order 16,rule 10, which is brought to its attention in pursuance of a reserved right todo so;
(b) any payment of money into court and the amount of suchpayment;
(c) the fact that the action ought to have been brought in anotherCourt.
[S 31/00]
Restriction of discretion to order costs. (0.59, r.6).
6. (1) Notwithstanding anything in this Order or under any writtenlaw unless the Court is of opinion that there was no reasonable ground foropposing the will, no order shall be made for the costs of the other side to bepaid by the party opposing a will in a probate action who has given notice withhis defence to the party setting up the will that he merely insists upon thewill being proved in solemn form of law and only intends to cross-examine thewitnesses produced in support of the will.
(2) Where a person is or has been a party to any proceedings in the capacityof trustee, personal representative or chargee, he shall, unless the Courtotherwise orders, be entitled to the costs of those proceedings, in so far asthey are not recovered from or paid by any other person, out of the fund held bythe trustee or personal representative or the charged property, as the case maybe; and the Court may otherwise order only on the ground that the trustee,personal representative or chargee has acted unreasonably or, in the case of atrustee or personal representative, has in substance acted for his own benefitrather than for the benefit of the fund.
Costs arising from misconduct or neglect. (0.59, r.7).
7. (1) Where in any cause or matter anything is done or omission ismade improperly or unnecessarily by or on behalf of a party, the Court maydirect that any costs to that party in respect of it shall not be allowed to himand that any costs occasioned by it to other parties shall be paid by him tothem.
(2) Without prejudice to the generality of paragraph (1) the Court shall forthe purpose of that paragraph have regard in particular to the followingmatters, that is to say —
(a) the omission to do anything the doing of which would have beencalculated to save costs;
(b) the doing of anything calculated to occasion, or in a manner orat a time calculated to occasion unnecessary costs;
(c) any unnecessary delay in the proceedings.
(3) The Court may, instead of giving a direction under paragraph (1) of thisrule in relation to anything done or omission made, direct the Registrar toinquire into it and, if it appears to him that such a direction as aforesaidshould have been given in relation to it, to act as if the appropriate directionhad been given.
(4) The Registrar shall, in relation to anything done or omission made inthe course of taxation and in relation to any failure to procure taxation havethe same power to disallow or to award costs as the Court has under paragraph(1) to direct that costs shall be disallowed to or paid by any party.
(5) Where a party entitled to costs fails to procure or fails to proceedwith taxation, the Registrar in order to prevent any other parties beingprejudiced by that failure, may allow the party so entitled a nominal or othersum for costs or may certify the failure and the costs of the other parties.
Costs of taxations. (0.59, r.7A). [S 8/99]
7A. (1) Subject to this Order and any written law, the party whosebill is being taxed is entitled to his costs of taxation proceedings.
(2) The party liable to pay such costs may make a written offer to pay a sumis satisfaction of those costs within 7 days of delivery to him of a copy of thebill of costs.
(3) The Registrar may take such an offer into account.
Personal liability of solicitor for costs. (0.59, r.8).
8. (1) Subject to the following provisions of this rule, where anyproceeding costs are incurred improperly or without reasonable cause or arewasted by undue delay or by any other misconduct or default the Court may makeagainst any solicitor whom it considers to be responsible (whether personally orthrough a servant or agent) an order —
(a) disallowing the costs as between the solicitor and his client;and
(b) directing the solicitor to repay to his client costs which theclient has been ordered to pay to other parties to the proceedings; or
(c) directing the solicitor personally to indemnify such other partiesagainst cost payable by them.
(2) No order under this rule shall be made against a solicitor unless he hasbeen given a reasonable opportunity to appear before the Court and show causewhy the order should not be made, except where any proceeding in Court or in Chambers cannot conveniently proceed, and fails or is adjourned withoutuseful progress being made —
(a) because of the failure of the solicitor to attend in person orby a proper representative; or
(b) because of the failure of the solicitor to deliver any documentfor the use of the Court which ought to have been delivered or to be preparedwith any proper evidence or account or otherwise to proceed.
(3) Before making an order under this rule the Court may, if it thinks fit,refer the matter (except in the case of undue delay in the drawing up of, or inany proceedings under, any order or judgment as to which the Registrar hasreported to the Court) to the Registrar for inquiry and report and direct thesolicitor in the first place to show cause before him.
(4) The Court may, if it thinks fit, authorise the Attorney General toattend and take part in any proceedings or inquiry under this rule, and may makesuch order as it thinks fit as to the payment of his costs.
(5) The Court may direct that notice of any proceedings or order against asolicitor under this rule shall be given to his client in such manner as may bespecified in the direction.
(6) Where in any proceedings before the Registrar the solicitor representingany party is guilty of neglect or delay or puts any other party to anyunnecessary expense in relation to those proceedings, the Registrar may directthe solicitor to pay costs personally to any of the parties to thoseproceedings; and where any solicitor fails to leave his bill of costs (with the documents required by this Order) for taxation within the timefixed by an order of court or otherwise delays or impedes the taxation, then,unless the Registrar otherwise directs the solicitor shall not be allowed thefees to which he would otherwise be entitled for drawing his bill of costs andfor attending the taxation.
(7) If, on the taxation of costs to be paid out of a fund, one-sixth or moreof the amount of the bill for those costs is taxed off, the solicitor whose billit is shall not be allowed the fees to which he would otherwise be entitled fordrawing the bills and for attending the taxation.
Fractional or gross sum in place of taxed costs. (0.59, r.9).
9. (1) Subject to this Order, where by or under these Rules or anyorder or direction of the Court costs are to be paid to any person, that personshall be entitled to his taxed costs.
(2) Paragraph (1) shall not apply to costs which by or under any order ordirection of the Court —
(a) are to be paid to a receiver appointed by the High Court inrespect of his remuneration, disbursements or expenses; or
(b) are to be assessed or settled by the Registrar, but rules 27,30 and 31 shall apply in relation to the assessment or settlement by theRegistrar of costs which are to be assessed or settled as aforesaid.
(3) Where a writ in an action is indorsed in accordance with Order 6, rule2(1) (b) , and judgment is entered in default of appearance or of defencefor the amount claimed for costs (whether alone or together with any otheramount claimed), paragraph (l) of this rule shall not apply to those costs; butif the amount claimed for costs as aforesaid is paid in accordance with the indorsement (or is accepted by the plaintiff as if sopaid) the defendant shall nevertheless be entitled to have those coststaxed.
(4) The Court in awarding costs to any person may direct that instead oftaxed costs, that person shall be entitled —
(a) to a proportion specified in the direction of the taxed costsor to the taxed costs from or up to a stage of the proceedings so specified;or
(b) to a gross sum so specified in lieu of taxed costs.
When a party may sign judgment for costs without an order. (0.59,r.10).
10. (1) Where a plaintiff by notice in writing and without leave either wholly discontinues his action against any defendant or withdrawsany particular claim made by him therein against any defendant, the defendantmay tax his costs of the action of his costs occasioned by the matter withdrawn,as the case maybe, and, if the taxed costs are not paid within 4 days aftertaxation, may sign judgment for them.
(2) If a plaintiff accepts money paid into Court in satisfaction of thecause of action, or all the causes of action, in respect of which he claims, orif he accepts a sum or sums paid in respect of one or more specified causes ofaction and gives notice that he abandons the others, then subject to paragraph(4), he may, after 4 days from payment out and unless the Court otherwiseorders, tax his costs incurred to the time of receipt of the notice of paymentinto Court and 48 hours after taxation may sign judgment for his taxedcosts.
(3) Where a plaintiff in an action for libel or slander against severaldefendants sued jointly accepts money paid into Court by one of the defendants,he may, subject to paragraph (4), tax his costs and sign judgment for them against that defendant inaccordance with paragraph (2).
(4) Where money paid into Court in an action is accepted by the plaintiffafter the trial or hearing has begun, the plaintiff shall not be entitled to taxhis costs under paragraph (2) or (3).
When order for taxation of costs not required. (0.59, r.11).
11. (1) When an action, petition or summons is dismissed with costs,or a motion is refused with costs, or an order of the Court directs the paymentof any costs, or any party is entitled under rule 10 to tax his costs, no orderdirecting the taxation of those costs need be made.
(2) Where a summons is taken out to set aside with costs any proceeding onthe ground of irregularity and the summons is dismissed but no direction isgiven as to costs, the summons is to be taken as having been dismissed withcosts.
Powers of Registrar to tax costs. (0.59, r.12).
12. The Registrar shall have power to tax —
(a) the costs of or arising out of any cause or matter in theCourt;
(b) the costs directed by an award made on a reference toarbitration under any written law or pursuant to an arbitration agreement to bepaid;
(c) any other costs the taxation of which is directed by an order ofthe Court;
and
(d) any costs directed to be taxed or settled by or under anywritten law.
Supplementary powers of Registrar. (0.59, r.13).
13. The Registrar may, in the discharge of his functions with respectto the taxation of costs —
(a) take an account of any dealings in money made in connect withthe payment of the costs being taxed, if the Court so directs;
(b) require any party represented jointly with any other party in any proceedings before him to be separately represented;
(c) examine any witness in those proceedings;
(d) direct the production of any document which may be relevant inconnection with those proceedings.
Extension etc. of time. (0.59, r.14).
14. (1) The Registrar may —
(a) extend the period within which a party is required by or underthis Order to begin proceedings for taxation or to do anything in or in connection with proceedings before the Registrar;
(b) where no period is specified by or under this Order or by theCourt for the doing of anything in or in connection with such proceedings,specify the period within which the thing is to be done.
(2) Where an order of the Court specifies a period within which anything isto be done by or before the Registrar then, unless the Court otherwise directs,the Registrar may from time to time extend the period so specified on such terms(if any) as he thinks just.
(3) The Registrar may extend any such period as is referred to in theforegoing provisions of this rule although the application for extension is notmade until after the expiration of that period.
Interim certificates. (0.59, r.15).
15. (1) The Registrar may from time to time in the course of thetaxation of any costs by him issue an interim certificate for any part of thosecosts which has been taxed.
(2) If, in the course of the taxation of a solicitor’s bill to his ownclient, it appears to the Registrar that in any event the solicitor will beliable in connection with that bill to pay money to the client, he may from timeto time issue an interim certificate specifying an amount which in his opinionis payable by the solicitor to his client.
(3) On the filing of a certificate issued under paragraph (2) the Court mayorder the amount specified therein to be paid forthwith to the client or intocourt.
Power of Registrar where party liable to be paid and to pay costs. (0.59,r.16).
16. Where a party entitled to be paid costs is also liable to paycosts, the Registrar may —
(a) tax the costs which that party is liable to pay and set off theamount allowed against the amount he is entitled to be paid and direct paymentof any balance; or
(b) delay the issue of a certificate for the costs he is entitledto be paid until he has paid or tendered the amount he is liable to pay.
Taxation of bill of costs comprised in account. (0.59, r.17).
17. (1) Where the Court directs an account to be taken and theaccount consists in part of a bill of costs, the Court may direct the Registrarto tax those costs and the Registrar shall tax the costs in accordance with thedirection and shall return the bill of costs, after taxation thereof, togetherwith his report thereon to the Court.
(2) The Registrar taxing a bill of costs in accordance with a directionunder this rule shall have the same powers, and the same fees shall be payablein connection with the taxation as if an order for taxation of the costs hadbeen made by the Court.
Registrar to fix certain fees payable to conveyancing counsel etc. (0.59,r.18).
18. (1) Where the Court refers any matter to any solicitor or obtainsthe assistance of any other person under Order 32, rule 12, the fees payable tothe solicitor or that other person in respect of the work done by him inconnection with the reference or, as the case may be, in assisting the Courtshall be fixed by the Registrar.
(2) An appeal from the decision of the Registrar under this rule shall lieto the Court, and the decision of the Court thereon shall be final.
Litigants in person. (0.59, r.18A). [S 8/99]
18A. On a taxation of the costs of a litigant in person, there may beallowed such costs as would reasonably compensate the litigant for the timeexpended by him, and all expenses reasonably incurred.
Fees for more than one counsel. (0.59, r.19).
19. (1) Fees for more than one counsel for one party or set ofdefendants shall not be allowed unless the Court or Judge at the hearing orwithin seven days so certifies.
(2) Such fees may be allowed notwithstanding that both counsel are membersof the same firm of solicitors.
Procedure on Taxation
Mode of beginning proceedings for taxation. (0.59, r.20).
20. A party entitled to require any costs to be taxed must beginproceedings for the taxation of those costs by producing at the Registry thebill of costs and a copy thereof together with all necessary papers andvouchers.
Notification of time appointed for taxation. (0.59, r.21).
21. (1) Where proceedings for taxation have been duly begun inaccordance with rule 20, then, subject to paragraph (2) of this rule and rule 23, the Registrarshall give to the party beginning the proceedings and to any other party entitled to be heard in the taxation proceedings, not less than 7days’ notice of the day and time appointed for taxation.
(2) A notice under this rule need not be given to any party who has notentered an appearance or taken any part in the proceedings which gave rise tothe taxation proceedings:
Provided that this paragraph shall not apply where an order for the taxation of a solicitor’s bill of costs made under the LegalProfession Act (Chapter 132), at the instance of the solicitor gave rise to thetaxation proceedings.
Delivery of bills etc. (0.59, r.22).
22. A party whose costs are to be taxed in any taxation proceedings,except a solicitor whose costs are to be taxed by virtue of an order made underthe Legal Profession Act (Chapter 132), must within 2 days after receiving a notice under rule 21(1)send a copy of his bill of costs to every other party entitled to be heard inthe proceedings unless that party has not entered an appearance or taken anypart in the proceedings which gave rise to the taxation proceedings.
Short and urgent taxation. (0.59, r.23).
23. (1) Where a party entitled to require taxation of any costs of orarising out of proceedings in the Court begins proceedings for the taxation ofthose costs in accordance with rule 20 then if, when he begins such proceedings,he satisfies the Registrar —
(a) that, in view of the amount of any bill of costs to be taxed,the time required for taxation is likely to be short; and
(b) that the speedy completion of the taxation is necessary in theinterest of any person concerned in the taxation,
the Registrar shall enter the proceedings for taxation in a list kept for thepurpose of this rule and shall forthwith give notice of the day and timeappointed for taxation to the party whose costs are to be taxed.
(2) A party whose costs are to be taxed in proceedings entered for taxationin the list referred to in paragraph (1) must —
(a) at the time when the proceedings are so entered, deliver to theRegistrar any bill of costs to be taxed in the proceedings; and
(b) subject to paragraph (3) not less than 2 days before the dayappointed for taxation send a copy of his bill of costs to every other partyentitled to be heard in the proceedings with a notice of the day and timeappointed for taxation.
(3) A notice under paragraph (2) need not be given to any party who has notentered an appearance or taken any part in the proceedings which gave rise to the taxation proceedings.
Form of bill of costs. (0.59, r.24).
24. (1) A bill of costs must distinguish, by insertion in separatecolumns, costs out of pocket from charges for work done and time expended, andshowing by a statement, where the bill of costs is to be taxed between solicitorand client, all sums of money received from or agreed to be paid by the clientin respect of the cause or matter under taxation, or in connectiontherewith.
(2) Dates must be furnished to each item, but they shall be kept within thebody of the bill, so as to leave the left hand margin for deduction.
(3) Every bill must be headed in the cause or matter to which the samerelates, with the name of the party whose bill it is, and the judgment,direction or order under which the same is to be taxed, and whether the same isto be taxed between party and party or solicitor and client.
(4) A bill of costs must be indorsed with the name or firm and businessaddress of the solicitor whose bill it is.
Provisions as to taxation proceedings. (0.59, r.25).
25. (1) If any party entitled to be heard in any taxation proceedingsdoes not attend within a reasonable time after the time appointed for thetaxation, the Registrar if satisfied by affidavit or otherwise that the partyhad due notice of the time appointed, may proceed with the taxation.
(2) The Registrar by whom any taxation proceedings are being conducted may,if he thinks it necessary to do so, adjourn those proceedings from time totime.
Powers of Registrar taxing costs payable out of fund. (0.59,r.26).
26. (1) Where any costs are to be paid out of a fund the Registrarmay give directions as to the parties who are entitled to attend on the taxationof those costs and may disallow the costs of attendance of any party notentitled to attend by virtue of the directions and whose attendance he considersunnecessary.
(2) Where the Court has directed that a solicitor’s bill of costs betaxed for the purpose of being paid out of a fund the Registrar by whom the billis being taxed may, if he thinks fit, adjourn the taxation for a reasonableperiod and direct the solicitor to send to any person having an interest in thefund a copy of the bill, or any party thereof, free of charge together with aletter containing the following information, that is to say —
(a) that the bill of costs, a copy of which or of part of which issent with the letter has been referred to the Registrar for taxation;
(b) that the taxation will take place at the Chambers of theRegistrar;
(c) the time appointed by the Registrar at which the taxation will becontinued;
and
(d) such other information, if any, as the Registrar maydirect.
Assessment of Costs
Costs payable to one party by another or out of a fund. (0.59,r.27).
27. (1) This rule applies to costs which by or under these Rules orany order or direction of the Court are to be paid to a party to any proceedingseither by another party to those proceedings or out of any fund (other than afund which the party to whom the costs are to be paid holds as trustee orpersonal representatives).
(2) Subject to the following provisions of this rule, costs to which thisrule applies shall be taxed on the party and party basis, and on a taxation onthat basis there shall be allowed all such costs as were necessary or proper forthe attainment of justice or for enforcing or defending the rights of the partywhose costs are being taxed.
(3) The Court in awarding costs to which this rule applies may in any casein which it thinks fit to do so order or direct that the costs shall be taxed onthe common fund basis.
(4) On a taxation on the common fund basis, being a more generous basis thanthat provided for by paragraph (2), there shall be allowed a reasonable amountin respect of all costs reasonably incurred, and paragraph (2) shall not apply;and accordingly in all cases where costs are to be taxed on the common fundbasis the ordinary rules applicable on a taxation as between solicitor andclient where the costs are to be paid out of a common fund in which the clientand others are interested shall be applied, whether or not the costs are in factto be so paid.
(5) The Court in awarding costs to which this rule applies to any person mayif it thinks fit and if —
(a) the costs are to be paid out of a fund; or
(b) the person to whom the costs are to be paid is or was a party to the proceedings in the capacity of trustee or personalrepresentative,
order or direct that the costs shall be taxed as if the person were a trusteeof the fund or as if the costs were to be paid out of a fund held by thatperson, as the case may be, and where the Court so orders or directs rule 30(2) shall have effect in relation to the taxation in substitution forparagraph (2) of this rule.
(6) Notwithstanding the foregoing provisions of this rule, if any action isbrought in the High Court, which would have been within the jurisdiction of aSubordinate Court (Chapter 6), or in which the plaintiff recovers by Judgment a sum notexceeding $20,000, the plaintiff shall not be entitled to any more costs than hewould have been entitled to if the proceedings had been brought in a SubordinateCourt (Chapter 6), unless in any such action a Judge certifies that there wassufficient reason for bringing the action in the High Court.
[S 8/99]
Costs payable to a solicitor by his own client. (0.59, r.28).
28. (1) On the taxation of a solicitor’s bill to his own client(except a bill with respect to non-contentious business) all costs shall beallowed except in so far as they are of an unreasonable amount or have beenunreasonably incurred.
(2) For the purpose of paragraph (1), all costs incurred with the express orimplied approval of the client shall, subject to paragraph (3), be conclusivelypresumed to have been reasonably incurred and, where the amount thereof has been expressly or impliedly approved by the client, to have beenreasonable in amount.
(3) For the purpose of paragraph (1), any costs which in the circumstancesof the case are of an unusual nature and such that they would not be allowed ona taxation of costs in a case to which rule 27(2) applies, shall, unless thesolicitor expressly informed his client before they were incurred that theymight not be so allowed, be presumed, until the contrary is shown, to have beenunreasonably incurred.
(4) In paragraphs (2) and (3), references to the client shall be construed—
(a) if the client was at the material time incapable by reason ofunsoundness of mind for managing and administering his property and affairs andrepresented by a person acting as guardian ad litem or next friend, asreferences to that person acting, where necessary, with the authority of theauthority having jurisdiction under that Act;
(b) if the client was at the material time an infant andrepresented by a person acting as guardian ad litem or next friend, asreferences to that person.
Costs payable to solicitor where money recovered by or on behalfof infant etc.
(0.59, r.29).
29. (1) This rule applies to —
(a) any proceedings in which money is claimed or recovered by or onbehalf of, or adjudged or ordered or agreed to be paid to, or for the benefitof, a person who is an infant or incapable by reason of unsoundness of mind of managing and
administering his property and affairs or in which money paid into Court isaccepted by or on behalf of such a person; and
(b) any proceedings in which money is recovered by or on behalf of, or adjudged or ordered or agreed to be paid to, or for the benefitof, the widow of the person whose death gave rise to the proceedings insatisfaction of a claim or in which money paid into Court is accepted by her oron her behalf in satisfaction of such a claim, if the proceedings were for thebenefit also of a person who, when the money is recovered, or adjudged orordered or agreed to be paid, or accepted, is an infant; and
(c) any proceedings in the Court of Appeal on an application or appealmade in connection with any proceedings to which this rule applies by virtue of the foregoing provisions of this paragraph.
(2) The costs payable to his solicitor by any plaintiff in any proceedingsto which this rule applies by virtue of paragraph 1 (a) or (b) ,being the costs of those proceedings or incident to the claim therein orconsequent thereon, shall be taxed under rule 28; and no costs shall be payableto the solicitor of any plaintiff in respect of those proceedings except suchamount of costs as may be certified in accordance with this rule on the taxationunder rule 28 of the solicitor’s bill to the plaintiff.
(3) On the taxation under rule 28 of a solicitor’s bill to any plaintiff in any proceedings to which this rule applies by virtue ofparagraph 1 (a) or (b) who is his own client, the Registrar shallalso tax any costs payable to that plaintiff in those proceedings and shallcertify —
(a) the amount allowed on the taxation under rule 28, the amountallowed on the taxation of any costs payable to that plaintiff in thoseproceedings and the amount (if any) by which the first mentioned amount exceedsthe other; and
(b) where necessary, the proportion of the amount of the excess payable respectively by, or out of money belonging to, any party to theproceedings who is an infant or incapable, by reason of unsoundness of mind of managing and administering his property and affairs of the widow ofthe man whose death gave rise to the proceedings and any other party.
(4) Paragraphs (2) and (3) shall apply in relation to any proceedings towhich this rule applies by virtue of paragraph (1) (c) as if forreferences to a plaintiff there were substituted references to the party,whether appellant or respondent, who was the plaintiff in the proceedings whichgave rise to the first mentioned proceedings.
(5) Nothing in the foregoing provisions of this rule shall prejudice asolicitor’s lien for costs.
(6) The foregoing provisions of this rule shall apply in relation to—
(a) a counterclaim by or on behalf of a person who is an infant orincapable by reason of unsoundness of mind of managing and administering hisproperty and affairs and a counterclaim consisting of or including a claim by oron behalf of the widow of the man whose death gave rise to the claim; and
(b) a claim made by or on behalf of a person who is an infant orincapable as aforesaid in an action by any other person for relief under theMerchant Shipping Act (Chapter 145) and a claim consisting of or including aclaim made by or on behalf of that widow in such an action,
as if for references to a plaintiff there were substituted references to adefendant.
Costs payable to a trustee out of the trust fund etc. (0.59,r.30).
30. (1) This rule applies to every taxation of the costs which aperson who is or has been a party to any proceedings in the capacity of trusteeor personal representative is entitled to be paid out of any fund which he holdsin that capacity.
(2) On any taxation to which this rule applies, no costs shall bedisallowed, except in so far as those costs or any part of their amount shallnot, in accordance with the duty of the trustee or personal representative assuch, have been incurred or paid, and should for that reason be borne by himpersonally.
Scale of costs. (0.59, r.31).
31. (1) Subject to the foregoing rules and the following provisionsof this rule, the scale of costs contained in Appendix 1 to this Order, together with the notes and general provisions contained in that Appendix,shall apply to the taxation of all costs incurred in relation to contentiousbusiness done on or after the coming into force of these Rules.
(2) On a taxation in relation to which rule 28 or 30(2) has effect and inother special cases costs may at the discretion of the Registrar be allowed—
(a) in relation to items not mentioned in the said scale; or
(b) of an amount higher than that prescribed by the said scale.
(3) Where the amount of a solicitor’s remuneration in respect ofnon-contentious business connected with scales, purchases, leases, charges and other matters of conveyancing or in respect of any other non-contentious business is regulated (in the absence of agreementto the contrary) by any written law, the amount of the costs to be allowed on taxation in respect of the like contentious business shall be the same, notwithstanding anything in the scale contained in Appendix 1 to thisOrder.
(4) Notwithstanding paragraph (1) costs shall, unless the Court otherwiseorders, be allowed in the causes to which Appendix 2 to this Order applies inaccordance with the provisions of that Appendix.
Certificate
Certificate. (0.59, r.32).
32. When the bill has been taxed the solicitor shall cast up thedeductions therefrom, which, with the casting of the bill, shall be checked bythe Registrar, and the Registrar shall proceed to make his certificate orallocatur for the amount of such costs less the deduction.
Certificate of Registrar to be conclusive unless set aside. (0.59,r.33).
33. Upon the taxation of the bill the certificate of the Registrar,unless set aside, shall be conclusive as to the amount thereof, and where theorder contains a submission to pay, the solicitor may after forty-eight hours,if there is no application for review, issue execution for the same.
Review
Application to Registrar for review. (0.59, r.34).
34. (1) Any party to any taxation proceedings who is dissatisfiedwith the allowance or disallowance in whole or in part of any item by theRegistrar, or with the amount allowed by the Registrar in respect of any item,may apply to the Registrar to review his decision in respect of that item.
(2) An application under this rule for review of the Registrar’sdecision may be made at any time within 14 days after that decision or suchshorter period as may be fixed by the Registrar.
(3) Every applicant for review under this rule must at the time of making his application deliver to the Registrar objections in writingspecifying by a list the items or parts of items the allowance or disallowanceof which or the amount allowed in respect of which is objected to and statingconcisely the nature and grounds of the objection in each case, and must delivera copy of the objections to each other party (if any) who attended on thetaxation of those items or to whom the Registrar directs that a copy of theobjections shall be delivered.
(4) Any party to whom a copy of the objection is delivered under this rulemay, within 14 days after delivery of the copy to him or such shorter period asmay be fixed by the Registrar, deliver to the Registrar answers in writing tothe objections stating concisely the grounds on which he will oppose theobjections, and must at the same time deliver a copy of the answers to the partyapplying for review and to each other party (if any) to whom a copy of theobjections has been delivered or to whom the Registrar directs that a copy ofthe answers shall be delivered.
(5) An application under this rule for review of the Registrar’sdecision in respect of any item shall not prejudice the power of the Registrarunder rule 15 to issue an interim certificate in respect of items his decisionas to which is not object to.
Review by Registrar. (0.59, r.35).
35. (1) On reviewing any decision in respect of any item, theRegistrar may receive further evidence and may exercise all the powers which hemight exercise on an original taxation in respect of that item, including thepower to award costs of and incidental to the proceedings before him; and anycosts awarded by him to any party may be taxed by him and may be added to ordeducted from any other sum payable to or by that party in respect of costs.
(2) On a hearing of a review under rule 34 a party to whom a copy ofobjections was delivered under paragraph (4) of that rule shall be entitled tobe heard, with the leave of the Registrar, in respect of any item to which theobjections relate notwithstanding that he did not deliver written answers to theobjections under that paragraph.
(3) The Registrar who has reviewed a decision in respect of any item shallissue his certificate accordingly and, if requested to do so by any party to theproceedings before him, shall state in his certificate or otherwise in writingby reference to the objections to that decision the reasons for his decision onthe review, and any special facts or circumstances relevant to it.
A request under this paragraph must be made within 14 days after the reviewor such shorter period as may be fixed by the Registrar.
Review of Registrar’s certificate by a Judge. (0.59, r.36).
36. (1) Any party who is dissatisfied with the decision of theRegistrar to allow or to disallow any item in whole or in part on review underrule 34 or 35, or with the amount allowed in respect of any item by theRegistrar on any such review, may apply to a Judge for an order to review thetaxation as to that item or part of an item, if, but only if, one of the partiesto the proceedings before the Registrar requested the Registrar in accordancewith rule 35(3) to state the reasons for his decision in respect of that item orpart on the review.
(2) An application under this rule for review of the Registrar’sdecision in respect of any item may be made at any time within 14 days, or suchlonger time as the Registrar at the time when he signs the certificate or theCourt at any time, may allow.
(3) An application under this rule shall be made by summons and shall,except where the Judge thinks fit to adjourn into Court, be heard inChambers.
(4) Unless the Judge otherwise directs, no further evidence shall bereceived on the hearing of an application under this rule, and no ground ofobjection shall be raised which was not raised on the review by the Registrarbut, save as aforesaid, on the hearing of any such application the Judge mayexercise all such powers and discretion as are vested in the Registrar inrelation to the subject matter of the application.
(5) On an application under this rule the Judge may make such order as the circumstances require, and in particular may order the Registrar’s certificate to be amended or, except where the dispute as to the item under review is as to amount only, order the item to be remitted to the Registrar for taxation.
APPENDIX 1
[S 8/99]
SCALE OF COSTS
PART I
INSTITUTION ETC. OF PROCEEDINGS
1. Drawing, issuing, filing and service on one party of writ of summons (including statement of claim indorsed thereon), third party notice ....$120.00 to $360.00
2. Issued and service on one party, of concurrent writ of summons or originating summons ...$30.00
Note to items 1 and 2 —
Reference in these items to service on one party of a writ of summons shall,in relation to a writ of summons issued in an Admiralty action in rem , be construed as references to service of the writ on a ship or on the Registrar, as the circumstances of the case require.
3. Renewing writ of summons issued —
(a) in Admiralty action ...$240.00
(b) in any other action .....$104.00
including drawing and filing application and affidavit, attending on application for renewal and obtaining other.
4. Drawing, presenting, filing and service on one party of a petition, originating summons and notice of originating motion .....$120.00 to $360.00
Or if special ...... Discretionary
5. Drawing, issuing, filing and service on one party of notice of motion (other than an originating motion) .......$60.00 to $200.00
6. Drawing, filing and service on one party of —
(a) case or special case stated by party or parties to any cause or matter ..... Discretionary
(b) case or special case stated by inferior court of civil jurisdiction, statutory tribunal, Board of Review under any Act, arbitrator or umpire ..... Discretionary
(c) notice of appeal (including notice of the grounds of the appeal) from decision given on an investigation or inquiry under Part VI
of the Merchant Shipping Act ..... Discretionary
Note to item 6 —
This item includes service on one party of notice that the case referred to in paragraph (b) thereof has been entered for hearing.
7. Drawing, filing and service on one party of statement of claim(if not indorsed on writ), or other pleading, answer to petition, claim in a reference under Order 70, rule 39 ...$400.00 to $700.00
8. Drawing, filing and service on one party of particulars of pleading and drawing and service on one party of request for such particulars .....$60.00 to $400.00
9. Drawing and filing of preliminary act, drawing notice of filing and service on one party of such notice .... Discretionary
10. Drawing amendment of document referred to item 1, 4, 5 or 7, filing and service on one party of amended document .......$40.00 to $120.00
11. Drawing of notice of writ of summons for service out of jurisdiction ...$30.00
12. Drawing, issuing and filing any document, attending on any application and doing any other work necessary to obtain —
(a) order for substituted service of any document;
(b) order giving leave to serve any document out of the jurisdiction, and obtaining order ....... Discretionary
PART II
PROCEEDINGS IN CHAMBERS AND INTERLOCUTORY MATTERS IN OPEN COURT
13. Drawing, issuing, filing and service on one party of summons—
(a) to proceed under a judgment or order ......$50.00
(b) for order in terms of annexed minutes .....$50.00
(c) to extend time ......$50.00
14. Drawing, issuing, filing and service on one party of summons for directions or notice under Order 25, rule 7 —
(a) in Admiralty Action ........ Discretionary
(b) in any other action .....$50.00 to $120.00
15. Drawing, issuing, filing and service on one party of summons to attend at Chambers (other than summons referred to in item 13) .....$60.00 to $120.00
16. Drawing brief on an interlocutory application or on further consideration thereof including copy for counsel .......$40.00 to $300.00
17. Attending to obtain appointment for hearing before Judge or Registrar ...$30.00
18. Attending to deliver papers required for use of Judge or Registrar in Chambers .....$30.00
19. Attending hearing of summons or application in Chambers ...$100.00 to $480.00
OR
Fee in lieu of counsel’s fee, where no counsel is briefed ........ Discretionary
20. Attending —
(a) to settle draft or minutes of any decree or order ........$40.00
or
(b) at the Registrar’s discretion not to exceed .....$160.00
21. Attending to draw up and enter any order, where item 20 does not apply ........$20.00
PART III
DISCOVERY AND INSPECTION
22. Drawing, filing and service of —
(a) affidavit of documents or list of document )
(b) interrogatories for examination of a party) ....$120.00 to $500.00
(c) affidavit in answer to inter rogatories )
including when appropriate, attending )
deponent to be sworn and copy for service )
23. Attending to inspect, or produce for inspection, documents production of which for inspection is required by order of the Court or by virtue of any provision of Order 24 —
(a) for the first hour or part of an hour ....$40.00
(b) for every subsequent half hour or part thereof .....$20.00
PART IV
PREPARATION FOR TRIAL OR HEARING, WHETHER IN OPEN COURT OROTHERWISE
24. Drawing and issue of —
(a) writ of subpoena ad testificandum for one, two or three witnesses .....$60.00
(b) writ of subpoena dues tecum , for each witness ....$60.00
including filing of praecipe, attending to obtain writ and copy of service.
Where the writ mentioned in paragraph (a) is for more than one witness, cop for service on each additional witness ...$60.00
25. Drawing and service of notice —
(a) to produce for inspection document referred to in pleading or affidavit ......$30.00
(b) to produce document at trial or hearing ...$30.00
(c) to admit any document or fact .....$30.00
including copy for service.
26. Instructions for trial or hearing of any cause or matter, whatever the mode of trial or hearing ... Discretionary
27. Instructions for appeal from an interlocutory or final order or judgment ....... Discretionary
Note to items 26 and 27 —
These items are intended to cover the doing of any work, not otherwise provided for, necessarily or properly done in preparing for a trial, hearing or appeal, or before a settlement of the matters in dispute, including —
(a) taking instructions to sue, defend, counterclaim or appeal, or for any pleading, particulars of pleading, affidavit, preliminary act or claim in a reference under Order 70, rule 39;
(b) considering the facts and law;
(c) attending on and corresponding with client;
(d) interviewing and corresponding with witnesses and potential witnesses and taking proofs of their evidence;
(e) arranging to obtain reports or advice from experts and plans,photographs and models;
(f) making search in a Government Office and elsewhere for relevant documents;
(g) inspecting any property or place material to the proceedings;
(h) perusing pleadings, affidavits and other relevant documents;
(i) where the cause or matter does not proceed to trial or hearing,work done in connection with the negotiation of a settlement; and
(j) the general care and conduct of the proceedings.
28. Drawing instructions to counsel to advise in writing or in conference including copy for counsel .......$40.00 to $300.00
29. Attending counsel in conference ....$100.00
And for every half hour beyond the first hour$40.00
Note to item 29 —
This item includes attending to make appointment for conference.
30. Drawing brief with observations to counsel and proofs of evidence, per folio .....$6.00
31. Attending to obtain appointment to examine witness and on examination of witness before any commissioner, officer of the Court or other person appointed to examine him under Order 70, rule 29 ....$300.00 to 600.00 per day
PART V
TRIAL OR HEARING
32. Attending in open Court for purpose of —
(a) any application relating to or consequent on trial or hearing of a cause or matter —
(i) where counsel is briefed .......$100.00 to $600.00
(ii) where no counsel is briefed ........$500.00 to $1,500.00
(b) trial or hearing of a cause of matter for each day —
(i) where counsel is briefed ........$100.00 to $600.00
(ii) where no counsel is briefed ........$500.00 to $1,500.00
(c) hearing deferred judgment .....$100.00 to $400.00
33. Attending to obtain certificate of Registrar, and attending to enter or obtain judgment, other than judgment given in Admiralty cause or matter ........$20.00
34. Attending under Order 70, rule 39, to obtain judgment in Admiralty cause or matter, decision on reference and grounds of decision ...$20.00
PART VI
TAXATION
35. Drawing bill of costs and notice of taxation
(including copy for Registrar), per folio .....$4.00
36. Obtaining appointment for taxation .....$20.00
37. Attending taxation, completing bill of costs,producing vouchers for disbursements and attending to obtain Registrar’s Certificate or order$60.00 to $300.00
38. Drawing objection to decision of Registrar on taxation, or answers to objections, including copies for service and filing, delivery to one party of such objections or answers and attending hearing of review by Registrar ......$60.00 to $300.00
PART VII
EXECUTION
39. Drawing, and attending to obtain —
issue of writ of execution or other writ to enforce any judgment or order ......$40.00
Necessary copies of any such writ shall be allowed.
40. Renewing writ of execution including drawing and filing application and affidavit, attending on application for renewal and obtaining order .....$100.00
PART VII
GENERAL AND MISCELLANEOUS
41. To obtain —
Attendances
(a) consent of person to act as next friend or guardian ad litem and consent or approval of any other interested party ......$40.00 to $80.00
(b) any other consent .......$20.00
Note to item 41 —
This item includes drawing the form of consent or approval.
42. To give consent ......$20.00
43. To enter appearance .....$30.00
If appearance entered for more than one person at the same time, for each additional person ........$4.00
Note to item 43 —
This item includes copy and service of notice of appearance.
44. To search —
(a) for appearance .....$20.00
(b) for appearance and to obtain certificate of non-appearance ...$20.00
45. To register memorandum of a lis pendens ........$20.00
Note to item 45 —
This item shall not be allowed on a taxation of costs in accordance with rule27(2).
46. At the Registry to file any necessary document .....$20.00
47. At the Registry to bespeak or search for affidavit ..$20.00
48. To enter order amending record by striking out or adding a party or consolidating causes or matters ..$20.00
49. To —
(a) set down action, summons or appeal for trial or hearing ......$20.00
(b) enter special case, or set down point of law, for argument .......$20.00
(c) enter for hearing case or special case stated ...$20.00
(d) enter for hearing reference to the Registrar ...$20.00
50. On the appropriate officer to certify that cause or matter set down for trial or hearing is settled or is for any other reason not to be included in list for trial or hearing ........$20.00
51. On a deponent swearing, or solicitor or clerk deposing to, any affidavit other than an affidavit of service ........$20.00
52. To examine title deeds in connection with any cause or matter, per hour ....$50.00
53. To produce deeds for examination in connection with any cause of matter—
(a) for the first hour or part thereof ...$40.00
(b) for each subsequent half hour or part thereof ... $20.00
54. To obtain certificates of birth, marriage or death, for every 3 certificates obtained at the same Registry at the same time ...$20.00
55. On printer to insert advertisement in Government Gazette or other paper, for each publication .....$20.00
56. On counsel with brief, case for written opinion or instruction to settle any document ........$20.00
Or where counsel’s fee is $200 or more .....$30.00
57. Other proper and necessary attendances not provided for or allowed under any other item ........$20.00
58. On the solicitor for the other party when necessary$20.00
Attendances etc. at the Treasury’s
Office of the Registry
59. To obtain directions for lodgment of money in Court, and at the Treasury and obtain receipt ...$20.00
60. To draw and lodge documents required to authorise payment out of money lodged in Court and to receive payment .......$20.00
61. To bespeak power of attorney to receive money out ofCourt, obtain execution of power, stamp and lodge it, receive money and send it to grantor ........ Discretionary
62. To indemnify person entitled to receive cheque .....$40.00
63. To lodge securities in Court or procure transfer of securities into or out of Court ... Discretionary
Note to item 63 —
This item includes all attendances required in connection with the lodgment or transfer and the preparation of any document so required.
64. To procure certificate, or re-dating of certificates, of funds in Court .....$20.00
Or where more than one certificate is procured or
re-dated at the same time .... Discretionary
65. To procure transcript of account .....$20.00
66. Drawing request for payment by post, obtaining signature and lodging request ...$20.00
67. Preparing, where person entitled to receive interest or other periodical payments, evidence of life or of the fulfilment of any conditions affecting the payments .... Discretionary
68. Drawing certificate required by the Treasury ... Discretionary
69. Procuring any necessary certificate for lodgment with the Treasury ....$30.00
Drawing Documents
70. Case for opinion of counsel before institution of proceedings including copy for counsel .....$40.00 to $400.00
71. Affidavit of service .......$80.00
Note to item 71 —
This item includes engrossing affidavit, attending to have it sworn and file it.
72. Affidavit, other than affidavit or service or affidavit under item 22, per folio ....$6.00
73. Preparation for making by Commissioner of Oaths of exhibit to affidavit, for each exhibit .......$8.00
74. Advertisement to be signed by Registrar, first folio$40.00
And thereafter per folio ......$20.00
Note to item 74 —
This item includes attending Chambers to obtain signature.
75. Minutes of order, accounts, statements and other documents required for use in Court or Chambers, per folio ......$6.00
76. Pedigree, for each completed ring ........$6.00
77. Memorandum of a lis pendens , including copy thereof ........$30.00
78. Drawing any necessary or proper document not otherwise provided, per folio ....$8.00
Note to item 78 —
This item shall not be allowed on a taxation of costs in accordance with rule27(2).
Notices etc.
79. Drawing or filing up a notice to a creditor requiring him to prove his claim or informing him that cheque may be received from the Treasury .....$4.00
80. Drawing any notice not otherwise provided for service or any request under Order 6, rule 4(3) ......$6.00
Copies etc.
81. Copy of document not otherwise provided for —
(a) typed copy, other than carbon copy, or written copy, per folio .....$4.00
(b) printed or carbon copy, per folio .......$2.00
(c) photographic copy ..... Discretionary
82. Examining proof print, per folio .....$2.00
Letters etc.
83. Letter not included under any other item ....$8.00
Or if long ........$12.00
Or if similar ....$6.00
Or if a circular letter ...$4.00
84. Long or special letters, messages and telephone calls not provided for or allowed under any other item ....... Discretionary
Perusal
85. Perusing any document not provided for or allowed under any other item, per folio ......$4.00
Service
86. Where more than one attendance is necessary to effect service on, or delivery to, one party of document referred to in Part I of this Appendix or in item 13, 14, 15 or 38 thereof, or where service is effected within the jurisdiction otherwise than by personal attendance or by post or is effected out of the jurisdiction ........ Discretionary
87. Where document referred to in Part I of this Appendix or in item 13, 14, 15 or 38 thereof is required to be served on, or delivered to, more than one person, service on, or delivery to, each additional person —
(a) if required to be served personally or delivered .......$20.00 to $60.00
(b) if service by post authorised ........$12.00
88. Service or delivery of any document, not provided for or allowed under any other item —
(a) if required to be served personally or delivered .......$20.00
(b) if service by post authorised ........$12.00
In addition to the amount allowed under paragraph (a) hereof, a mileage allowance in respect of each mile after the first two miles between the place at which service or delivery is effected and the nearest place of business of the solicitor effecting it .....$4.00
PART IX
ADDITIONAL PROCEEDINGS ARISING ONLY IN CONNECTION WITH ADMIRALTY CAUSESAND MATTERS
89. Procuring issue and service of warrant of arrest .....$240.00
Note to item 88 —
This item includes procuring the warrant, affidavits, and other documents required in connection with the issue and service of the warrant and any attendances required to procure its issue and service, the swearing of any such affidavit and the filing of any such document.
90. Procuring issue of instrument of release under Order 70, rule 12....$240.00
Note to item 90 —
This item includes drawing the instrument and other documents required in connection with the issue of the instrument,obtaining any consent so required and any attendances required to procure the issue of the instrument and the filing of any such document.
91. Procuring entry, renewal or withdrawal of caveat against the issue of a warrant, the release of property or the payment of money out of Court .....$40.00
Note to item 91 —
This item includes drawing and filing any document required to procure the entry, renewal or withdrawal and any attendances so required.
92. Giving bail —
(a) one surety ......$280.00
(b) two sureties ...$300.00
Note to item 92 —
This item includes drawing the bail bond, affidavits and other documents required in connection with the giving of bail and any attendances required to procure the signing of the bond, the swearing of any such affidavit and the filing and service of any such document.
93. Giving guarantee or undertaking in lieu of bail ......$160.00
Note to item 93 —
This item includes preparing the guarantee or undertaking and any attendances required to procure the signing and stamping thereof.
Note to item 92 and 93 —
The commission or fee paid to a person becoming surety to a bail bond or giving a guarantee or undertaking in lieu of bail, not exceeding $9 per cent of the amount for which the bond, guarantee or undertaking is given, shall be allowed on taxation.
94. Obtaining bail ...$140.00
Note to item 94 —
This item includes perusing notice of bail and other relevant documents and any attendance to make enquiries as to sufficiency of sureties or to ensure that documents relating to bail have been filed.
95. Obtaining —
(a) guarantee in lieu of bail ...$140.00
(b) undertaking in lieu of bail .....$80.00
Note to item 95 —
This item includes perusing the guarantee or undertaking and other relevant documents.
96. Procuring the issue and execution of commission of appraisement or of appraisement and sale ....$120.00
Note to item 96 —
This item includes drawing and filing any document required in connection with the issue and execution of the commission and any attendances so required.
97. Attending adverse solicitor to limit questions in dispute on reference under Order 70, rule 39 ...$120.00
And for every half hour beyond the first ....$60.00
98. Negotiating agreement under Order 70, rule 33 ..... Discretionary
Note to item 98 —
This item includes taking instructions in connection with the agreement, drawing and filing the agreement and any attendances required in connection with the negotiation, making and filing of the agreement.
99. Negotiating agreement with respect to amount of damages, interest or other sums payable by opposite party ... Discretionary
Note to item 99 —
This item includes any attendances and other work done in connection with the calculation of, and in obtaining agreement as to, the amount payable.
PART X GENERAL
Discretionary costs.
1. (1) Where in the foregoing provisions of this Appendix there is entered in the second column against any item specified in the first column either an upper and a lower sum of money or the word“Discretionary”, the amount of costs to be allowed in respect of that item shall (subject to any order of the Court fixing the costs to be allowed) be in the discretion of the Registrar, within the limits of the sums so entered, if any.
(2) In exercising his discretion under this paragraph or under rule 31(2) in relation to any item, the Registrar shall have regard to all relevant circumstances, and in particular to —
(a) the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved;
(b) the skill, specialised knowledge and responsibility required of, and the time and labour expended by, the solicitor or counsel;
(c) the number and importance of the documents (however brief) prepared or perused;
(d) the place and circumstances in which the business involved is transacted;
(e) the importance of the cause or matter to the client;
(f) where money or property is involved, its amount or value;
(g) any other fees and allowances payable to the solicitor or counsel in respect of other items in the same cause or matter, but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question.
Fees to counsel.
2. (1) No fee to counsel shall be allowed unless —
(a) before taxation its amount has been agreed by the solicitor instructing counsel; and
(b) before the Registrar issues his certificate a receipt for the fees signed by counsel is produced.
(2) No retaining fee to counsel shall be allowed on any taxation of costs in relation to which rule 27(2) has effect.
(3) No costs shall be allowed in respect of counsel attending before theRegistrar in chambers or of more counsel than one attending before a Judge inChambers unless the Registrar or Judge, as the case may be, has certified the attendance as being proper in the circumstances of the case.
(4) A refresher fee, the amount of which shall be in the discretion of the taxing officer, shall be allowed to counsel, either for each period of five hours (or part thereof) after the first, during which a trial or hearing is proceeding or, at the discretion of the taxing officer; in respect of each day,after the first day, on which the attendance of counsel at the place of trial is necessary.
Items to be authorised, certified etc.
3. (1) In an action arising out of an accident on land due to a collision or apprehended collision, the costs of preparing a plan (other than a sketch plan) of the place where the accident happened shall not be allowed unless —
(a) before the trial the Court authorised the preparation of the plan; or
(b) notwithstanding the absence of an authorization under sub-paragraph (a) the Registrar is satisfied that it was reasonable to prepare the plan for use at the trial.
(2) The costs of calling expert witness with regard to any question as to which a Court expert or scientific adviser is appointed under Order 40 shall not be allowed on a taxation of costs in relation to which rule 27(2) or (3) has effect unless the Court at the trial has certified that the calling of the witness was reasonable.
Attendances in chambers.
4. (1) The following provisions of this paragraph apply in relation to every hearing in Chambers.
(2) On a taxation of costs in relation to which rule 27(2) or (3) has effect, no costs shall be allowed for attending any such hearing as aforesaid except in so far as the costs (if any) to be allowed have been fixed by theCourt at the hearing; and in fixing the costs to be allowed for attending any such hearing as aforesaid the Court shall have regard to all relevant circumstances, including in particular the matters mentioned in paragraph 1(2) of this Part of this Appendix, in so far as those circumstances affect the hearing, but not in so far as they may be taken into account in assessing any costs to be allowed in respect of preparation for the hearing.
(3) Where on any such hearing as aforesaid the Court certifies that the speedy and satisfactory disposal of the proceedings required and received from the solicitor engaged in them exceptional skill and labour in the preparation for the hearing, the Registrar in taxing the costs to be allowed for instructions in relation to the summons or application shall take the certificate into account.
Attendances before the Registrar.
5. On any attendances before the Registrar for the purpose of settling the terms of and passing any judgment or order, if it appears to the Registrar that the attendance is of a special nature or of unusual length or difficulty,he may, if requested to do so by any party, issue a certificate to that effect,and the Registrar in fixing the costs to be allowed for the attendance shall take the certificate into account.
Copies of documents.
6. (1) There shall be allowed for printing copies of any document the amount properly paid to the printer, and where any part of a document is properly printed in a foreign language or as a facsimile or in any unusual or special manner, or where any alteration becomes necessary after the first proof of the document, there shall be allowed such an amount as the Registrar thinks reasonable, such amount to include any attendances on the printer.
(2) The solicitor for a party entitled to take printed copies of any documents shall be allowed the amount he pays for such number of copies as he necessarily or properly takes.
(3) The allowance for printed copies of documents under item 81 of thisAppendix shall be made in addition to the allowances under the foregoing provisions of this paragraph, and shall, subject to subparagraph (4) be made for such printed copies as may be necessary or proper —
(a) of any pleading, for service on the opposite party;
(b) of any special case, for filing;
(c) of any pleading or special case, for the use of the Court;
(d) of any affidavit, for attestation in print;
(e) of any pleading, special case or evidence for use in Court; or
(f) of any other document necessarily and properly copied and not otherwise provided for.
(4) The allowance under item 81 of this Appendix shall not be made in relation to printed copies of documents for the use of the Court or of counsel where written copies have been made before printing, and shall not be made more than once in the same cause or matter.
(5) The allowances under this Appendix for drawing any writ, pleading,summons, affidavit or other document shall be taken to include an allowance for preparing any necessary copies made for the use of the solicitor and his client or for counsel to settle or, in the case of a writ,pleading or summons, for service.
FIXED COSTS
PART I
APPENDIX 2
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COSTS ON JUDGMENT WITHOUT TRIAL FOR A LIQUIDATED SUM
1. The scale of costs set out in Part II of this Appendix shall apply in relation to the following cases if the writ of summons therein was issued and indorsed in accordance with Order 6, rule 2(1) (b) , with a claim for a debt or liquidated demand, that is to say —
(a) cases in which the defendant pays the amount claimed within the time and in the manner required by the indorsement of the writ;
(b) cases in which the plaintiff obtains judgment in default of appearance under Order 13, rule 1, or under that rule by virtue or Order 79,rule 4; or judgment in default of defence under Order 19, rule 2, or under that rule by virtue of Order 79, rule 4;
(c) cases in which the plaintiff obtains judgment under Order 14 either unconditionally or unless that sum is paid into Court or to the plaintiff’s solicitors.
PART II
BASIC COSTS
Costs to be allowed in cases under the following sub-paragraphs of paragraph1 of this Appendix.
(a) (b) (c)
$500.00 $900.00 $1,400.00
2. (1) Where there is more than one defendant, is respect of each additional defendant served —
(a) if the additional defendant is represented by the same Costs to be allowed
solicitor as any other defendant ......$30.00
(b) in any other case ......$60.00
(2) Where substituted service is ordered and effected, in respect of each defendant served (excluding disbursements) ...$240.00
(3) Where service out of the jurisdiction is ordered and effected, in the case of service (execluding disbursements) —
Costs to be allowed
(a) in Singapore, Malaysia ........$400.00
(b) in any other place out of the jurisdiction .....$600.00
(4) In the case of judgment in default of defence or judgment under Order14, where notice of appearance is not given on the day on which appearance is entered, and the plaintiff makes an affidavit of service for the purpose of a judgment in default of appearance (the allowance to include the search fee) ...$60.00
(5) In the case of judgment under Order 14 where an affidavit of service of the summons is required ........$60.00
(6) In the case of judgment under Order 14, for each adjournment of the summons ........$60.00
(7) In the case of judgment in default of appearance or defence on an application by summons under Order 79, rule 4.......$100.00
And where there is more than one defendant in respect of each additional defendant .....$20.00
(8) A mileage allowance in respect of each mile after the first 2 miles from the High Court to the address of the defendant or defendants ...$4.00
PART III
COSTS ON JUDGMENT WITHOUT TRIAL FOR POSSESSION OF LAND
3. (1) Where a writ of summons is indorsed with a claim for the possession of land and the plaintiff obtains judgment —
(a) under Order 13, rule 4 or 5, in default of appearance; or
(b) under Order 19, rule 5 or 6, in default of defence; or
(c) under Order 14,
for possession of the land and costs, then, subject to sub-paragraph (2),there shall be allowed the costs prescribed by paragraph 4 of this Appendix.
(2) Where the plaintiff is also entitled under the judgment to damages to be assessed, or where the plaintiff claims any relief of the nature specified inOrder 83, rule 1, this Part of the Appendix shall not apply.
4. The costs to be allowed under this Part of this Appendix shall be the costs which would be allowed under Part I thereof if judgment had been obtained in the same circumstances, that is to say, in default of appearance or of defence or under Order 14.
PART IV
MISCELLANEOUS
5. Where a plaintiff or defendant signs judgment for costs under rule10, there shall be allowed —
Costs to be allowed Costs of judgment .....$60.00
6. Where upon the application of any person who has obtained a judgment or order against a debtor for the recovery or payment of money a garnishee order is made under Order 49, rule 1, against a garnishee attaching debts owing or accruing from him to the debtor the following costs shall be allowed —
(a) to the garnishee, to be deducted by him from any debt owing by him as aforesaid before payments to the applicant —
(i) where the garnishee resides
If no If affidavit used affidavit used
within 2 miles of the High Court ..$60.00$140.00
(ii) where the garnishee does not so reside .......$100.00 180.00
(b) to the applicant, to be retained, unless the Court otherwise orders, out of the money recovered by him under the garnishee order and in priority to the amount of the debt owing to him under the judgment or order—
BASIC COSTS
Costs to be allowed
If the amount recovered by the applicant from the garnishee is —
less than $100.00...... Nil not less than $100.00 but not more than $500.00 ..... $80 .00 more than$500.00....$280 .00
ADDITIONAL COSTS
Where the garnishee fails to attend the hearing of the application and an affidavit of service is required .... $60.00
7. Where a charging order is made —
(a) in respect of any securities under Order 50, rule 2; or
(b) in respect of any partnership property or profits; or
(c) in respect of land, there shall be allowed —
Basic costs ........ $360.00
Additional costs where an affidavit of service is required ........ $50.00
8. Where leave is given under Order 45, rule 3 to enforce a judgment or order for the recovery of possession of land by writ of possession, if costs are allowed on the judgment or order there shall be allowed the following costs,which shall be added to the judgment or order —
Costs ........... $140.00
Where notice of proceedings has been given to more than one person, in respect of each additional person ...... $20.00
9. Where a writ of execution within the meaning of Order 46, rule1
is issued against any party, there shall be allowed —
Costs of issuing execution ... $160.00
ORDER 60
THE REGISTRY
Distribution of business. (0.60, r.1).
1. The Registry shall be divided into such departments, and the business performed in the Registry shall be distributed among the departments in such manner, as the Chief Justice may direct.
Books to be kept in the Registry. (0.60, r.2).
2. The Registrar shall cause to be kept in Forms 119 to Form 134 the following —
(a) a Cause Book;
(b) an Originating Summons Book;
(c) an Originating Motion Book;
(d) an Interpleader Summons Book;
(e) a Summons in Chambers Book;
(f) a Judgment Book;
(g) Writs of Execution Book;
(h) a Distress Book;
(i) a Probate Book;
(j) a Caveat Book;
(k) a Service Book;
(l) a Treasury Direction Book;
(m) an Index of Wills;
(n) a Register of Appeals to the Court of Appeal;
(o) a Register of Appeals from the Subordinate Courts and statutory bodies; and
(p) such account books and other books as are prescribed or required to be kept by these Rules and such other books as may from time to time be found necessary.
Date of filing to be marked etc. (0.60, r.3).
3. (1) Any document filed in the Registry in any proceedings must be sealed with a seal showing the date on which the document was filed and any document not required by these Rules to be sealed must show the date on which it was filed.
(2) Particulars of the time of delivery at the Registry of any document for filing, the date of the document and the title of the cause or matter of which the document forms part of the record shall be entered in books kept in theRegistry for the purpose.
Right to inspect etc. certain documents filed in Registry. (0.60,r.4).
4. (1) Any person shall, on payment of the prescribed fee, be entitled during office hours to search for, inspect and take a copy of any of the following documents filed in the Registry, namely —
(a) the copy of any writ of summons or other originating process;
(b) any judgment or order given or made in Court or the copy of any such judgment or order; and
(c) with the leave of the Registrar, which shall not be required in the case of an advocate and solicitor, any other document.
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(2) Nothing in the foregoing provision shall be taken as preventing any party and his advocate and solicitor to a cause or matter searching for,inspecting and taking or bespeaking a copy of any affidavit or other document filed in the Registry in that cause or matter or filed therein before the commencement of the cause or matter but made with a view to its commencement.
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Deposit of document. (0.60, r.5).
5. Where the Court orders any documents to be lodged in Court, then,unless the order directs that the documents be so lodged by being deposited with the Treasury, the documents must be deposited in the Registry.
6. (There is no rule 6).
7. (There is no rule 7).
8. (There is no rule 8).
Restriction on removal of documents. (0.60, r.9).
9. No document filed in or in the custody of the Registry shall be taken out of it without the leave of the Court unless the document is to be sent to a Subordinate Court.
ORDER 61
OFFICE HOURS
High Court Registry: Days on which open and office hours. (0.61,r.1).
1. (1) The Registry of the High Court shall be open on every day of the year except on a weekly holiday or a public holiday.
(2) The hours during which the Registry of the High Court shall be open to the public shall be such as the Chief Justice may from time to time direct.
ORDER 62
SERVICE OF DOCUMENTS
When personal service required. (0.62, r.1).
1. (1) Any document which by virtue of these Rules is required to be served on any person need not be served personally unless the document is one which by an express provision of these Rules or by order of the Court is required to be so served.
(2) Paragraph (1) shall not affect the power of the Court under any provision of these Rules to dispense with the requirement for personal service.
(3) No service of writ shall be required where the defendant or his solicitor undertakes in writing to accept service and enter an appearance.
Service by process server or other person. (0.62, r.2).
2. (1) Personal service must be effected by a process server of theSupreme Court:
Provided that the Registrar may, either generally or in a particular cause or matter, allow personal service to be effected by any other named person.
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(2) Whenever the service of a document is attended with expense, a process server or other person shall not, except by order of the Registrar, be bound to serve the same, unless reasonable expenses thereof have been tendered in theRegistry by the party requiring the service.
(3) Where service is by a process server, the Registrar shall forthwith give written notice to the plaintiff or person at whose instance the process is issued or to his solicitor, of the fact and manner of such service.
Personal Service: How effected. (0.62, r.3).
3. Personal service of a document is effected by leaving a copy of the document with the person to be served and, if so requested by him at the time when it is left, showing him —
(a) in the case where the document is a writ or other originating process, the sealed copy; and
(b) in any other case, an office copy.
Service on corporations. (0.62, r.4).
4. (1) Where an action is against a corporation, the writ may be served —
(a) by leaving a copy of it at the registered office (if any) of the corporation; or
(b) by sending a copy of it by registered post addressed to the corporation at the office, or, if there be more offices than one at the principal office of the corporation, whether such office be situated withinBrunei Darussalam or elsewhere; or
(c) by handing a copy of it to the secretary or to any director or other principal officer of the corporation; or
(d) in the case of a foreign company registered under the Companies Act (Chapter 39) by handing a copy of it to, or sending the same by registered post to, a person authorised to accept service of process on behalf of the foreign company.
(2) The rule does not restrict the operation of the provisions of any written law as to service on any particular person or authority.
(3) Where service is effected under this rule, the person served shall be entitled on demand to inspect the original writ.
Substituted service. (0.62, r.5).
5. (1) If, in the case of any document which by virtue of any provision of these Rules is required to be served personally on any person, it appears to the Court that it is impracticable for any reason to serve that document personally on that person, the Court may make an order in Form 135 for substituted service of that document.
(2) An application for an order for substituted service must be made by summons supported by an affidavit in Form 136 stating the facts on which the application is founded.
(3) Substituted service of a document, in relation to which an order is made under this rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served.
Ordinary service: How effected. (0.62, r.6).
6. (1) Service of any document, not being a document which by virtue of any provision of these Rules is required to be served personally, may be effected —
(a) by leaving the document at the proper address of the person to be served; or
(b) by prepaid registered post; or
(c) in such other manner as the Court may direct; or
(d) by fax in accordance with paragraph (4).
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(2) For the purposes of this rule, and section 2 of the Interpretation andGeneral Clauses Act (Chapter 4), in its application to this rule, the proper address of any person on whom a document is to be served in accordance with this rule shall be the address for service of that person, but if at the time when service is effected that person has no address for service his proper address for the purposes aforesaid shall be —
(a) in any case, the business address of the solicitor (if any) who is acting for him in the proceedings in connection with which service of the document in question is to be effected; or
(b) in the case of an individual, his usual or last known address;or
(c) in the case of individuals who are suing or being sued in the name of a firm, the principal or last known place of business of the firm within the jurisdiction; or
(d) in the case of a body corporate, the registered or principal office of the body.
(3) Nothing in this rule shall be taken as prohibiting the personal service of any document or as affecting any written law which provides for the manner in which documents may be served on bodies corporate.
(4) Service by fax may be effected where —
(a) the party serving the document acts by a solicitor;
(b) the party on whom the document is served acts by a solicitor and service is effected by transmission to the business address of such a solicitor;
(c) the solicitor acting for the party on whom the document is served has indicated in writing to the solicitor serving the document that he is willing to accept service by fax at a specified fax number and the document is transmitted to that number; and for this purpose the inscription of a fax number on the writing paper of the solicitor shall be deemed to indicate that such a solicitor is willing to accept service by fax at that number in accordance with this paragraph unless he states otherwise in writing; and
(d) within 3 days after the day of service by fax, the solicitor acting for the party serving the document serves a copy of it on the solicitor acting for the other party by any of the other methods set out in paragraph 6(1), and if he fails to do so,the documents shall be deemed never to have been served by fax.
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Service on Minister etc. in proceedings which are not by or against theGovernment. (0.62, r.7).
7. Where for the purpose of or in connection with any proceedings in the High Court, not being civil proceedings by the Government, any document is required by any written law or these Rules to be served on the Minister of aGovernment department, or on such a department or on the Attorney General, theseRules, shall apply in relation to the service of the document as they apply in relation to the service of the documents required to be served on the Government for the purpose of or in connection with any civil proceedings by theGovernment.
[S 31/00]
Effect of service after certain hours. (0.62, r.8).
8. Any document (other than a writ of summons or other originating process) service of which is effected under rule 3 or under rule 6(1) (a) after 12 noon on a day preceding the weekly holiday or after 4 in the afternoon on any other weekdays, shall, for the purpose of computing any period of time after service of that document, be deemed to have been served on the day following that day preceding the weekly holiday or on the day following that other weekly, as the case may be.
Affidavit of service. (0.62, r.9).
9. An affidavit of service of any document must state by whom the document was served, the day of the week and date on which it was served, where it was served and how and must be in one of the forms in Form 137.
No service required in certain cases. (0.62, r.10).
10. Where by virtue of these Rules any document is required to be served on any person but is not required to be served personally, and at the time when service is to be effected that person is in default as to entry of appearance or has no address for service, the document need not be served on that person unless the Court otherwise directs or any of these Rules otherwise provides.
Service of notices from High Court. (0.62, r.11).
11. Notices sent from any office of the High Court may be sent by post; and the time at which the notice so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof, and the posting thereof shall be a sufficient service. But nothing in this rule shall prevent any party from establishing, if such be the case, that he has not been so served.
Service where no appearance or address for service. (0.62, r.12).
12. Where no appearance has been entered for a party, or where a party or his solicitor, as the case may be, has omitted to give an address for service, all writs, notices, pleadings, orders, summonses, warrants and other documents, proceedings, and written communications in respect of which personal service is not requisite may be served by filing them with the proper officer.
Service upon solicitor or party formerly appearing in person. (0.62,r.l3).
13. Where a party after having sued or appeared in person has given notice in writing to the opposite party or his solicitor, through a solicitor,that such solicitor is authorised to act in the cause or matter on his behalf, all writs, notices, pleadings, summonses, orders warrants, and other documents, proceedings, and written communications which ought to be delivered to or served upon the party on whose behalf the notice is given shall thereafter be delivered to or served upon such solicitor.
ORDER 63
PAPER, PRINTING, NOTICES AND COPIES
Quality and size of paper. (0.63, r.1).
1. Unless the nature of the document renders it impracticable, every document prepared by a party for use in the High Court must be on paper of durable quality, approximately 11.69 inches (297 mm.) long, by 8.27 inches (210 mm.) wide, having a margin,not less than 1 inch wide to be left blank on either side of the paper.
Regulations as to printing etc. (0.63, r.2).
2. (1) Except where these Rules otherwise provide, every document prepared by a party for use in the High Court must be produced by one of the following means, that is to say, printing, writing (which must be clear and legible) and typewriting otherwise than by means of a carbon, and may be produced partly by one of those means and partly by another or others of them.
(2) For the purpose of these Rules a document shall be deemed to be printed if it is produced by type lithography or stencil duplicating.
(3) Any type used in producing a document for use as aforesaid must be such as to give a clear and legible impression and must be not smaller than 11 point type for printing or elite type for type lithography, stencil duplicating or typewriting.
(4) Any document produced by a photographic or similar process giving a positive and permanent representation free from blemishes shall, to the extent that it contains a facsimile of any printed, written or typewritten matter, be treated for the purposes of these Rules as if it were printed, written or typewritten as the case may be.
(5) Any notice required by these Rules may not be given orally except with the leave of the Court.
Copies of documents for other party. (0.63, r.3).
3. (1) Where a document prepared by a party for use in the High Court is printed the party by whom it was prepared must, on receiving a written request from any other party entitled to a copy of that document supply him with a copy, and on payment of the proper charges, supply him with such number of further copies thereof, not exceeding 10, as may be specified in the request.
(2) Where a document prepared by a party for use in the High Court is written or typewritten, the party by whom it was prepared must supply and other party entitled to a copy of it, not being a party on whom it has been served,with one copy of it and, where the document in question is an affi-davit, of any document exhibited to it.
The copy must be ready for delivery within 48 hours after a written request for it, together with an undertaking to pay the proper charges, is received and must be supplied thereafter on payment of those charges.
Requirements as to copies. (0.63, r.4).
4. (1) Every copy of a document, whether an office copy or a copy supplied to a party under these Rules, must show on the indorsement the number of folios it contains.
(2) Before a copy of a document is supplied to a party under these Rules, it must be indorsed with the name and address of the party or solicitor by whom it was supplied.
(3) The party by whom a copy is supplied under rule 3, or, if he sues or appears by a solicitor, his solicitor, shall be answerable for the copy being a true copy of the original or of an office copy, as the case may be.
ORDER 63A
ELECTRONIC FILING AND SERVICE
Definitions. (0.63A, r.1). [S 8/99]
1. In this Order —
“authentication code” means any identification or identifying code, password or any other authentication method or procedure which has been assigned to a registered user of the electronic filing service for the purpose of identifying and authenticating the access to and use of the electronic filing service by the registered user;
“electronic filing service” means the electronic filing service established under rule 2;
“identification name” means the identification name assigned to a registered user by the Registrar under rule 6(1);
“network service provider” means a network service provider appointed by the Registrar, with the approval of the Chief Justice, under rule 3(1);
“operation manual” means an operation manual issued by the network service provider, with the approval of the Registrar, under rule3(2);
“registered user” means a person who has been registered with theRegistrar to gain access to and use the electronic filing service under rule5;
“specified documents” means documents which are —
(a) required by these Rules to be filed, served, delivered or otherwise conveyed; and
(b) specified in practice directions for the time being issued by the Registrar.
Electronic filing service. (0.63A, r.2). [S 8/99]
2. The Registrar may, with the approval of the Chief Justice,establish an electronic filing service and make provision for specified documents to be filed, served, delivered or otherwise conveyed by electronic transmission through a network service provider.
Network. (0.63A, r.3). [S 8/99]
3. (1) The electronic filing service shall be operated by a network service provider appointed by the Registrar with the approval of the ChiefJustice.
(2) The network service provider, with the approval of the Registrar, shall issue an operation manual for the electronic filing service.
Application. (0.63A, r.4). [S 8/99]
4. (1) This Order shall apply to any person who has been registered by the Registrar as a registered user for the purposes of filing, serving,delivery or conveyance of documents by electronic transmission.
(2) A registered user may, notwithstanding any other provision of theseRules, file, serve, deliver or otherwise convey specified documents on other registered users by electronic transmission in accordance with thisOrder.
Registered user. (0.63A, r.5). [S 8/99]
5. (1) Any person may apply to the Registrar to be a registered user.
(2) Upon approval of the application by the Registrar, the registered user shall —
(a) enter into an agreement with the network service provider for the provision of the network service, and the necessary computer and communication equipment and software specified in the operation manual;
(b) study the operation manual for the electronic filing service;and
(c) make arrangements with the Registrar for the mode of payment of the applicable fees prescribed in these Rules.
Authentication code. (0.63A, r.6). [S 8/99]
6. (1) Before using the electronic filing service, the registered user shall apply to the Registrar for one or more identification names and authentication codes to be assigned to him or his authorised agent.
(2) The registered user or his authorised agent shall register his particulars with the Registrar and acknowledge in writing safe receipt of the identification name and authentication code assigned to him by theRegistrar.
(3) The registered user or his authorised agent shall inform the Registrar in writing of any change in particulars.
(4) When the authority of an authorised agent is revoked or terminated, the registered user shall immediately request the Registrar in writing to cancel the identification name and authentication code of that authorised agent in the manner specified in practice directions for the time being issued by the Registrar.
Security. (0.63A, r.7). [S 8/99]
7. The registered user or his authorised agent shall ensure the confidentiality and security of his authentication code and shall not—
(a) divulge his authentication code to any other person; or
(b) permit any other person to use his authentication code.
Electronic filing. (0.63A, r.8). [S 8/99]
8. Where a specified document is required to be filed with, served on,delivered or otherwise conveyed to the Registrar under any other provision of these Rules, it may be carried out by the registered user by electronic transmission in accordance with the operation manual.
Signing. (0.63A, r.9). [S 8/99]
9. Where a document is filed, served, delivered or otherwise conveyed by electronic transmission, any requirement under any other provision of theseRules relating to signing by or the signature of —
(a) the registered user, shall be deemed to be complied with if the authentication code of the registered, user has been applied to the document in accordance with the operation manual;
(b) the Registrar, shall be deemed to be complied with if a facsimile of the Registrar’s signature is reproduced in the document.
Date of filing. (0.63A, r.10). [S 8/99]
10. (1) Where a document is filed with, served on, delivered or otherwise conveyed to the Registrar by electronic transmission and subsequently accepted by the Registrar, it shall be deemed to be filed, served, delivered or conveyed on the date the first part of the transmission is received in the computer account of the network service provider.
(2) Where a writ is filed or conveyed by electronic transmission and subsequently accepted by the Registrar, it shall notwithstanding Order 6, rule3(2), be deemed to be issued on the date the first part of the transmission is received by the network service provider.
(3) The registered user may prove —
(a) filing or issuance of the writ;
(b) filing, service, delivery or conveyance of any other document,by producing a record of the transmission issued by the network service provider together with a copy of the acknowledgment of acceptance of the document by theRegistrar.
Time for service. (0.63A, r.11). [S 8/99]
11. Where a document is filed with, served on, delivered or otherwise conveyed to the Registrar by electronic transmission, the time for service of the document shall only commence upon the Registrar transmitting an acknowledgment of his acceptance of the document.
Service of documents. (0.63A, r.12). [S 8/99]
12. (1) If a specified document, other than a document which is required by these Rules to be served personally, is required under any other provision of these Rules to be served, delivered or otherwise conveyed by a registered user (referred to in this rule as the first registered user) on any other person and that person is a registered user or is represented by a solicitor who is a registered user (referred to in this rule as the second registered user), such service, delivery or conveyance may be effected by electronic transmission in accordance with the operation manual.
(2) The document shall be deemed to be served, delivered or otherwise conveyed on the date it is received in the computer account of the second registered user.
(3) The first registered user may prove service by producing a record of the transmission issued by the network service provider together with the electronic identification name of the second registered user.
Notification by Registrar. (0.63A, r.13). [S 8/99]
13. Where the Registrar is required by any other provision of theseRules to notify or to deliver or furnish any document to a person who is registered user, the Registrar may do so by electronic transmission in accordance with the operation manual.
Fees. (0.63A, r.14). [S 8/99]
14. (1) The fees prescribed in these Rules shall apply equally to the filing, service, delivery or conveyance of any document by electronic transmission.
(2) Order 85 rule 2 shall apply to fees payable with respect to specified documents that are transmitted by electronic transmission to the Registrar.
Presumptions. (0.63A, r.15). [S 8/99]
15. (1) Where a document is transmitted to the computer account of the Registrar using the authentication code assigned to a registered user—
(a) with or without the authority of the registered user; and
(b) before the notification to the Registrar in the manner specified in any practice direction for the time being issued by the Registrar of cancellation of the authentication code,
that document shall, for the purposes of these Rules, be presumed —
(i) to have been transmitted accurately; and
(ii) to have been made and transmitted by the registered user,
unless the registered user adduces evidence to the contrary; and where the registered user alleges that he has transmitted no such document, the burden is also on him to adduce evidence of that fact.
(2) A certificate under the hand of the Registrar giving the authentication code, identification name and other particulars of the registered user and a description of the document transmitted shall be sufficient evidence of the matters referred to in paragraph (1) (a) and (b) .
Discrepancy. (0.63A, r.16). [S 8/99]
16. Where there is any inconsistency between —
(a) the information entered into the electronic template of the document to be transmitted in the manner required by the operation manual;and
(b) the information subsequently produced from that template,
the information first entered into the electronic template shall prevail and shall be presumed to be accurately transmitted.
Application of Order. (0.63A, r.17). [S 8/99]
17. This Order shall come into force on such date as the Registrar may specify.
ORDER 64
CHANGE OF SOLICITOR
Notice of change of solicitor. (0.64, r.1).
1. (1) A party to any cause or matter who sues or defends by a solicitor may change his solicitor without an order for that purpose but, unless and until notice of the change is filed and served in accordance with this rule,the former solicitor shall, subject to rules 4 and 5, be considered the solicitor of the party until the final conclusion of the cause or matter, in theHigh Court.
(2) Notice of a change of solicitor in Form 138 must be filed in theRegistry.
(3) The party giving the notice must serve on every other party to the cause or matter (not being a party in default as to entry of appearance) and on the former solicitor a copy of the notice.
(4) The party giving the notice may perform the duties prescribed by this rule in person or by his new solicitor.
Notice of appointment of solicitor. (0.64, r.2).
2. Where a party, after having sued or defended in person, appoints a solicitor to act in the cause or matter on his behalf, the change may be made without an order for that purpose and rule 1(2), (3) and (4) shall, with the necessary modifications, apply in relation to a notice of appointment of a solicitor in Form 138 as they apply in relation to a notice of change of solicitor.
Notice of intention to act in person. (0.64, r.3).
3. Where a party, after having sued or defended by a solicitor,intends and is entitled to act in person, the change may be made without an order for that purpose and rule 1 shall, with the necessary modifications, apply in relation to a notice of intention to act in person as it applies in relation to a notice of change of solicitor except that the notice of intention to act in person in Form 139 must contain an address for service of the party giving it.
Removal of solicitor from record at instance of another party. (0.64,r.4).
4. (1) Where —
(a) a solicitor who has acted for a party in a cause or matter 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 been suspended from practising or has for any other reason ceased to practise;and
(b) the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the foregoing provisions of this Order,
any other party to the cause or matter may apply to the Court or, if an appeal to the Court of Appeal is pending in the cause or matter, to the Court ofAppeal for an order declaring that the solicitor has ceased to be the solicitor acting for the first mentioned party in the cause or matter, and the Court may make an order accordingly.
(2) An application for an order under this rule must be made by summons inForm 140 and the summons or notice of motion must unless the Court or the Court ofAppeal, as the case may be, otherwise directs, be served on the party to whose solicitor the application relates. The application must be supported by an affidavit stating the grounds of the application.
(3) Where an order in Form 141 is made under this rule the party on whose application it was made must serve on every other party to the cause or matter (not being a party in default as to entry of appearance) a copy of the order.
(4) An order made under this rule shall not affect the right of the solicitor and the party for whom he acted as between themselves.
Withdrawal of solicitor who has ceased to act for party. (0.64,r.5).
5. (1) Where a solicitor who has acted for a party in a cause or matter has ceased so to act and the party has not given notice of change in accordance with rule 1, or notice of intention to act in person in accordance with rule 3, the solicitor may apply to the Court for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the cause or matter, and the Court or the Court of Appeal, as the case may be, may make an order accordingly, but unless and until the solicitor serves on every party to the cause or matter (not being a party in default as to entry of appearance) a copy of the order, he shall, subject to the foregoing provisions of this Order,be considered the solicitor of the party till the final conclusion of the cause or matter, whether in the High Court or the Court of Appeal.
(2) An application for an order under this rule must be made by summons inForm 142 or, in the case of an application to the Court of Appeal by motion, and the summons or notice of motion must, unless the Court or the Court of Appeal,as the case may be, otherwise directs, be served on the party for whom the solicitor acted.
The application must be supported by an affidavit stating the grounds of the application.
(3) An order in Form 143 made under this rule shall not affect the rights of the solicitor and the party for whom he acted as between themselves.
(4) Notwithstanding anything in paragraph (1), where the legal aid certificate of an assisted person is revoked or discharged, the solicitor who acted for the assisted person shall cease to be the solicitor acting in the cause or matter; and if the assisted person whose certificate has been revoked or discharged desires to proceed with the cause or matter without legal aid and appoints that solicitor or another solicitor to act on his behalf, the provisions of rule 2 shall apply as if that party had previously sued or defended in person.
Address for service of party whose solicitor is removed etc. (0.64,r.6).
6. Where —
(a) an order is made under rule 4; or
(b) an order is made under rule 5, and the applicant for that order has complied with rule 5(1); or
(c) the legal aid certificate of an assisted person is revoked or discharged,
then unless and until the party to whose solicitor or to whom, as the case may be, the order or certificate relates either appoints another solicitor and complies with rule 2, or being entitled to act in person, gives notice of his intention so to do and complies with rule 3, his last known address or, where the party is a body corporate, its registered or principal office shall, for the purpose of the service on him of any document not required to be served personally, be deemed to be his address for service.
ORDER 65
SERVICE OF FOREIGN PROCESS
Definition. (0.65, r.1).
1. In this Order “process” includes a citation.
Service of foreign legal process. (0.65, r.2).
2. (1) This rule applies in relation to the service of any process required in connection with civil proceedings pending before a court or other tribunal of a foreign country where a letter of request from such a tribunal requesting service on a person in Brunei Darussalam of any such process sent with the letter is received by the Minister and is sent by him to the High Court with an intimation that it is desirable that effect should be given to the request.
(2) In order that service of the process may be effected in accordance with this rule the letter of request must be accompanied by a translation thereof inEnglish, by 2 copies of the process to be served and by 2 copies of a translation of the process in English.
(3) Subject to paragraph (4) and to any written law which provides for the manner in which documents may be served on bodies corporate, service of the process shall be effected by leaving a copy of it and of the translation with the person to be served.
Service shall be effected by the process server.
(4) Where an application in that behalf is made by the Attorney General, theCourt may make an order for substituted service of the process, and, where such an order is made, service of the process shall be effected by taking such steps as the Court may direct to bring the process to the notice of the person to be served.
(5) After service of the process has been effected or (if such be the case) attempts to effect service of it have failed, the process server shall file a copy of the process, an affidavit made by the person who served, or attempted to serve, the process stating when, where and how he did or attempted to do so, a copy of that affidavit and a statement of the costs incurred in effecting, or attempting to effect, service.
(6) The Registrar shall give a certificate in Form 144 —
(a) identifying the documents annexed thereto, that is to say, the letter of request for service, a copy of the process received with the letter and a copy of the affidavit referred to in paragraph (5);
(b) certifying that the method of service of the process and the proof of service are such as are required by the rules of the High Court regulating the service of process of that Court in Brunei Darussalam or, if such be the case, that service of the process could not be effected for the reason specified in the certificate; and
(c) certifying that the cost of effecting, or attempting to effect,service is the amount so specified.
(7) The certificate given under paragraph (6) shall be sealed with the seal of the High Court for use out of the jurisdiction and shall be sent to thePermanent Secretary to the Minister.
Service of foreign legal process under Civil Procedure Convention. (0.65,r.3).
3. (1) This rule applies in relation to the service of any process required in connection with civil proceedings pending before a court or other tribunal of a foreign country, being a country with which there subsists a CivilProcedure Convention providing for service in Brunei Darussalam of process of the tribunals of that country, where a letter of request from a consular or other authority of that country requesting service on a person in BruneiDarussalam of any such process sent with the letter is received by theRegistrar.
(2) In order that service of the process may be effected in accordance with this rule the letter or request must be accompanied by a copy of a translation to the process to be served in English.
(3) Subject to any written law which provides for the manner in which documents may be served on bodies corporate and to any special provisions of the relevant Civil Procedure Convention, service of the process shall be effected by leaving the original process or a copy of it, as indicated in the letter of request, and a copy of the translation with the person to be served.
Service shall be effected by the process server.
(4) After service of the process has been effected or (if such be the case) attempts to effect service of it have failed, the process server shall file an affidavit made by the person who served, or attempted to serve, the process stating when, where and how he did or attempted to do so, and a statement of the costs incurred in effecting, or attempting to effect, service.
(5) The Registrar shall give a certificate certifying —
(a) that the process or a copy thereof, as the case may be, was served on the person, at the time, and in the manner, specified in the certificate or, if such be the case, that service of the process could not be effected for the reason so specified; and
(b) that the cost of effecting, or attempting to effect, service is the amount so specified.
(6) The certificate given under paragraph (5) shall be sealed with the seal of the High Court for use out of jurisdiction and shall be sent to the consular or other authority by whom the request for service was made.
Costs of service etc. to be certified by Registrar. (0.65, r.4).
4. A statement of the costs incurred in effecting, or attempting to effect, service under rule 2 or 3 shall be submitted to the Registrar who shall certify the amount properly payable in respect of those costs.
ORDER 66
OBTAINING EVIDENCE FOR FOREIGN COURTS ETC.
Jurisdiction of Registrar to make order. (0.66, r.1).
1. Subject to paragraph (2), the power of the High Court or a Judge thereof to make, in relation to a matter pending before a court or tribunal in a place outside the jurisdiction, orders for the examination of witnesses and for attendance and for production of documents and to give directions may be exercised by the Registrar.
(2) The Registrar may not make such an order if the matter in question is a criminal matter.
Application for order. (0.66, r.2).
2. (1) Subject to paragraph (3) and rule 3, an application for an order under rule 1 must be made ex parte by a person duly authorised to make the application on behalf of the court or tribunal in question and must be supported by affidavit.
(2) There must be exhibited to the affidavit in support the letter of request, certificate or other document evidencing the desire of the court or tribunal to obtain for the purpose of a matter pending before it the evidence of the witness to whom the application relates or the production of any documents and, if that document is not in the English language, a translation thereof in that language.
(3) After an application for such an order as is mentioned in paragraph (1) has been made in relation to a matter pending before a court or tribunal, an application for a further order or directions in relation to the same matter must be made by summons.
Application by Attorney General in certain cases. (0.66, r.3).
3. Where a letter of request, certificate or other document requesting that the evidence of a witness within the jurisdiction in relation to a matter pending before a court or tribunal in a foreign country be obtained —
(a) is received by the Minister and sent by him to the Registrar with an intimation that effect should be given to the request without requiring an application for that purpose to be made by the agent inBrunei Darussalam of any party to the matter pending before the court or tribunal; or
(b) is received by the Registrar in pursuance of a Civil ProcedureConvention providing for the taking of the evidence of any person in BruneiDarussalam for the assistance of a court or tribunal in the foreign country, and no person is named in the document as the person who will make the necessary application on behalf of such party,
the Registrar shall send the document to the Attorney General and theAttorney General may make an application for an order and take such other steps as may be necessary, to give effect to the request.
Person to take and manner of taking examination. (0.66, r.4).
4. (1) Any order made in pursuance of this Order for the examination of a witness may order the examination to be taken before any fit and proper person nominated by the person applying for the order or before the Registrar or before such other qualified person as the Court seems fit.
(2) Subject to any special directions contained in any order made in pursuance of this Order for the examination of any witness, the examination shall be taken in the manner provided by Order 39, rules 5 to 10 and 11(1) to (3), and an order may be made under Order 39, rule 14, for payment of the fees and expenses due to the examiner, and those rules shall apply accordingly with any necessary modifications.
Dealing with deposition. (0.66, r.5).
5. Unless any order made in pursuance of this Order for the examination of any witness otherwise directs, the examiner before whom the examination was taken must send the deposition of that witness to the Registrar and the Registrar shall —
(a) give a certificate sealed with the seal of the High Court for use out of the jurisdiction identifying the documents annexed thereto, that is to say, the letter of request, certificate, or other document from the court or tribunal out of the jurisdiction requesting the examination, the order of the Court for examination and the deposition taken in pursuance of the order; and
(b) send the certificate with the documents annexed thereto to theMinister, or, where the letter of request, certificate or other document was sent to the Registrar by some other person in accordance with a Civil ProcedureConvention to that other person, for transmission to that court or tribunal.
ORDER 67
RECIPROCAL ENFORCEMENT OF JUDGMENTS
Powers under relevant acts exercisable by Judge or Registrar. (0.67,r.1).
1. The powers conferred on the High Court by the Emergency (ReciprocalEnforcement of Foreign Judgments) Order, 1996 (hereinafter referred to as“the Act”), may be exercised by a Judge in Chambers and theRegistrar.
[S 8/99]
Application for registration. (0.67 r.2).
2. (1) An application under section 3 of the Act in respect of a judgment obtained in a superior court of a country referred to in sections 3 and5 of the Act to have the judgment registered in the High Court must be made by an originating summons.
(2) No appearance need be entered to an originating summons under this rule.
Evidence in support of application. (0.67 r.3).
3. (1) An application for registration must be supported by an affidavit —
(a) exhibiting the judgment or a certified or certified or otherwise duly authenticated copy thereof, and where the judgment is not in theEnglish language, a translation thereof in that language certified by a notary public or authenticated by affidavit;
(b) stating the name, trade or business and the usual or last known place of abode or business of the judgment creditor and the judgment debtor respectively, so far as known to the deponent;
(c) stating to the best of the information or belief of the deponent—
(i) that the judgment creditor is entitled to enforce the judgment;
(ii) as the case may require, either that at the date of the application the judgment has not been satisfied or the amount in respect of which it remains unsatisfied;
(iii) where the application is made under the Act, that the judgment does not fall within any of the case in which a judgment may not be ordered to be registered under section 3 of the Act;
(iv) where the application is made under the Act, that at the date of the application the judgment can be enforced by execution in the country of the original court and that, if it were registered, the registration would not be,or be liable to be, set aside under Rules of Court made under section 6 of thatAct;
(d) specifying where the application is made under the Act, the amount of the interest, if any, which under the law of the country of the original court has become due under the judgment up to the time of registration.
(2) Where the sum payable under a judgment sought to be registered is expressed in a currency other than the currency of Brunei Darussalam, the affidavit must also state the amount which that sum represents in the currency of Brunei Darussalam calculated at the rate of exchange prevailing at the date of the judgment.
(3) Where a judgment sought to be registered under the Act is in respect of different matters, and some, but not all, of the provisions of the judgment are such that if those provisions had been contained in separate judgments, those judgments could properly have been registered, the affidavit must state the provisions in respect of which it is sought to register the judgment.
(4) In the case of an application under the Act, the affidavit must be accompanied by such other evidence with respect to the enforceability of the judgment by execution in the country of the original court, and of the law of that country under which any interest has become due under the judgment, as may be required having regard to the provisions of the Order under the Act extending that Act to that country.
Security for costs. (0.67 r.4).
4. Save as otherwise provided by any notification made pursuant toRules of Court made under section 6 of the Act or any relevant Order under theAct, the Court may order the judgment creditor to give security for the cost of the application for registration and of any proceedings which maybe brought to set aside the registration.
Order for registration. (0.67, r.5).
5. (1) An order in Form 145 giving leave to register a judgment must be drawn up by, or on behalf of, the judgment creditor and served on the judgment debtor.
(2) Every such order shall state the period within which an application may be made to set aside the registration and shall contain a notification that execution on the judgment will not issue until after the expiration of that period.
(3) The Court may, on an application made at any time while it remains competent for any party to apply to have the registration set aside, extend the period (either as originally fixed or as subsequently extended) within which an application to have the registration set aside may be made.
Register of judgments. (0.67, r.6).
6. (1) There shall be kept in the Registry a register of the judgments ordered to be registered under the Act.
(2) There shall be included in such register particulars of any execution issued on a judgment ordered to be so registered.
Notice of registration. (0.67, r.7).
7. (1) Notice of the registration of a judgment must be served on the judgment debtor and, subject to paragraph (2), must be served personally unless the Court otherwise orders.
(2) Service of such a notice out of the jurisdiction is permissible without leave, and Order 11, rules 5, 6 and 8, shall apply in relation to such a notice as they apply in relation to notice of a writ.
(3) The notice of registration must state —
(a) full particulars of the judgment registered and the order for registration;
(b) the name and address of the judgment creditor or of his solicitor on whom, and at which, any summons issued by the judgment debtor may be served;
(c) the right of the judgment debtor to apply to have the registration set aside;
and
(d) the period within which an application to set aside the registration may be made.
Indorsement of service. (0.67, r.8).
8. (1) Within 3 days after service of the notice of registration or within such longer period as the Court may, in special circumstances allow, the notice or a copy thereof must be indorsed by the person who served it with the day of the week and date on which it was served; and, if the notice is not so indorsed within the period aforesaid the judgment creditor may not issue execution on the judgment to which the notice relates without the leave of theCourt.
(2) Every affidavit of service of any such notice must state the date on which the notice was indorsed under this rule.
Application to set aside registration. (0.67, r.9).
9. (1) An application to set aside the registration of a judgment must be made by summons supported by affidavit.
(2) The Court hearing such application may order any issue between the judgment creditor and the judgment debtor to be tried in any manner in which an issue in an action may be ordered to be tried.
(3) Where the Court hearing an application to set aside the registration of a judgment registered under the Act is satisfied that the judgment falls within any of the cases in which a judgment may not be ordered to be registered under section 3(2) of that Act or that it is not just or convenient that the judgment should be enforced in Brunei Darussalam or that there is some other sufficient reason for setting aside the registration, it may order the registration of the judgment to be set aside on such terms as it thinks fit.
Issue of execution. (0.67, r.10).
10. (1) Execution shall not issue on a judgment registered under theAct until after the expiration of the period which, in accordance with rule5(3), is specified in the order for registration as the period within which an application may be made to set aside the registration or, if that period has been extended by Court, until after the expiration of that period as so extended.
(2) If an application is made to set aside the registration of a judgment,execution on the judgment shall not issue until after such application is finally determined.
(3) Any party wishing to issue execution on a judgment registered under theAct must produce to the sheriff an affidavit of service of the notice of registration of the judgment and any order made by the Court in relation to the judgment.
Determination of certain questions. (0.67, r.11).
11. If, in any case under the Act, any question arises whether a foreign judgment can be enforced by execution in the country of the original court, or what interest is payable under a foreign judgment under the law of the original court, that question shall be determined in accordance with the provisions in that behalf contained in the Order extending that Act to that country.
Rules to have effect subject to orders of the Government. (0.67,r.l2).
12. The foregoing rules shall, in relation to any judgment registered or sought to be registered under the Act, have effect subject to any such provisions contained in the Order extending that Act to the country of the original court as are declared by the Order to be necessary for giving effect to the agreement made between the Government and that country in relation to matters with respect to which there is power to make those rules.
Certified copy of High Court judgment. (0.67, r.13).
13. (1) An application under the Act for a certified copy of a judgment entered in the High Court must be made ex parte by summons to the Registrar supported by affidavit.
(2) The affidavit in support of the application under the Act must give particulars of the judgment, show that the judgment debtor is resident in the territory to which that Act extends and state the name, trade or business and the usual or last known place of abode of the judgment creditor and the judgment debtor respectively, so far as known to the deponent.
(3) The affidavit in support of the application under the Act must—
(a) give particulars of the proceedings in which the judgment was obtained;
(b) have annexed to it a copy of the writ or originating summons by which the proceedings were begun, the evidence of service thereof on, or appearance by, the defendant, copies of the pleadings, if any, and a statement of the grounds on which the judgment was based;
(c) state whether the defendant did or did not object to the jurisdiction, and, if so, on what grounds;
(d) show that the judgment is not subject to any stay of execution;
(e) state that the time for appealing has expired or, as the case may be, the date on which it will expire and in either case whether notice of appeal against the judgment has been entered; and
(f) state the rate at which the judgment carries interest.
(4) The certified copy of the judgment shall be an office copy sealed with the seal of the High Court and indorsed with a certificate in Form 146 signed by the Registrar certifying that the copy is a true copy of a judgment obtained in the High Court in Brunei Darussalam and that it is issued in accordance with theAct.
(5) Where the application is made under the Act, there shall also be issued a certificate in Form 147 (signed by the Registrar and sealed with the seal of the High Court) having annexed to it a copy of the writ or originating summons by which the proceedings were begun, and stating —
(a) the manner in which the writ or such summons was served on the defendant or that the defendant appeared thereto;
(b) what objections, if any, were made to the jurisdiction;
(c) what pleadings, if any, were served;
(d) the grounds on which the judgment was based;
(e) that the time for appealing has expired or, as the case may be,the date on which it will expire;
(f) whether notice of appeal against the judgment has been entered;and (g) such other particulars as it may be necessary to give to the court in the foreign country in which it is sought to obtain execution of the judgment,
and a certificate (signed and sealed as aforesaid) stating the rate at which the judgment carries interest.
ORDER 68
(There is no Order 68)
ORDER 69
ARBITRATION PROCEEDINGS
Interpretation. (0.69, r.1).
1. In this Order “Act” means the Arbitration Act (Chapter173).
Matters for a Judge in Court. (0.69, r.2).
2. (1) Every application to the Court —
(a) to remit an award under the Act; or
(b) to remove an arbitrator or umpire under that Act; or
(c) to set aside an award under the Act, must be made by originating motion to a single Judge in Court.
(2) A special case for the decision of the High Court by an arbitrator or umpire under the Act shall be heard and determined by a single Judge.
(3) An application for a declaration that an award made by an arbitrator or umpire is not binding on a party to the award on the ground that it was made without jurisdiction may be made by originating motion to a single Judge inCourt, but the foregoing provision shall not be taken as affecting the Judge’s power to refuse to make such a declaration in proceedings begun by motion.
Matters for Judge in Chambers or Registrar. (0.69, r.3).
3. (1) Subject to the foregoing provisions of this Order, the jurisdiction of the High Court or a Judge thereof under the Act may be exercised by a Judge in Chambers or the Registrar.
(2) An application for an order under the Act directing an arbitrator or umpire to state a case must be made by originating summons and the summons must be served on the arbitrator or umpire and the other party to the reference.
(3) No appearance need be entered to an originating summons by which an application under the said Act is made.
Special provisions as to applications to remit or set aside an award. (0.69, r.4).
4. (1) An application to the Court —
(a) to remit an award under the Act; or
(b) to set aside an award under the Act or otherwise,
may be made at any time within 6 weeks after the award has been made and published to the parties.
(2) In the case of every such application, the notice of motion must state in general terms the grounds of the application; and, where the motion is founded on evidence by affidavit, a copy of every affidavit intended to be used must be served with that notice.
Appeals. (0.69, r.4A). [S 8/99]
4A. (1) A notice of originating motion by way of appeal must state—
(a) the award from which the appeal is brought;
(b) whether the appeal is from the whole or part only of the award and if so, what part of the award;
(c) the question of law arising out of the award;
(d) concisely the grounds of the appeal; and
(e) whether the appeal is brought with the consent of the parties to the arbitration agreement.
(2) A copy of every affidavit intended to be used in the appeal, and of every consent given in writing (where applicable), must be served with the notice.
Service out of the jurisdiction of summons, notice etc. (0.69,r.5).
5. (1) Service out of the jurisdiction —
(a) of an originating summons for the appointment of an arbitrator or umpire or for leave to enforce an award; or
(b) of notice of an originating motion to remove an arbitrator or umpire or to remit or set aside an award; or
(c) of any order made on such a summons or motion as aforesaid,
is permissible with the leave of the Court provided that the arbitration to which the summons, motion or order relates is to be, or has been held within the jurisdiction.
(2) An application for the grant of leave under this rule must be supported by an affidavit stating the ground on which the application is made and showing in what place or country the person to be served is, or probably may be found;and no such 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 rule.
(3) Order 11, rules 5, 6 and 8, shall apply in relation to any such summons,notice or order as is referred to in paragraph (1) as they apply in relation to notice of a writ.
Registration in High Court of foreign awards. (0.69, r.6).
6. Where an award is made in proceedings on an arbitration in any part of the British
Commonwealth or other territory to which the Reciprocal Enforcement of Judgments Act (Chapter 10) extends, shall in relation to that part of the British Commonwealth have effect, then, if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a Court in that place, Order 67 shall apply in relation to the award as it applies in relation to a judgment given by that court, subject, however, to the following modifications —
(a) for references to the country of the original court there shall be substituted references to the place where the award was made; and
(b) the affidavit required by rule 3 of the said Order must state(in addition to the other matters required by that rule) that to the best of the information or belief of the deponent the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place.
Enforcement. (0.69, r.7). [S 8/99]
7. (1) An application for leave to enforce an award on an arbitration agreement in the same manner as a judgment or order may be made ex parte but the Court hearing the application may direct a summons to be issued.
(2) If the Court directs a summons to be issued, the summons must be by originating summons.
(3) An application for leave must be supported by affidavit —
(a) exhibiting the arbitration agreement and the original award or,in either case, a copy thereof;
(b) stating the name and the usual or last known place of abode or business of the applicant (referred to in this rule as the creditor) and the person against whom it is sought to enforce the award (referred to in this rule as the debtor) respectively; and
(c) as the case may require, stating either that the award has not been complied with or the extent to which it has not been complied with at the date of the application.
(4) An order giving leave must be drawn up by or on behalf of the creditor and must be served on the debtor by delivering a copy to him personally or by sending a copy to him at his usual or last known place of abode or business or in such other manner as the Court may direct.
(5) Service of the order out of the jurisdiction is permissible without leave, and Order 11, rules 3, 4 and 6, shall apply in relation to such an order as they apply in relation to a writ.
(6) Within 14 days after service of the order or, if the order is to be served out of the jurisdiction, within such other period as the Court may fix,the debtor may apply to set aside the order and the award shall not be enforced until after the expiration of that period or, if the debtor applies within that period to set aside the order, until after the application is finally disposed of.
(7) The copy of that order served on the debtor must state the effect of paragraph (6).
(8) In relation to a body corporate this rule shall have effect as if for any reference to the place of abode or business of the creditor or the debtor there were substituted a reference to the registered or principal address of the body corporate; so, however, that nothing in this rule shall affect any enactment which provides for the manner in which a document may be served on a body corporate.
ORDER 70
ADMIRALTY PROCEEDINGS
Application and interpretation. (0.70, r.1).
1. (1) This Order applies to Admiralty causes and matters, and the other provisions of these Rules apply to those causes and matters subject to the provisions of this Order.
(2) In this Order —
“action in rem ” means an Admiralty action in rem ;
“caveat against arrest” means a caveat entered in the caveat book under rule 5;
“caveat against release and payment” means a caveat entered in the caveat book under rule 13;
“caveat book” means the book kept in the Registry in which caveats issued under this Order are entered;
“limitation action” means an action by shipowners or other persons under the Merchant Shipping Act (Chapter 145) for the limitation of the amount of their liability in connection with a ship or other property;
“ship” includes any description of vessel used in navigation.
Issue of writ and entry of appearance. (0.70, r.2).
2. (1) An action in rem must be begun by writ; and the writ must be in Form 155.
(2) Order 6, rule 6, and Order 12 shall apply in relation to such an action.
Service out of jurisdiction of notice of writ. (0.70, r.3).
3. (1) Subject to the following provisions of this rule, service out of the jurisdiction of a notice of a writ, containing any such claim as is mentioned in Order 11, rule 1(1)(i), (ii) and (iii) is permissible with the leave of the Court if, but only if —
(a) the defendant has his habitual residence or a place of business in Brunei Darussalam; or
(b) the cause of action arose within inland waters of or within the limits of a port in Brunei Darussalam; or
(c) an action arising out of the same incident or series of incidents is proceeding in the High Court or has been heard and determined in the HighCourt; or
(d) the defendant has submitted or agreed to submit to the jurisdiction of the High Court.
(2) Order 11, rule 4, shall apply in relation to an application for the grant of leave under this rule as it applies in relation to an application for the grant of leave under rule 1 or 2 of that Order.
(3) Paragraph (1) shall not apply to an action in rem .
(4) The proviso to rule 6(1) of Order 6 and Order 11, rule 1(2), shall not apply to a writ by which any Admiralty action is begun or to notice of any such writ.
Warrant of arrest. (0.70, r.4).
4. (1) After a writ has been issued in an action in rem a warrant in Form 156 for the arrest of the property against which the action or any counterclaim in the action is brought may, subject to the provisions of this rule, be issued at the instance of the plaintiff or of the defendant, as the case may be.
(2) A party applying for the issue out of the Registry of a warrant to arrest any property shall procure a search to be made in the caveat book for the purpose of ascertaining whether there is a caveat against arrest in force with respect to that property.
(3) A warrant of arrest shall not be issued until the party applying for it has filed a praecipe in Form 157 requesting issue of the warrant together with an affidavit made by him or his agent containing the particulars required by paragraphs (6), (7) and (8) so, however, that the Court may, if it thinks fit,allow the warrant to issue notwithstanding that the affidavit does not contain all those particulars.
(4) Except with the leave of the Court, a warrant of arrest shall not be issued in an action in rem against a foreign ship belonging to a port of a State having a consulate in Brunei Darussalam, being an action for possession of the ship or for wages, until notice that the action has been begun has been sent to the consul.
(5) Except with the leave of the Court, a warrant of arrest shall not be issued in an action in rem in which there is a claim arising out of bottomry until the bottomry bond and, if the bond is in a foreign language, a notarial translation thereof is produced to theRegistrar.
(6) Every affidavit must state —
(a) the name, address and occupation of the applicant for the warrant;
(b) the nature of the claim or counterclaim in respect of which the warrant is required and that it has not been satisfied; and
(c) the nature of the property to be arrested and, if the property is a ship, the name of the ship and the port to which she belongs.
(7) Every affidavit in an action in rem brought against a ship must state —
(a) whether the ship against which the action is brought is the ship in connection with which the claim in action arose;
(b) that in the belief of the deponent the person who would, be liable on the claim in an action in personam was, when the cause of action arose, the owner or charterer, or in possession or control, of the ship in connection with which the claim arose and was also, at the time of the issue of the writ, the beneficial owner of all the shares in the ship against which the action is brought; and
(c) the grounds of the deponent’s belief.
(8) Every affidavit in an action in rem for possession of a ship or for wages must state the nationality of the ship against which the action is brought and that the notice (if any) required by paragraph (4) has been sent.
A copy of any such notice must be annexed to the affidavit.
(9) An affidavit in such an action as is referred to in paragraph (5), must have annexed thereto a certified copy of the bottomry bond, or of the translation thereof.
Caveat against arrest. (0.70, r.5).
5. (1) A person who desires to prevent the arrest of any property must file in the Registry a praecipe, in Form 158, signed by him or his solicitor undertaking —
(a) to enter an appearance in any action that may be begun against the property described in the praecipe; and
(b) within 3 days after receiving notice that such an action has been begun, to give bail in the action in a sum not exceeding an amount specified in the praecipe or to pay the amount so specified into Court, and on the filing of the praecipe a caveat against the issue of a warrant to arrest the property described in the praecipe shall be entered in the caveat book.
(2) The fact that there is a caveat against arrest in force shall not prevent the issue of a warrant to arrest the property to which the caveat relates.
Remedy where property protected by caveat is arrested (without good and sufficient reason). (0.70, r.6).
6. Where any property with respect to which a caveat against arrest is in force is arrested in pursuance of a warrant of arrest, the party at whose instance the caveat was entered may apply to the Court by motion for an order under this rule and, on the hearing of the application, the Court, unless it is satisfied that the party procuring the arrest of the property had a good and sufficient reason for so doing, may by order discharge the warrant and may also order the last mentioned party to pay to the applicant damages in respect of the loss suffered by the applicant as a result of the arrest.
Service of writ in action in rem . (0.70, r.7).
7. (1) Subject to paragraph (2), a writ by which an action in rem is begun must be served on the property against which the action is brought except —
(a) where the property is freight, in which case it must be served on the cargo in respect of which the freight is payable or on the ship in which that cargo was carried; or
(a) where the property has been sold and the proceeds of sale paid into Court, in which case it must be served on the Registrar.
(2) A writ need not be served on the property or Registrar mentioned in paragraph (1) if the writ is deemed to have been duly served on the defendant by virtue of Order 10, rule 1(2) or (3).
(3) Where by virtue of this rule a writ is required to be served on any property, the plaintiff must leave the writ and a copy thereof at the Registry and file therein a praecipe in Form 159; and where he does so the sheriff or his officer shall serve the writ on the property described in the praecipe.
The expenses incurred by the sheriff or his officer in affecting service shall be paid to the sheriff on demand by him.
(4) Where the plaintiff in an action in rem , or his solicitor,becomes aware that there is in force a caveat against arrest with respect to the property against which the action is brought, he must serve the writ forthwith on the person at whose instance the caveat was entered.
(5) Where a writ by which an action in rem is begun is amended under Order 20, rule 1, after service thereof, Order 20, rule 1(2), shall not apply and, unless the Court otherwise directs on an application made ex parte , the amended writ must be served on any defendant who has entered an appearance in the action or, if no defendant has entered an appearance therein, on the property or Registrar mentioned in paragraph (1) of this rule.
Committal of solicitor failing to comply with undertaking. (0.70,r.8).
8. Where the solicitor of a party to an action i n rem fails to comply with a written undertaking by him to any other party or his solicitor to enter an appearance in the action, give bail or pay money into Court in lieu of bail, he shall be liable to committal.
Execution etc. of warrant of arrest. (0.70, r.9).
9. (1) A warrant of arrest is valid for 12 months beginning with the date of its issue.
(2) A warrant of arrest may be executed only by the sheriff or his officer.
(3) A warrant of arrest shall not be executed until an undertaking to pay on demand the fees of the sheriff and all expenses incurred by him or on his behalf in respect of the arrest of the property and the care and custody of it while under arrest has been lodged in the sheriff’s office or, where the action is proceeding in a district registry, in that registry.
(4) A warrant of arrest shall not be executed if the party at whose instance it was issued lodges a written request to that effect with the sheriff.
(5) A warrant of arrest issued against freight may be executed by serving the warrant on the cargo in respect of which the freight is payable or on the ship in which that cargo was carried or on both of them.
(6) Subject to paragraph (5), a warrant of arrest must be served on the property against which it is issued.
(7) No instrument except a warrant of arrest shall be served on a weekly holiday.
(8) Within 7 days after the service of a warrant of arrest, the warrant must be filed by the sheriff.
Service on ships etc.: How effected. (0.70, r.10).
10. (1) Subject to paragraph (2) service of a warrant of arrest or writ in an action in rem against a ship, freight or cargo shall be effected by —
(a) affixing the warrant or writ for a short time on any mast of the ship or on the outside of any suitable part of the ship’s superstructure; and
(b) on removing the warrant or writ, leaving a copy of it affixed(in the case of the warrant) in its place or (in the case of the writ) on a sheltered, conspicuous part of the ship.
(2) Service of a warrant of arrest or writ in an action in rem against freight or cargo or both shall, if the cargo has been landed or transhipped, be effected —
(a) by placing the warrant or writ for a short time on the cargo and, on removing the warrant or writ, leaving a copy of it on the cargo; or
(b) if the cargo is in the custody of a person who will not permit access to it, by leaving a copy of the warrant or writ with that person.
Applications with respect to property under arrest. (0.70, r.11).
11. (1) The sheriff may at any time apply to the Court for directions with respect to property under arrest in an action and may, or, if the Court so directs, shall, give notice of the application to any or all of the parties to every action against the property.
(2) The sheriff shall send a copy of any order made under paragraph (1) to all the parties to every action against the property to which the order relates.
Release of property under arrest. (0.70 r.12).
12. (1) Except where property arrested in pursuance of a warrant of arrest is sold under an order of the Court, property which has been so arrested shall only be released under the authority of an instrument of release (in this rule referred to as a “release”), in Form 160, issued out of theRegistry.
(2) A party at whose instance any property was arrested may, before an appearance is entered in the action, file a notice withdrawing the warrant of arrest and, if he does so, a release shall, subject to paragraphs (3) and (5),be issued with respect to that property.
(3) Unless the Court otherwise orders, a release shall not be issued with respect to property as to which a caveat against release is in force.
(4) A release may be issued at the instance of a party interested in the property under arrest if the Court so orders, or, subject to paragraph (3), if all the other parties to the action in which the warrant of arrest was issued consent.
(5) Before a release is issued the party entitled to issue must —
(a) if there is a caveat against release in force as to the property in question, give notice to the party at whose instance it was entered or his solicitor requiring the caveat to be withdrawn; and
(b) file a praecipe in Form 161 requesting issue of a release.
(6) Before property under arrest is released in compliance with a release issued under this rule, the party at whose instance it was issued must, in accordance with the directions of the sheriff, either pay the costs, charges and expenses due in connection with the care and custody of the property while under arrest or give a written undertaking to do so.
(7) The Court, on the application of any party who objects to directions given to him by the sheriff under paragraph (6), may vary or revoke the directions.
Caveat against release and payment. (0.70, r.13).
13. (1) A person who desires to prevent the release of any property under arrest in an action in rem and the payment out of Court of any money in Court representing the proceeds of sale of that property must file in the Registry a praecipe in Form 162, and on the filing of praecipe a caveat against the issue of a release with respect to that property and the payment out of Court of that money shall be entered in the caveat book.
(2) Where the release of any property under arrest is delayed by the entry of a caveat under this rule, any person having an interest in that property may apply to the Court by motion for an order requiring the person who procured the entry of the caveat to pay to the applicant damages in respect of the loss suffered by the applicant by reason of the delay, and the Court, unless it is satisfied that the person procuring the entry of the caveat had a good and sufficient reason for so doing, may make an order accordingly.
Duration of caveats. (0.70 r.l4).
14. (1) Every caveat entered in the caveat book is valid for 6 months beginning with the date of its entry but the person at whose instance a caveat was entered may withdraw it by filing a praecipe in Form 163.
(2) The period of validity of a caveat may not be extended but this provision shall not be taken as preventing the entry of successive caveats.
Bail. (0.70, r.15).
15. (1) Bail on behalf of a party to an action in rem must be given by bond in Form 164; and the sureties to the bond must enter into the bond before a Commissioner for Oaths, not being a Commissioner, who, or whose partner, is acting as solicitor or agent for the party on whose behalf the bail is to be given, or before the Registrar.
(2) Subject to paragraph (3) a surety to a bond must make an affidavit stating that he is able to pay the sum for which the bond is given.
(3) Where a corporation is a surety to a bail bond given on behalf of a party, no affidavit shall be made under paragraph (2) on behalf of the corporation unless the opposite party requires it, but where such an affidavit is required it must be made by a director, manager, secretary or other similar officer of the corporation.
(4) The party on whose behalf bail is given must serve on the opposite party a notice of bail containing the names and addresses of the persons who have given bail on his behalf and of the Commissioner or Registrar before whom the bail bond was entered into; and after the expiration of 24 hours from the service of the notice (or sooner with the consent of the opposite party) he may file the bond and must at the same time file the affidavits (if any) made under paragraph (2) and an affidavit proving due service of the notice of bail to which a copy of that notice must be exhibited.
Interveners. (0.70, r.l6).
16. (1) Where property against which an action in rem is brought is under arrest or money representing the proceeds of sale of that property is in Court, a person who has an interest in that property or money but who is not a defendant to the action may, with the leave of the Court, intervene in the action.
(2) An application for the grant of leave under this rule must be made ex parte by summons supported by an affidavit showing the interest of the applicant in the property against which the action is brought or in the money inCourt.
(3) A person to whom leave is granted to intervene in an action must enter an appearance therein in the Registry within the period specified in the order granting leave; and Order 12, rules l to 4, shall, with the necessary modifications, apply in relation to the entry of appearance by an intervener as if he were a defendant named in the writ.
(4) The Court may order that a person to whom it grants leave to intervene in an action shall, within such period as may be specified in the order, serve on every other party to the action such pleading as may be so specified.
Preliminary acts. (0.70, r.17).
17. (1) In an action to enforce a claim for damage, loss of life or personal injury arising out of a collision between ships, unless the Court otherwise orders, the plaintiff must, within 2 months after issue of the writ, and the defendant must, within 2 months after entering an appearance in the action, and before any pleading is served lodge in the Registry a document (in these Rules referred to as a “preliminary act”) containing a statement of the following particulars:
(i) the names of the ships which came into collision and their ports of registry;
(ii) the date and time of the collision;
(iii) the place of the collision;
(iv) the direction and force of the wind;
(v) the state of the weather;
(vi) the state, direction and force of the tidal or other current;
(vii) the course steered and speed through the water of the ship when the other ship was first seen or immediately before any measures were taken with reference to her presence, whichever was the earlier;
(viii) the lights (if any) carried by the ship;
(ix) (a) the distance and bearing of the other ship if and when her echo was first observed by radar;
(b) the distance, bearing and approximate heading of the other ship when first seen;
(x) what light or combination of lights (if any) of the other ship was first seen;
(xi) what other lights or combination of lights (if any) of the other ship were subsequently seen before the collision, and when;
(xii) what alterations (if any) were made to the course and speed of the ship after the earlier of the two times referred to in article (vii) up to the time of the collision, and when, and what measures (if any), other than alterations of course or speed, were taken to avoid the collision, and when;
(xiii) the parts of each ship which first came into contact and the approximate angle between the two ships at the moment of contact;
(xiv) what sound signals (if any) were given, and when;
(xv) what sound signals (if any) were heard from the other ship, and when.
(2) Every preliminary act shall be sealed by the Registrar and shall be filed in a closed envelope (stamped with an official stamp showing the date of filing), and, unless the Court otherwise orders, no envelope shall be opened until the pleadings are closed and a consent signed by each of the parties or his solicitor to the opening of the preliminary acts is filed with theRegistrar.
(3) Where the Court orders the preliminary acts to be opened, the Court may further order the action to be tried without pleadings but, where the Court orders the action to be so tried, any party who intends to rely on the defence of compulsory pilotage must give notice of his intention to do so to the other parties within 7 days after the opening of the preliminary acts.
(4) Where the Court orders the action to be tried without pleadings, it may also order each party, within such period as may be specified in the order, to file a statement of the grounds on which he charges any other party with negligence in connection with the collision and to serve a copy thereof on that other party.
(5) Order 18, rule 1, shall not apply to an action in which preliminary acts are required but, unless the Court orders the action to be tried without pleadings, the plaintiff must serve a statement of claim on each defendant within 14 days after the latest date on which the preliminary act of any party to the action is filed.
Failure to lodge preliminary act: Proceedings against party in default. (0.70, r.18).
18. (1) Where in such an action as is referred to in rule 17(1) the plaintiff fails to lodge a preliminary act within the prescribed period, any defendant who has lodged such an act may apply to the Court by summons for an order to dismiss the action, and the Court may by order dismiss the action or make such other order on such terms as it thinks just.
(2) Where in such an action, being an action in personam , a defendant fails to lodge a preliminary act within the prescribed period, Order19, rules 2 and 3, shall apply as if the defendant’s failure to lodge the preliminary act within that period were a failure by him to serve a defence on the plaintiff within the period fixed by or under these Rules for service thereof, and the plaintiff, if he has lodged a preliminary act may, subject toOrder 73, rule 7, accordingly enter judgment against that defendant in accordance with the said rule 2 or the said rule 3, as the circumstances of the case require.
(3) Where in such an action, being an action in rem , a defendant fails to lodge a preliminary act within the prescribed period, the plaintiff, if he has lodged such an act, may apply to the Court by motion for judgment against that defendant, and it shall not be necessary for the plaintiff to file or serve a statement of claim or an affidavit before the hearing of the motion.
(4) On the hearing of a motion under paragraph (3) the Court may make such order as it thinks just, and where the defendant does not appear on the hearing and the Court is of opinion that judgment should be given for the plaintiff provided he proves his case, it shall order the plaintiff’s preliminary act to be opened and require the plaintiff to satisfy the Court that his claim is well founded.
The plaintiff’s evidence may, unless the Court otherwise orders, be given by affidavit without any order or direction in that behalf.
(5) Where the plaintiff in accordance with a requirement under paragraph (4) satisfies the Court that his claim is well founded, the Court may give judgment for the claim with or without a reference to the Registrar and may at the same time order the property against which the action is brought to be appraised and sold and the proceeds to be paid into Court or make such order as it thinks just.
(6) The Court may, on such terms as it thinks just, set aside any judgment entered in pursuance of this rule.
(7) In this rule references to be prescribed period shall be construed as references to the period within which by virtue of rule 17(1) or of any order of the Court the plaintiff or defendant, as the context of the reference requires,is required to lodge a preliminary act.
Special provisions as to pleadings in collision etc. actions. (0.70. r.l9).
19. (1) Notwithstanding anything in Order 18, rule 3, the plaintiff in any such action as is referred to in Order 11 rule 1(1)(i), (ii) and (iii) may not serve a reply or a defence to counter-claim on the defendant except with the leave of the Court.
(2) If in such an action there is a counter-claim and no defence to counter-claim by the plaintiff, then, notwithstanding Order 18, rule 14(3), but without prejudice to the other provisions of that rule, there is an implied joinder of issue on the counter-claim, and the joinder of issue operates as a denial of every material allegation of fact made in the counter- claim.
Judgment by default. (0.70, r.20).
20. (1) Where a writ is served under rule 7(4) on a party at whose instance a caveat against arrest was issued, then if —
(a) the sum claimed in the action begun by writ does not exceed the amount specified in the undertaking given by that party or his solicitor to procure the entry of the caveat; and
(b) that party or his solicitor does not within 14 days after service of the writ fulfil the undertaking given by him as aforesaid, the plaintiff may, after filing an affidavit verifying the facts on which the action is based, apply to the Court for judgment by default.
(2) Judgment given under paragraph (1) may be enforced by the arrest of the property against which the action was brought and by committal of the party at whose instance the caveat with respect to that property was entered.
(3) Where a defendant to an action in rem fails to enter an appearance within the time limited for appearing, then, on the expiration of 14days after service of the writ and upon filing an affidavit proving due service of the writ, an affidavit verifying the facts on which the action is based and,if a statement of claim was not indorsed on the writ, a copy of the statement of claim, the plaintiff may apply to the Court for judgment by default.
Where the writ is deemed to have been duly served on the defendant by virtue of Order
10, rule 1(2), or was served on the Registrar under rule 7 of this Order, an affidavit proving due service of the writ need not be filed under this paragraph, but the writ indorsed as mentioned in the said rule 1(2) or indorsed by the Registrar with a statement that he accepts service of the writ must be lodged with the affidavit verifying the facts on which the action is based.
(4) Where a defendant to an action in rem fails to serve a defence on the plaintiff, then, after the expiration of the period fixed by or under these Rules for service of the defence and upon filing an affidavit stating that no defence was served on him by that defendant during that period, an affidavit verifying the facts on which the action is based and, if a statement of claim was not indorsed on the writ, a copy of the statement of claim, the plaintiff may apply to the Court for judgment by default.
(5) Where a defendant to counter-claim in an action in rem fails to serve a defence to counter-claim on the defendant making the counter-claim,then, subject to paragraph (6), after the expiration of the period fixed by or under these Rules for service of the defence to counter-claim and upon filing an affidavit stating that no defence to counter-claim was served on him by the first-mentioned defendant during that period, an affidavit verifying the facts on which the counter-claim is based and a copy of the counter-claim, the defendant making the counter-claim may apply to the Court for judgment by default.
(6) No application may be made under paragraph (5) against the plaintiff in any such action as is referred to in Order 11, rule 1(1)(i), (ii) and (iii).
(7) An application to the Court under this rule must be made by motion and if, on the hearing of the motion, the Court is satisfied that the applicant’s claim is well founded it may give judgment for the claim with or without a reference to the Registrar and may at the same time order the property against which the action or, as the case may be, counterclaim is brought to be appraised and sold and the proceeds to be paid into Court or may make such other order as it thinks just.
(8) In default actions in rem evidence may, unless the Court otherwise orders, be given by affidavit without any order or direction in that behalf.
(9) The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this rule.
(10) Order 13 and Order 19 (except rule 1) shall not apply to actions in rem .
Order for sale of ship: Determination of priority of claims. (0.70,r.21).
21. (1) Where in an action in rem against a ship the Court has ordered the ship to be sold, any party who has obtained or obtains judgment against the ship or proceeds of sale of the ship may —
(a) in a case where the order for sale contains the further order referred to in paragraph (2), after the expiration of the period specified in the order under paragraph (2) (a) ; or
(b) in any other case, after obtaining judgment,
apply to the Court by motion for an order determining the order of priority of the claims against the proceeds of sale of the ship.
(2) Where in an action in rem against a ship the Court orders the ship to be sold, it may further order —
(a) that the order of priority of the claims against the proceeds of sale of the ship shall not be determined until after the expiration of 90days, or of such other period as the Court may specify, beginning with the day on which the proceeds of sale are paid into Court;
(b) that any party to the action or to any other action in rem against the ship or the proceeds of sale thereof may apply to the Court in the action to which he is a party to extend the period specified in the order;
(c) that within 7 days after the date of payment into Court of the proceeds of sale the sheriff shall send for publication in the Gazette and such newspaper or publication, if any, as the Court may direct, a notice complying with paragraph (3).
(3) The notice referred to in paragraph (2) (c) must state—
(a) that the ship (naming her) has been sold by order of the HighCourt in an action in rem , identifying the action;
(b) that the gross proceeds of the sale, specifying the amount thereof, have been paid into Court;
(c) that the order of priority of the claims against the said proceeds will not be determined until after the expiration of the period (specifying it) specified in the order for sale; and
(d) that any person with a claim against the ship or the proceeds of sale thereof, on which he intends to proceed to judgment should do so before the expiration of that period.
(4) The sheriff must lodge in the Registry a copy of each newspaper or publication in which the notice referred to in paragraph (2) (c) appeared.
(5) The expenses incurred by the sheriff in complying with an order of theCourt under this rule shall be included in his expenses relating to the sale of the ship.
(6) An application to the Court to extend the period referred to in paragraph (2) (a) must be made by motion, and a copy of the notice of motion, must, at least 3 days before the day fixed for the hearing thereof, be served on each party who has begun an action in rem against the ship or the proceeds of sale thereof.
(7) In this rule “Court” means the Judge in person.
Appraisement and sale of property. (0.70, r.22).
22. (1) A commission for the appraisement and sale of any property under an order of the Court shall not be issued until the party applying for it has filed a praecipe in Form 165.
(2) Such a commission must, unless the Court otherwise orders, be executed by the sheriff and must be in Form 166.
(3) A commission for appraisement and sale shall not be executed until an undertaking in writing satisfactory to the sheriff to pay the fees and expenses of the sheriff on demand has been lodged in the sheriff’s office.
(4) The sheriff shall pay into Court the gross proceeds of the sale of any property sold by him under a commission for sale and shall bring into Court the account relating to the sale (with vouchers in support) for taxation.
(5) On the taxation of the sheriff’s account relating to a sale any person interested in the proceeds of the sale shall be entitled to be heard, and any decision of the Registrar made on the taxation to which objection is taken may be reviewed in the same manner and by the same persons as any decision of aRegistrar made in taxation proceedings under Order 59, and rules 34 to 36 of that Order shall apply accordingly with the necessary modifications.
Undertaking as to expenses. (0.70, r.22A). [S 7/99]
22A. (1) Every undertaking under rule 9(3) or 12(6) or 22(3) shall be given in writing to the satisfaction of the sheriff.
(2) Where a party is required by rule 9(3) or 22(3) to give to the sheriff an undertaking to pay any fees or expenses, the sheriff may accept instead of an undertaking the deposit with him of such sum as he considers reasonable to meet those fees and expenses.
(3) The Court or a Judge, may on the application of any party who is dissatisfied with a direction or determination of the sheriff under rule 12(6) or this rule, vary or revoke the direction or determination.
Payment into and out of Court. (0.70, r.23).
23. (1) Order 22 (except rules 3, 4, 5 and 12) shall apply in relation to an Admiralty action as it applies to an action for debt or damages.
(2) Subject to paragraph (3), money paid into Court shall not be paid out except in pursuance of an order of the Judge in person.
(3) The Registrar may, with the consent of the parties interested in money paid into Court, order the money to be paid out to the person entitled thereto in the following cases, that is to say —
(a) where a claim has been referred to the Registrar for decision and all the parties to the reference have agreed to accept the Registrar’s decision and to the payment out of any money in Court in accordance with that decision;
(b) where property has been sold and the proceeds of sale thereof paid into Court, and the parties are agreed as to the persons to whom the proceeds shall be paid and the amount to be paid to each of those persons;
(c) where in any other case there is no dispute between the parties.
Summons for directions. (0.70, r.24).
24. (1) Unless a Judge in person otherwise directs, the summons for directions shall be heard by a Judge in person but, subject to that, Order 25 shall apply to the Admiralty actions (other than limitation actions) as it applies to other actions.
On the day on which any party serves on any other party a notice under Order25, rule 7, he must lodge two copies of the notice in the Registry.
(2) An order made on the summons for directions shall determine whether the trial is to be without assessors or with one or more assessors, nautical or otherwise.
(3) An order may be made on the summons for directions, or a direction may be given at the trial, limiting the witnesses who may be called at the trial,whether they are expert witnesses or not.
(4) Any such order or direction as is referred to in paragraphs (2) and (3) including an order made on appeal may be varied or revoked by a subsequent order or direction made or given at or before the trial by the Judge in person or,with the Judge’s consent, by the Registrar.
Fixing date for trial etc. (0.70, r.25).
25. (1) The Court may at any stage of an action, either on an application made by summons by any party or by order made by virtue of rule 33,fix a date for the trial and vacate or alter any such date.
(2) Not later than 7 days after a date for the trial of the action has been fixed, the action must be set down for trial —
(a) where the date was fixed on an application made under paragraph(1), by the applicant;
(b) where the date was fixed by order made by virtue of rule 33, by the plaintiff. Where the applicant or plaintiff does not, within the period fixed by this paragraph, set the action down for trial, any other party may set it down or an application may be made to the Court to dismiss the action for want of prosecution and, on the hearing of any such application, the Court may order the action to be dismissed accordingly or make such other order as it thinks just.
(3) Not less than 7 days before the date fixed for the trial, or such other period before that date as may be specified in general direction given by theChief Justice, the party by whom the action was set down for trial must, unless the Court otherwise orders, file in the Registry —
(a) if trial with one or more assessors has been ordered, a praecipe for his or their attendance; and
(b) three copies or in the case of a trial with one or more assessors, four copies (if with one assessor) and five copies (if with two) of any pleadings, preliminary acts, notices given under rule 17(3) and statements filed under rule 17(4).
(4) If an action which has been set down for trial is settled or withdrawn it shall be the duty of all the parties to notify the Registry of the fact without delay and take such steps as may be necessary to vacate the date fixed for the trial.
(5) Order 21, rule 2(4), Order 33, rule 3, and Order 34 (except rule 6) shall not apply to Admiralty actions.
Stay of proceedings in collision etc. actions until security given. (0.70, r.26).
26. Where an action in rem , being an action to enforce any such claim as is referred to in Order 11, rule l(l)(i), (ii) and (iii), is begun and a cross action in rem arising out of the same collision or other occurrence as the first-mentioned action is subsequently begun, or a counter-claim arising out of that occurrence is made in the first-mentioned action, then —
(a) if the ship in respect of or against which the first-mentioned action is brought has been arrested or security given to prevent her arrest; but
(b) the ship in respect of or against which the cross action is brought or the counter-claim made cannot be arrested and security has not been given to satisfy any judgment given in favour of the party bringing the cross action or making the counter-claim,
the Court may stay proceedings in the first-mentioned action until the security is given to satisfy any judgment given in favour of that party.
Inspection of ship etc. (0.70, r.27).
27. Without prejudice to its powers under Order 29, rules 2 and 3, andOrder 35, rule 5, the Court may, on the application of any party, make an order for the inspection by the assessors (if the action is tried with assessors), or by any party or witness, of any ship or other property, whether movable or immovable, the inspection of which may be necessary or desirable for the purpose of obtaining full information or evidence in connection with any issue in the action.
Shorthand note of oral evidence etc. (0.70, r.28).
28. (1) An official shorthand note shall, if the Court so directs be taken of the proceedings in Court of any cause or matter.
The reference in this paragraph to a shorthand note shall be construed as including a reference to a record of the proceedings made by mechanical means.
(2) The Court may appoint official Admiralty shorthand writers who shall be paid such fees as may be fixed by the Court.
Examination of witnesses and other persons. (0.70, r.29).
29. (1) The power conferred by Order 39, rule 1, shall extend to the making of an order authorising the examination of a witness or person on oath before a Judge sitting in Court as if for the trial of the cause or matter,without the cause or matter having been set down for trial or called on for trial.
(2) The power conferred by the said rule 1 shall also extend to the making of an order, with the consent of the parties, providing for the evidence of a witness being taken as if before an examiner, but without an examiner actually being appointed or being present.
(3) Where an order is made under paragraph (2), it may make provision for any consequential matters and, subject to any provision so made, the following provisions shall have effect —
(a) the party whose witness is to be examined shall provide a shorthand writer to take down the evidence of the witness;
(b) any representative, being an advocate and solicitor, of either of the parties shall have authority to administer the oath to the witness;
(c) the shorthand writer need not himself be sworn but shall certify in writing as correct a transcript of his notes of the evidence and deliver it to the solicitor for the party whose witness was examined, and that solicitor shall file it in the Registry;
(d) unless the parties otherwise agree or the Court otherwise orders, the transcript or a copy thereof shall, before the transcript is filed, be made available to the counsel or other persons who acted as advocates at the examination, and if any of those persons is of opinion that the transcript does not accurately represent the evidence he shall make a certificate specifying the corrections which in his opinion should be made therein, and that certificate must be filed with the transcript.
(4) In actions in which preliminary acts fall to be filed under rule 17, an order shall not be made under Order 39, rule l, authorising any examination of a witness before the preliminary acts have been filed, unless for special reasons the Court thinks fit so to direct.
(5) Order 39 shall apply in relation to an Admiralty cause or matter.
Issue of writ of subpoena. (0.70, r.30).
30. Order 38, rule 14, shall apply in relation to the issue of a writ of subpoena ad testificandum or subpoena duces tecum in anAdmiralty cause or matter.
Proceedings for apportionment of salvage. (0.70, r.31).
31. (1) Proceedings for the apportionment of salvage the aggregate amount of which has already been ascertained shall be begun by originating motion.
(2) The notice of such motion, together with the affidavits in support thereof, must be filed in the Registry 7 days at least before the hearing of the motion, unless the Court gives leave to the contrary, and a copy of the notice and of the affidavits must be served on all the other parties to the proceedings before the originals are filed.
(3) On the hearing of the motion the Judge may exercise any of the jurisdiction conferred by the Merchant Shipping Act (Chapter 145).
Filing and service of notice of motion. (0.70, r.32).
32. (1) Notice of a motion in any action, together with the affidavits (if any) in support thereof, must be filed in the Registry 3 days at least before the hearing of the motion unless the Court gives leave to the contrary.
(2) A copy of the notice of motion and of the affidavits (if any) in support thereof must be served on all the other parties to the proceedings.
Agreement between solicitors may be made order of Court. (0.70,r.33).
33. Any agreement in writing between the solicitors of the parties to a cause or matter, dated and signed by these solicitors, may, if the Registrar thinks it reasonable and such as the Judge would under the circumstances allow,be filed in the Registry, and the agreement shall thereupon become an order ofCourt and have the same effect as if such order had been made by the Judge in person.
Originating summons: Procedure. (0.70, r.34).
34. (1) Order 12 shall apply in relation to an originating summons in Admiralty proceedings to which appearance is required to be entered.
(2) Order 28, rule 2, shall apply in relation to Admiralty proceedings begun by originating summons.
(3) Rule 25 (except paragraph (3)) shall, with any necessary modifications, apply in relation to an Admiralty cause or matter begun by originating summons, and Order 28, rule 9, shall not apply to such a cause or matter.
Limitation action: Parties. (0.70, r.35).
35. (1) In a limitation action the person seeking relief shall be the plaintiff and shall be named in the writ by his name and not described merely as the owner of, or as bearing some other relation to, a particular ship or other property.
(2) The plaintiff must make one of the persons with claims against him in respect of the casualty to which the action relates defendant to the action and may make any or all of the other defendants also.
(3) At least one of the defendants to the action must be named in the writ by his name but the other defendants may be described generally and not named by their names.
(4) The writ must be served on one or more of the defendants who are named by their names therein and need not be served on any other defendant.
(5) In this rule and rules 36, 37 and 38 “name” includes a firm name or the name under which a person carries on his business, and where any person with a claim against the plaintiff in respect of the casualty to which the action relates has described himself for the purposes of his claim merely as the owner of, or as bearing some other relation, to a ship or other property, he may be so described as defendant in the writ and, if so described, shall be deemed for the purposes of the rules aforesaid to have been named in the writ by his name.
Limitation action: Summons for decree or directions. (0.70,r.36).
36. (1) Within 7 days after the entry of appearance by one of the defendants named by their names in the writ, or, if none of them enters an appearance, within 7 days after the time limited for appearing, the plaintiff,without serving a statement of claim, must take out a summons returnable inChambers before the Registrar asking for a decree limiting his liability or, in default of such a decree, for directions as to the further proceedings in the action.
(2) The summons must be supported by an affidavit or affidavits proving—
(a) the plaintiff’s case in the action; and
(b) if none of the defendants named in the writ by their names has entered an appearance, service of the writ on at least one of the defendants so named.
(3) The affidavit in support of the summons must state —
(a) the names of all the persons who, to the knowledge of the plaintiff, have claims against him in respect of the casualty to which the action relates, not being defendants to the action who are named in the writ by their names; and
(b) the address of each of those persons, if known to the plaintiff.
(4) The summons and every affidavit in support thereof must, at least 7clear days before the hearing of the summons, be served on any defendant who has entered an appearance.
(5) On the hearing of the summons the Registrar, if it appears to him that it is not disputed that the plaintiff has a right to limit his liability, shall make a decree limiting the plaintiff's liability and fix the amount to which the liability is to be limited.
(6) On the hearing of the summons the Registrar, if it appears to him that any defendant has not sufficient information to enable him to decide whether or not to dispute that the plaintiff has a right to limit his liability, shall give such directions as appear to him to be appropriate for enabling the defendant to obtain such information and shall adjourn the hearing.
(7) If on the hearing or resumed hearing of the summons the Registrar does not make a decree limiting the plaintiff’s liability, he shall give such directions as to the further proceedings in the action as appear to him to be appropriate including, in particular, a direction requiring the taking out of a summons for directions under Order 25.
(8) Any defendant who, after the Registrar has given directions under paragraph (7), ceases to dispute the plaintiff’s right to limit his liability must forthwith file a notice to that effect in the Registry, as the case may be, and serve a copy on the plaintiff and on any other defendant who has entered an appearance.
(9) If every defendant who disputes the plaintiff’s right to limit his liability serves a notice on the plaintiff under paragraph (8), the plaintiff may take out a summons returnable in Chambers before the Registrar asking for a decree limiting his liability; and paragraphs (4) and (5) shall apply to a summons under this paragraph as they apply to a summons under paragraph (1).
Limitation action: Payment into Court. (0.70, r.36A). [S7/99]
36A. (1) The plaintiff may constitute a limitation fund by paying into Court the sterling equivalent of the number of special drawing rights to which he claims to be entitled to limit his liability under any MerchantShipping law, together with interest thereon from the date of the occurrence giving rise to his liability to the date of payment into Court.
(2) Where the plaintiff does not know the sterling equivalent of the said number of special drawing rights on the date of payment into Court he may calculate the same on the basis of the latest available published sterling equivalent of a special drawing right as fixed by the International MonetaryFund, and in the event of the sterling equivalent of a special drawing right on the date of payment into Court under paragraph (1) being different from that used for calculating the amount of that payment into Court the plaintiff may—
(a) make up any deficiency by making a further payment into Court which, if made within 14 days after the payment into Court under paragraph (1),shall be treated, except for the purposes of the rules relating to the accrual of interest on money paid into Court, as if it had been made on the date of that payment into Court; or
(b) apply to the Court for payment out of any excess amount(together with any interest accrued thereon) paid into Court under paragraph(1).
(3) An application under paragraph (2) (b) may be made ex parte and must be supported by evidence proving the sterling equivalent of the appropriate number of special drawing rights on the date of payment intoCourt.
(4) On making any payment into Court under this rule, the plaintiff shall give notice thereof in writing to every defendant, specifying the date of payment in, the amount paid in, the amount of interest included therein, the rate of such interest and the period to which it relates.
The plaintiff shall also give notice in writing to every defendant of any excess amount (and any interest thereon) paid out to him under paragraph (2) (b) .
(5) Order 22, rules 10 and 11 shall apply to a limitation action as they apply to an action for a debt or damages, and rule 23(2) and (3) of this Order shall apply, with the necessary modifications, to the payment out of money paid into Court under this rule.
Limitation action: Proceedings under decree. (0.70, r.37).
37. (1) Where the only defendants in a limitation action are those named in the writ by their names and all the persons so named have either been served with the writ or entered an appearance, any decree in the action limiting the plaintiff’s liability (whether made by the Registrar or on the trial of the action) —
(a) need not be advertised; but
(b) shall only operate to protect the plaintiff in respect of claims by the persons so named or persons claiming through or under them.
(2) In any case not falling within paragraph (1), any decree in the action limiting the plaintiff’s liability (whether made by the Registrar or on the trial of the action) —
(a) shall be advertised by the plaintiff in such manner and within such time as may be provided by the decree;
(b) shall fix a time within which persons with claims against the plaintiff in respect of the casualty to which the action relates may enter an appearance in the action (if they have not already done so) and file their claims, and, in cases to which rule 38 applies, take out a summons if they think fit, to set the order aside.
(3) The advertisement to be required under paragraph (2) (a) shall,unless for special reasons the Registrar or Judge thinks fit otherwise to provide, be a single advertisement in each of three newspapers specified in the decree, identifying the action, the casualty and the relation of the plaintiff thereto (whether as owner of a ship involved in the casualty or otherwise as the case may be), stating that the decree has been made and specifying the amounts fixed thereby as the limits of the plaintiff's liability and the time allowed thereby for the entering of appearances, the filing of claims and the taking out of summonses to set the decree aside.
The plaintiff must within the time fixed under paragraph (2) (b) file in the Registry a copy of each newspaper in which the advertisement required under paragraph (2) (a) appears.
(4) The time to be allowed under paragraph (2) (b) shall, unless for special reasons the Registrar or Judge thinks fit otherwise to provide, be not less than 2 months from the latest date allowed for the appearance of the advertisements; and after the expiration of the time so allowed, no appearance may be entered, claim filed or summons taken out to set aside the decree except with the leave of the Registrar or, on an appeal, of the Judge.
(5) Save as aforesaid, any decree limiting the plaintiff’s liability(whether made by a Registrar or on the trial of the action) may make any such provisions as is authorised by the Merchant Shipping Act (Chapter 145).
Limitation action: Proceedings to set aside decree. (0.70, r.38).
38. (1) Where a decree limiting the plaintiff’s liability(whether made by a Registrar or on the trial of the action) fixes a time in accordance with rule 37(2), any person with a claim against the plaintiff in respect of the casualty to which the action relates, who —
(a) was not named by his name in the writ as a defendant to the action; or
(b) if so named, neither was served with the writ nor entered an appearance, may, within that time, after entering an appearance, take out a summons returnable in Chambers before the Registrar asking that the decree be set aside.
(2) The summons must be supported by an affidavit or affidavits showing that the defendant in question has a bona fide claim against the plaintiff in respect of the casualty in question and that he has sufficient prima facie grounds for the contention that the plaintiff is not entitled to the relief given him by the decree.
(3) The summons and every affidavit in support thereof must, at least 7clear days before the hearing of the summons, be served on the plaintiff and any defendant who has entered an appearance.
(4) On the hearing of the summons the Registrar, if he is satisfied that the defendant in question has a bona fide claim against the plaintiff and sufficient prima facie grounds for the contention that the plaintiff is not entitled to the relief given him by the decree, shall set the decree aside and give such directions as to the further proceedings in the action as appear to him to be appropriate including, in particular, a direction requiring the taking out of a summons for directions under Order 25.
References to Registrar. (0.70, r.39).
39. (1) Any party (hereafter in this rule, referred to as the“claimant”) making a claim which is referred to the Registrar for decision must, within 2 months after the order is made, or, in a limitation action, within such other period as the Court may direct, file his claim and,unless the reference is in such an action, serve a copy of the claim on every other party.
(2) At any time after the claimant’s claim has been filed or, where the reference is in a limitation action, after the expiration of the time limited by the Court for the filing of claims, but, in any case, not less than28 days before the day appointed for the hearing of the reference, any party to the cause or matter may apply to the Registrar by summons for directions as to the proceedings on the reference, and the Registrar shall give such directions, if any, as he thinks fit including, without prejudice to the generality of the foregoing words, a direction requiring any party to serve on any claimant, within such period as the Registrar may specify, a defence to that claimant’s claim.
(3) The reference shall be heard on a day appointed by the Registrar and,unless the references is in a limitation action or the parties to the reference consent to the appointment of a particular day, the appointment must be made by order on an application by summons made by any party to the cause or matter.
(4) An appointment for the hearing of a reference shall not be made until after the claimant has filed his claim or, where the reference is in a limitation action, until after the expiration of the time limited by the Court for the filing of claims.
(5) Not later than 7 days after an appointment for the hearing of a reference has been made the claimant or, where the reference is in a limitation action, the plaintiff must enter the reference for hearing by lodging in theRegistry a praecipe requesting the entry of the reference in the list for hearing on the day appointed.
(6) Not less than 14 days before the day appointed for the hearing of the reference the claimant must file —
(a) a list, signed by him and every other party, of the items (if any) of his claim which are not disputed, stating the amount (if any) which he and the other parties agree should be allowed in respect of each such item;and
(b) such affidavits or other documentary evidence as is required to support the items of his claim which are disputed,
and, unless the reference is in a limitation action, he must at the same time serve on every other party a copy of every document filed under this paragraph.
(7) If the claimant fails to comply with paragraph (1) or (6) (b) , theCourt may, on the application of any other party to the cause or matter, dismiss the claim.
Hearing of reference. (0.70, r.40).
40. (1) The Registrar may adjourn the hearing of a reference from time to time as he thinks fit.
(2) At or before the hearing of a reference, the Registrar may give a direction limiting the witnesses who may be called, whether expert witnesses or not, but any such direction may, on sufficient cause being shown, be revoked or varied by a subsequent direction given at or before the hearing.
(3) Subject to paragraph (2), evidence may be given orally or by affidavit or in such other manner as may be agreed upon, and the evidence may, on the application of either party, but at the expense in the first instance of the party on whose behalf the application is made, be taken down by the official shorthand writer, if any, and in such a transcript of the shorthand writer's notes, certified by him to be correct, shall be admitted to prove the oral evidence of the witnesses on an objection to the Registrar’s decision.
(4) When the hearing of the reference has been concluded, the Registrar shall —
(a) reduce to writing his decision on the question arising in the reference (including any order as to costs) and cause it to be filed;
(b) cause to be filed either with his decision or subsequently such statement (if any) of the grounds of the decision as he thinks fit; and
(c) send to the parties to the reference notice that he has done so.
(5) Where no statement of the grounds of the Registrar’s decision is filed with his decision and no intimation has been given by the Registrar that he intends to file such a statement later, any party to the reference may,within 14 days after the filing of the decision, make a written request to theRegistrar to file such a statement.
Objection to decision on reference. (0.70 r.41).
41. (1) Any party to a reference to the Registrar may, by motion in objection, apply to a Judge in Court to set aside or vary the decision of the Registrar on the reference, but notice of the motion, specifying the points of objection to the decision, must be filed within 14 days after the date on which notice of the filing of the decision was sent to that party under rule 40(4) or, if a notice of the filing of a statement of the grounds of the decision was subsequently sent to him thereunder, within 14 days after the date on which that notice was sent.
(2) The decision of the Registrar shall be deemed to be given on the date on which it is filed, but unless he or the Judge otherwise directs, the decision shall not be acted upon until the time has elapsed for filing notice of a motion in objection thereto, or while such a motion is pending or remains undisposed of.
(3) A direction shall not be given under paragraph (2) without the parties being given an opportunity of being heard, by may, if the Registrar announces his intended decision at the conclusion of the hearing of the reference, be incorported in his decision as reduced to writing under rule40(4).
Drawing up and entry of judgments and orders. (0.70, r.42).
42. Every judgment given or order made in an Admiralty cause or matter shall be drawn up and shall be entered by an officer of the Registry in the book kept for the purpose.
Inspection of documents filed in Registry. (0.70, r.43).
43. (1) Order 60, rule 4, shall apply in relation to documents filed in the Registry.
(2) For the purpose of the said rule 4, as applied by paragraph (1), a decree made in Chambers in a limitation action shall be deemed to have been made in Court.
ORDER 71
(There is no Order 71)
ORDER 72
CONTENTIOUS PROBATE PROCEEDINGS
Application and interpretation. (0.72, r.1).
1. (1) This Order applies to probate causes and matters and the other provisions of these Rules apply to those causes and matters subject to the provisions of this Order.
(2) In these Rules “probate action” means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious.
(3) In this Order “will” includes a codicil.
Requirements in connection with issue of writ. (0.72, r.2).
2. (1) A probate action must be begun by writ, and the writ must be issued out of the Registry.
(2) Before a writ beginning a probate action is issued it must be indorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased to which the action relates.
(3) A writ beginning an action for the revocation of the grant of probate of the will, or letters of administration of the estate, of a deceased person shall not be issued unless a citation under rule 7 has been issued or the probate or letters of administration, as the case may be, has or have been lodged in theRegistry.
Service of writ out of the jurisdiction. (0.72, r.3).
3. (1) Subject to paragraph (2), service out of the jurisdiction of notice of a writ, by which a probate action is begun is permissible with the leave of the Court.
(2) Order 11, rules 3 and 4, shall apply in relation to an application for the grant of leave under this rule as they apply in relation to an application for the grant of leave under rule 1 or 2 of that Order.
Intervener in probate action. (0.72, r.4).
4. (1) A person not a party to a probate action may apply to theCourt for leave to intervene in a probate action.
(2) An application under this rule must be made by summons supported by an affidavit showing the interest of the applicant in the estate of the deceased.
(3) An applicant who obtains leave to intervene in a probate action shall not be entitled to be heard in the action unless he enters an appearance therein.
(4) Where the Court grants leave under this rule, it may give such directions as to the service of pleadings, the filing of an affidavit of testamentary scripts or other matters as it thinks necessary.
Citation to appear in proceedings. (0.72, r.5).
5. (1) On the application of the plaintiff, or of any other party who has pleaded in a probate action, a citation may be issued against any person not a party to the action who has an adverse interest to the applicant notifying him that if he does not enter an appearance in the action judgment may be given therein without further notice to him.
(2) Where a person on whom a citation under this rule is served fails to enter an appearance in the action, the party on whose application the citation was issued shall not be entitled to be heard at the trial of the action without the leave of the Court unless he has filed an affidavit proving due service of the citation on that person.
Entry of appearance. (0.72, r.6).
6. (1) The office for entry of appearance in a probate action is in all cases the Registry and Order 12, in its application to such an action, shall have effect accordingly.
(2) Without prejudice to paragraph (1), Order 12, rules 1, 2 and 3, shall apply to the entry of appearance by a person outhorised to intervene in a probate action, and by a person cited under rule 5, as if —
(a) that person were a defendant; and
(b) the parties to the action (in the case of an intervener) or the party at whose instance the citation was issued (in the case of a person cited) were the plaintiff.
Citation to bring in grant. (0.72, r.7).
7. In an action for the revocation of the grant of probate of the will, or letters of administration of the estate of a deceased person, a citation against the person to whom the probate or letters of administration, as the case may be, was or were granted requiring him to bring into and leave at the Registry the probate or letters of administration, as the case may be, may be issued on the application of the plaintiff.
Citations. (0.72, r.8).
8. (1) A citation under rule 5 or 7 must be issued out of theRegistry and must be settled by the Court before it is issued.
(2) Before such a citation is issued an affidavit verifying the statements of fact to be made in the citation must be sworn by the person applying for it to be issued:
Provided that the Court may in special circumstances allow the affidavit to be sworn by that person’s solicitor.
(3) Issue of a citation takes place upon its being sealed by an officer of the Registry.
(4) Without prejudice to Order 62, rule 5, a citation under rule 5 or 7 must be served personally on the person cited.
(5) Service out of the jurisdiction of a citation under rule 5 or 7 is permissible but, in the case of a citation under rule 7, only with the leave of the Court.
(6) Order 11, rule 4, shall apply in relation to an application for the grant of leave under paragraph (5) as they apply in relation to an application for the grant of leave under rule 1 or 2 of that Order.
(7) An order granting leave to serve a citation under rule 7 out of the jurisdiction must limit a time within which the person to be served with the citation must comply with it.
(8) Order 11, rules 5, 6 and 8, shall apply in relation to a citation under rule 7 as they apply in relation to notice of a writ.
Affidavit of testamentary script. (0.72, r.9).
9. (1) Unless the Court otherwise directs, the plaintiff and every defendant who has entered an appearance in a probate action must swear an affidavit —
(a) describing any testamentary script of the deceased person,whose estate is the subject of the action, of which he has any knowledge or, if such be the case, stating that he knows of no such script; and
(b) if any such script of which he has knowledge is not in his possession or under his control, giving the name and address of the person in whose possession or under whose control it is or, if such be the case, stating that he does not know the name or address of that person; and any such script which is in the possession or under the control of the deponent must be annexed to his affidavit.
(2) An affidavit required by this rule (together with any testamentary script) must be filed within 14 days after the entry of appearance by a defendant to the action or, if no defendant enters an appearance therein and theCourt does not otherwise direct, before the action is set down for trial.
(3) Where any testamentary script required by this rule to be filed or any part thereof is written in pencil, then, unless the Court otherwise directs, a facsimile copy of that script, or of the page or pages thereof containing the part written in pencil, must be filed and the words which appear in pencil in the original must be underlined in red ink in the copy.
(4) Except with the leave of the Court, a party to a probate action shall not be allowed to inspect an affidavit filed under this rule by any other party to the action, or any testamentary script annexed thereto, unless and until an affidavit sworn by him containing the information referred to in paragraph (1) has been filed.
(5) In this rule “testamentary script” means a will or draft thereof, written instructions for a will made by or at the request or under the instructions of the testator and any document purporting to be evidence of the contents, or to be a copy, of a will which is alleged to have been lost or destroyed.
Default of appearance. (0.72, r.10).
10. (1) Order 13 shall not apply in relation to a probate action.
(2) Where any of several defendants to a probate action fails to enter an appearance, the plaintiff, upon filing an affidavit proving due service of the writ, or notice of the writ, on that defendant may, after the time limited for appearing, proceed with the action as if that defendant had entered an appearance.
(3) Where the defendant, or all the defendants, to a probate action, fails or fail to enter an appearance, and none of the persons (if any) cited under rule 5 has entered an appearance, then, unless on the application of the plaintiff the Court orders the action to be discontinued, the plaintiff may after the time limited for appearing by the defendant apply to the Court for leave to set down the action for trial.
(4) Before making an application for the grant of leave under paragraph (3) the plaintiff must file an affidavit proving due service of writ, or notice of the writ, on the defendant and of the citation, if any.
(5) Where the Court grants leave under paragraph (3), it may order the plaintiff to file an affidavit of testamentary scripts under rule 9.
Service of statement of claim. (0.72, r.11).
11. The plaintiff in a probate action must, unless the Court gives leave to the contrary or a statement of claim is indorsed on the writ, serve a statement of claim on every defendant who enters an appearance in the action and must do so before the expiration of 6 weeks after entery of appearance by that defendant or of 8 days after the filing by him of an affidavit under rule 9,whichever is the later.
Counter-claim. (0.72, r.12).
12. Notwithstanding anything in Order 15, rule 2(1), a defendant to a probate action who alleges that he has any claim or is entitled to any relief or remedy in respect of any matter relating to the grant of probate of the will, or letters of administration of the estate, of the deceased person which is the subject of the action must add to his defence a counter-claim in respect of that matter.
Contents of pleadings. (0.72, r.13).
13. (1) Where the plaintiff in a probate action disputes the interest of a defendant he must allege in his statement of claim that he denies the interest of that defendant.
(2) In a probate action in which the interest by virtue of which a party claims to be entitled to a grant of letters of administration is disputed, the party disputing that interest must show in his pleading that if the allegations made therein are proved he would be entitled to an interest in the estate.
(3) Without prejudice to Order 18, rule 7, any party who pleads that at the time when a will, the subject of the action, was alleged to have been executed the testator did not know and approve of its contents must specify the nature of the case on which he intends to rely, and no allegation in support of that plea which would be relevant in support of any of the following other pleas, that is to say —
(a) that the will was not dully executed;
(b) that at the time of the execution of the will the testator was not of sound mind, memory and understanding; and
(c) that the execution of the will was obtained by undue influence or fraud, shall be made by that party unless that other plea is also pleaded.
Default of pleadings. (0.72, r.14).
14. (1) Order 19 shall not apply in relation to a probate action.
(2) Where any party to a probate action fails to serve on any other party a pleading which he is required by these Rules to serve on that other party, then,unless the Court orders the action to be discontinued, that other party may,after the expiration of the period fixed by or under these Rules for service of the pleading in question, apply to the Court for leave to set down the action for trial.
Discontinuance. (0.72, r.15).
15. (1) Order 21 shall not apply in relation to a probate action.
(2) At any stage of the proceedings in a probate action the Court may, on the application of the plaintiff or of any party to the action who has entered an appearance therein, order the action to be discontinued on such terms as to costs or otherwise as it thinks just, and may further order that a grant of probate of the will, or letters of administration of the estate, of the deceased person, as the case may be,which is the subject of the action be made to the person entitled thereto.
(3) An application for an order under this rule may be made by summons or by notice under Order 25, rule 7.
Compromise of action. (0.72, r.16).
16. Where whether before or after service of the defence in a probate action the parties to the action agree to a compromise, the action may, with the leave of the Court, be set down for trial.
Case for motion. (0.72, r.17).
17. (1) Where an application in a probate cause or matter is to be made to the Court by motion, the applicant must —
(a) not less than 7 clear days before the day on which the motion is to be heard, file a case for motion in the Registry, together with an affidavit verifying the statements of fact made in the case; and
(b) not less than 5 clear days before that day, serve a copy of the case and of every affidavit in support of the motion on any person entitled to be heard in opposition to the motion.
(2) A case for motion must —
(a) set out the proceedings already had in the cause or matter with the dates thereof;
(b) set out the relevant facts in a summary form; and
(c) state the relief or remedy sought by the motion.
Application to Court by summons. (0.72, r.18).
18. Except where these Rules otherwise provide, any application to the Court in a probate cause or matter may be made by summons.
Form of judgments and orders. (0.72, r.19).
19. (1) Every judgment of the Court in a probate cause or matter shall be signed by the Registrar.
(2) Every order made in such a cause or matter shall be entered by an officer of the Registrar in a book kept for the purpose.
Administration Pendente Lite . (0.72, r.20).
20. (1) An application under the Probate and Administration Act(Chapter 11) for the grant of administration may be made to the Registrar by petition.
(2) An administrator to whom a grant is made under the said Act must at the time when he begins proceedings for taxation of his costs, or at such other time as the Registrar may direct, produce at the Registry an account (verified by affidavit) of the moneys and other property received or paid or otherwise dealt with by him in his capacity as such an administrator.
(3) Unless the Court otherwise directs, the account shall be referred to theRegistrar for examination and Order 59, rules 21, 22 and 25 shall with the necessary modifications, apply in relation to proceedings for the examination of the administrator’s costs.
(4) Except where the remuneration of the administrator has been fixed by aJudge, the Registrar shall, on the completion of the examination of the administrator’s account, and taxation of his costs, assess and provide for the administrator’s remuneration.
ORDER 73
DISABILITY
Interpretation. (0.73, r.1).
1. In this Order —
“Act” means any law in force governing mental disorders;
“patient” means a mentally disordered person within the meaning of the Act;
“person under disability” means a person who is an infant or a patient.
Person under disability must sue etc. by next friend or guardian ad litem . (0.73, r.2).
2. (1) A person under disability may not bring, or make a claim in,any proceedings except by his next friend and may not defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him, except by his guardian ad litem .
(2) Subject to the provisions of these Rules, anything which in the ordinary conduct of any proceedings is required or authorised by a provision of theseRules to be done by a party to the proceedings shall or may, if the party is a person under disability, be done by his next friend or guardian ad litem .
(3) A next friend or guardian ad litem of a person under disability must act by a solicitor.
Appointment of next friend or guardian ad litem . (0.73,r.3).
3. (1) This rule shall not apply in relation to a probate action.
(2) Except as provided by paragraph (4) or (5) or by rule 6, an order appointing a person next friend or guardian ad litem of a person under disability is not necessary.
(3) Where a person is authorised under the Act to conduct legal proceedings in the name of a patient or on his behalf, that person shall be entitled to be next friend or guardian ad litem , as the case may be, of the patient in any proceedings to which his authority extends unless, in a case to which paragraph (4) or (5) or rule 6 applies, some other person is appointed by theCourt under that paragraph or rule to be next friend or guardian ad litem , as the case may be, of the patient in those proceedings.
(4) Where a person has been or is next friend or guardian ad litem of a person under disability in any proceedings, no other person shall be entitled to act as such friend or guardian, as the case may be, of the person under disability in those proceedings unless the Court makes an order appointing him such friend or guardian in substitution for the person previously acting in that capacity.
(5) Where, after any proceedings have been begun, a party to the proceedings becomes a patient, an application must be made to the Court for the appointment of a person to be next friend or guardian ad litem , as the case may be,of that party.
(6) Except where the next friend or guardian ad litem , as the case may be, of a person under disability has been appointed by the Court —
(a) the name of any person shall not be used in a cause or matter as next friend of a person under disability;
(b) an appearance shall not be entered in a cause or matter for a person under disability; and
(c) a person under disability shall not be entitled to appear by his guardian ad litem on the hearing of a petition, summons or motion which, or notice of which, has been served on him, unless and until the documents listed in paragraph (7) have been filed in the Registry.
(7) The documents referred to in paragraph (6) are the following —
(a) a written consent in Form 189 to be next friend or guardian ad litem , as the case may be, of the person under disability in the cause or matter in question given by the person proposing to be such friend or guardian;
(b) where the person proposing to be such friend or guardian of the person under disability, being a patient, is authorised under the Act to conduct the proceedings the cause or matter in question in the name of the patient or on his behalf, an office copy, sealed with the seal of the Court, of the order or other authorisation made or given under the Act by virtue of which he is so authorised; and
(c) except where the person proposing to be such friend or guardian of the person under disability, being a patient, is authorised as mentioned in sub-paragraph
(b) , a certificate in Form 190 made by the solicitor for the person under disability certifying —
(i) that he knows or believes, as the case may be, that the person to whom the certificate relates is an infant or a patient, giving (in the case of a patient) the grounds of his knowledge or belief; and
(ii) where the person under disability is a patient, that there is no person authorised as aforesaid; and
(iii) that the person so named has no interest in the cause or matter in question adverse to that of the person under disability.
Probate action: Appointment of next friend or guardian ad litem . (0.73, r.4).
4. (1) This rule applies in relation to a probate action to which a person under disability is a party or in which he intervenes or is cited underOrder 72, rule 5.
(2) Where the person under disability is a patient and a person is authorised under the Act to conduct legal proceedings in the name of the patient or on his behalf, the person so authorised shall be entitled to be next friend of the patient in any probate action to which his authority extends.
(3) Where the person under disability is an infant who is not a patient and he has a statuory guardian or a testamentary guardian who is qualified to be his next friend by virtue or paragraph (8), that guardian shall be entitled to be next friend of the infant in a probate action.
(4) Where the person under disability is an infant who has attained the age of 16 years and is not a patient, and there is no person qualified by virtue of paragraph (3) to be his next friend, the infant may appoint as his next friend a person who is qualified to be such friend by virtue of paragraph (8) and who is one of his next of kin or, where the infant is a married woman, one of her next of kin or her husband.
(5) Where an infant appoints a person under paragraph (4) to be his next friend in a probate action, the person so appointed may be next friend of any other infant in that action provided that the other infant is under 16 years of age, is not a patient and his interest in the action is the same as that of the infant making the appointment.
(6) Where there is no person qualified by virtue of paragraph (2) or (3), as the case may be, to be next friend of a person under disability in a probate action and that person is either not entitled under paragraph (4) to appoint a person to be his next friend or, being so entitled, makes no appointment thereunder, the next friend of the person under disability in the action shall be such one of his next of kin or other person as the Court may appoint.
(7) An application under paragraph (6) for the appointment of a next friend of a person under disability may be made ex parte by summons and must be supported by an affidavit showing —
(a) that there is no person entitled to be such friend by virtue of paragraph (2) or
(3), or appointed as such under paragraph (4), as the circumstances require;and
(b) if such be the case, that the person proposed as next friend is a next of kin of the person under disability.
(c) that the person proposed as next friend is willing and a proper person to act as such and has no interest in the action adverse to that of the person under disability.
(8) A person is qualified to be next friend of a person under disability if he is competent and willing to act as such and has no interest in the action in question adverse to that of the person under disability.
(9) Paragraphs (2) to (8) shall apply for the purpose of determining who shall be guardian ad litem of a person under disability in a probate action as they apply for the purpose of determining who shall be next friend of such a person and references in those paragraphs to a next friend shall be construed accordingly:
Provided that a person authorised as mentioned in paragraph (2) shall not be entitled by virtue of that paragraph to be guardian ad litem of a patient in a probate action if in a case to which rule 6 applies some other person is appointed by the Court under that rule to be guardian ad litem of the patient in that action.
Probate action: Further provisions. (0.73, r.5).
5. (1) Where a party to a probate action is a person under disability, then, unless the next friend or guardian ad litem , as the case may be, of that person has been appointed such friend or guardian by the Court, the writ beginning the action (where that person is a plaintiff) shall not be issued, and an appearance shall not be entered for him in the action (where he is a defendant, intervener, or person cited under Order 72, rule 5) without the consent of the Registrar.
(2) On the making of an application for a consent under paragraph (1) in relation to an infant who is not a patient, there must be produced to theRegistrar —
(a) where the next friend or guardian ad litem of the infant is his statutory guardian or testamentary guardian, an affidavit deposing to the guardianship and age of the infant and showing that the guardian has no interest in the action adverse to that of the infant;
(b) where the next friend or guardian ad litem of the infant is a person appointed under rule 4(4), or under rule 4(4) as applied by rule 4(9) —
(i) the appointment; and
(ii) a written consent to act as next friend or guardian ad litem ,as the case may be, given by the person so appointed; and
(iii) an affidavit deposing to the age of the infant and containing the evidence which would be required by rule 4(7), or by rule 4(7) as so applied, to be contained in an affidavit in support of an application for the appointment of that person as next friend or guardian ad litem , as the case may be, by the Court.
(3) On the making of an application for consent under paragraph (1) in relation to a patient, there must be produced to the Registrar an office copy,sealed with the seal of the Court, of the order or other authorisation made or given under the Act by virtue of which the next friend or guardian ad litem of the patient, as the case may be, is authorised to conduct legal proceedings in the probate action in question in the name of the patient or on his behalf.
Appointment of guardian where person under disability does not appear. (0.73, r.6).
6. (1) Where —
(a) in an action against a person under disability begun by writ, or by originating summons to which an appearance is required to be entered, no appearance is entered in the action for that person; or
(b) the defendant to an action serves a defence and counter-claim on a person under disability who is not already a party to the action, and no appearance is entered for that person,
an application for the appointment by the Court of a guardian ad litem of that person must be made by the plaintiff or defendant, as the case may be, after the time limited (as respects that person) for appearing and before proceeding further with the action or counter-claim.
(2) Where a party to an action has served on a person under disability who is not already a party to the action a third party notice within the meaning of Order 16 and no appearance is entered for that person to that notice, an application for the appointment by the Court of a guardian ad litem of that person must be made by that party after the time limited (as respects that person) for appearing and before proceeding further with the third party proceedings.
(3) Where in any proceedings against a person under disability begun by petition or motion, or by originating summons to which no appearance need be entered, that person does not appear by a guardian ad litem , at the hearing of the petition, motion, or summons, as the case may be, the Court hearing it may appoint a guardian ad litem of that person in the proceedings or direct that an application be made by the petitioner of applicant, as the case may be, for the appointment of such a guardian.
(4) At any stage in the proceedings under any judgment or order, notice of which has been served on a person under disability, the Court may, if no appearance is entered for that person, appoint a guardian ad litem of that person in the proceedings or direct that an application be made for the appointment of such a guardian.
(5) An application under paragraph (1) or (2) must be supported by evidence proving —
(a) that the person to whom the application relates is a person under disability;
(b) that the person proposed as guardian ad litem is willing and a proper person to act as such and has no interest in the proceedings adverse to that of the person under disability;
(c) that the writ, originating summons, defence and counterclaim or third party notice, as the case may be, was duly served on the person under disability; and
(d) subject to paragraph (6), that notice of the application was, after the expiration of the time limited for appearing and at least 7 days before the day named in the notice for hearing of the application, so served on him.
(6) If the Court so directs, notice of an application under paragraph (1) or(2) need not be served on a person under disability.
(7) An application for the appointment of a guardian ad litem made in compliance with a direction of the Court given under paragraph (3) or (4) must be supported by evidence proving the matters referred to in paragraph(5) (b) .
Application to discharge or vary certain orders. (0.73, r.7).
7. An application to the Court on behalf of a person under disability served with an order made ex parte under Order 15, rule 7 for the discharge or variation of the order must be made —
(a) if a next friend or guardian ad litem is acting for that person in the cause or matter in which the order is made, within 14 days after the service of the order on that person;
(b) if there is no next friend or guardian ad litem acting for that person in that cause or matter, within 14 days after the appointment of such a friend or guardian to act for him.
Admission not to be implied from pleading of person under disability. (0.73, r.8).
8. Notwithstanding anything in Order 18, rule 13(1), a person under disability shall not be taken to admit the truth of any allegation of fact made in the pleading of the opposite party by reason only that he has not traversed it in his pleadings.
Discovery and interrogatories. (0.73, r.9).
9. Orders 24 and 26 shall apply to a person under disability and to his next friend or guardian ad litem .
Compromise etc. by person under disability. (0.73, r.10).
10. Where in any proceedings money is claimed by or on behalf of a person under disability, no settlement, compromise or payment and no acceptance of money paid into Court, whenever entered into or made, shall so far as it relates to that person’s claim be valid without the approval of theCourt.
Approval of settlement. (0.73, r.11).
11. (1) Where, before proceedings in which a claim for money is made by or on behalf of a person under disability (whether alone or in conjuntion with any other person) are begun, an agreement is reached for the settlement of the claim, and it is desired to obtain the Court’s approval to the settlement, then notwithstanding, anything in Order 5, rule 2, the claim may be made in proceedings begun by originating summons and in the summons an application may also be made for —
(a) the approval of the Court to the settlement and such orders or directions as may be necessary to give effect to it or as may be necessary or expedient under rule 12; or
(b) alternatively, directions as to the further prosecution of the claim.
(2) An appearance need be entered to an originating summons under this rule.
(3) In this rule “settlement” includes a compromise.
Control of money recovered by person under disability. (0.73,r.12).
12. (1) Where in any proceedings —
(a) money is recovered by or on behalf of, or adjudged or ordered or agreed to be paid to, or for the benefit of, a person under disability;or
(b) money paid into Court is accepted by or on behalf of a plaintiff who is a person under disability,
the money shall be dealt with in accordance with directions given by theCourt.
(2) Directions given under this rule may provide that the money shall, as to the whole or any part thereof, be paid into Court and invested or otherwise dealt with.
(3) Without prejudice to the foregoing provisions of this rule, directions given under this rule may include any general or special directions that theCourt thinks fit to give and, in particular, directions as to how the money is to be applied or dealt with and as to any payment to be made, either directly or out of the amount paid into Court, to the plaintiff, or to the next friend in respect of moneys paid or expenses incurred for or on behalf or for the benefit of the person under disability or for his maintenance or otherwise for his benefit or to the plaintiff’s solicitor in respect of costs.
(4) Where in pursuance of directions given under this rule money is paid into Court to be invested or otherwise dealt with, the money (including any interest thereon) shall not be paid out, nor shall any securities in which the money is invested, or the dividends thereon, be sold, transferred or paid out ofCourt, except in accordance with an order of the Court.
(5) The foregoing provisions of this rule shall apply in relation to a counterclaim by or on behalf of a person under disability, and a claim made by or on behalf of such a person in an action by any other person for relief under the Merchant Shipping Act (Chapter 145) as if for references to a plaintiff and a next friend there were substituted references to a defendant and to a guardian ad litem respectively.
Apportionment by Court. (0.73, r.13).
13. (1) Where a single sum of money is paid into Court under Order22, rule 1, in satisfaction of causes of action and that sum is accepted the money shall be apportioned between the different causes of action by the Court either when giving directions for dealing with it under rule 12 (if that rule applies) or when authorising its payment out of Court.
(2) Where, in an action in which a claim made by or on behalf of more than one person, a sum in respect of damages is adjudged or ordered or agreed to be paid in satisfaction of the claim, or a sum of money paid into Court under Order22, rule 1, is accepted in satisfaction of the cause of action, it shall be apportioned between those person by the Court.
The reference in this paragraph to a sum of money paid into Court shall be construed as including a reference to part of a sum so paid, being the part apportioned by the Court under paragraph (1) to the cause of action.
Service of certain documents on person under disability. (0.73,r.14).
14. (1) Where in any proceedings a document is required to be served personally on any person and that person is a person under disability this rule shall apply.
(2) Subject to the following provisions of this rule and to Order 24, rule 16(3) and Order 26, rule 7(3) the document must be served —
(a) in the case of an infant who is not also a patient on his father or guardian or, if he has no father or guardian, on the person with whom he resides or in whose care he is;
(b) in the case of a patient, on the person (if any) who is authorised under the Act to conduct in the name of the patient or on his behalf the proceedings in connection with which the document is to be served or, if there is no person so authorised, on the person with whom he resides or in whose care he is,
and must be served in the manner required by these Rules with respect to the document in question.
(3) Notwithstanding anything in paragraph (2), the Court may order that a document which has been, or is to be, served on the person under disability or on a person other than a person mentioned in that paragraph shall be deemed to be duly served on the person under disability.
(4) A judgment of order requiring a person to do, or refrain from doing, any act, a notice of motion or summons for the committal of any person, and a writ of subpoena against any person, must if that person is a person under disability, be served personally on him unless the Court otherwise orders.
This paragraph shall not apply to an order for interrogatories or for discovery or inspection of documents.
ORDER 74
PARTNERS
Actions by and against firms within jurisdiction. (0.74, r.1).
1. Subject to the provisions of any written law, any two or more persons claiming to be entitled, or alleged to be liable, as partners in respect of a cause of action and carrying on business within the jurisdiction may sue or be sued, in the name of the firm (if any) of which they were partners at the time when the cause of action accrued.
Disclosure of partners’ names. (0.74, r.2).
2. (1) Any defendant to an action brought by partners in the name of a firm may serve on the plaintiffs or their solicitor a notice requiring them or him forthwith to furnish the defendant with a written statement of the names and places of residence of all the persons who were partners in the firm at the time when the cause of action accrued; and if the notice is not complied with theCourt may order in Form 191 the plaintiffs or their solicitor to furnish the defendant with such a statement and to verify it on oath or otherwise as may be specified in the order, or may order that further proceedings in the action be stayed on such terms as the Court may direct.
(2) When the names of the partners have been declared in compliance with a notice or order given or made under paragraph (1), the proceedings shall continue in the name of the firm but with the same consequences as would have ensued if the persons whose names have been so declared had been named as plaintiffs in the writ.
(3) Paragraph (1) shall have effect in relation to an action brought against partners in the name of a firm as it has effect in relation to an action brought by partners in the name of a firm but with the substitution, for references to the defendant and the plaintiffs, of references to the plaintiff and the defendants respectively, and with the omission of the words“or may order” to the end.
Service of writ. (0.74, r.3).
3. (1) Where by virtue of rule 1 partners are sued in the name of a firm, the writ may, except in the case mentioned in paragraph (2), be served—
(a) on any one or more of the partners; or
(b) at the principal place of business of the partnership within the jurisdiction, on any person having at the time of service the control or management of the partnership business there,
and where service of the writ is effected in accordance with this paragraph,the writ shall be deemed to have been duly served on the firm, whether or not any member of the firm is out of the jurisdiction.
(2) Where a partnership has, to the knowledge of the plaintiff, been dissolved before an action against the firm is begun, the writ by which the action is begun must be served on every person within the jurisdiction sought to be made liable in the action.
(3) Every person on whom a writ is served under paragraph (1) must at the time of service be given a written notice in Form 192 stating whether he is served as a partner or as a person having the control or management of the partnership business or both as a partner and as such a person; and any person on whom a writ is so served but to whom no such notice is given shall be deemed to be served as a partner.
Entry of appearance in an action against firm. (0.74, r.4).
4. (1) Where persons are sued as partners in the name of their firm,appearance may not be entered in the name of the firm but only by the partners thereof in their own names, but the action shall nevertheless continue in the name of the firm.
(2) Where in an action against a firm the writ by which the action is begun is served on a person as a partner, that person, if he denies that he was a partner or liable as such at any material time, may enter an appearance in the action and state in the memorandum of appearance that he does so as a person served as a partner in the defendant firm but who denies that he was a partner at any material time.
An appearance entered in accordance with this paragraph shall, unless and until it is set aside, be treated as an appearance for the defendant firm.
(3) Where an appearance has been entered for a defendant in accordance with paragraph (2) then —
(a) the plaintiff may either apply to the Court to set it aside on the ground that the defendant was a partner or liable as such at a material time or may leave that question to be determined at a later stage on the proceedings;
(b) the defendant may either apply to the Court to set aside the service of the writ on him on the ground that he was not a partner or liable as such at a material time or may at the proper time serve a defence on the plaintiff denying in respect of the plaintiff’s claim either his liability as a partner or the liability of the defendant firm or both.
(4) The Court may at any stage of the proceedings in an action in which a defendant has entered an appearance in accordance with paragraph (2), on the application of the plaintiff or of that defendant order that any question as to the liability of that defendant or as to the liability of the defendant firm be tried in such manner and at such time as the Court directs.
(5) Where in an action against a firm the writ by which the action is begun is served on a person as a person having the control or management of the partnership business, that person may not enter an appearance in the action unless he is a member of the firm sued.
Enforcing judgment or order against firm. (0.74, r.5).
5. (1) Where a judgment is given or order made against a firm,execution to enforce the judgment or order may, subject to rule 6, issue against any property of the firm within the jurisdiction.
(2) Where a judgment is given or order made against a firm, execution to enforce the judgment or order may, subject to rule 6 and to the next following paragraph, issue against any person who —
(a) entered an appearance in the action as a partner; or
(b) having been served as a partner with the writ of summons,failed to enter an appearance in the action; or
(c) admitted in his pleading that he is a partner; or
(d) was adjudged to be a partner.
(3) Execution to enforce a judgment or order given or made against a firm may not issue against a member of the firm who was out of the jurisdiction when the writ of summons was issued unless he —
(a) entered an appearance in the action as a partner; or
(b) was served within the jurisdiction with the writ as a partner;or
(c) was, with the leave of the Court given under Order 11, served out of the jurisdiction with the notice of the writ, as a partner,
and, except as provided by paragraph (1) and by the foregoing provisions of this paragraph, a judgment or order given or made against a firm shall not render liable, release or otherwise affect a member of the firm who was out of the jurisdiction when the writ was issued.
(4) Where a party who has obtained a judgment or order against a firm claims that a person is liable to satisfy the judgment or order as being a member of the firm, and the foregoing provisions of this rule do not apply in relation to that person, that party may apply to the Court for leave to issue execution against that person, the application to be made by summons which must be served personally on that person.
(5) Where the person against whom an application under paragraph (4) is made does not dispute his liability, the Court hearing the application may, subject to paragraph (3), give leave to issue execution against that person and, where that person disputes his liability, the Court may order that the liability of that person be tried and determined in any manner in which any issue or question in an action may be tried and determined.
Enforcing judgment in action between partners etc. (0.74, r.6).
6. (1) Execution to enforce a judgment or order given or made in—
(a) an action by or against a firm in the name of the firm, against or by a member of the firm; or
(b) an action by a firm in the name of the firm against a firm in the name of the firm where those firms have one or more members in common,
shall not issue except with the leave of the Court.
(2) The Court hearing an application under this rule may give such directions including directions as to the taking of accounts and the making of inquiries as may be just.
Attachment of debts owed by firm. (0.74. r.7).
7. (1) An order may be made under Order 49, rule 1, in relation to debts due or accruing due from a firm carrying on business within the jurisdiction notwithstanding that one or more members of the firm is resident out of the jurisdiction.
(2) An order to show cause under the said rule 1 relating to such debts as aforesaid must be served on a member of the firm within the jurisdiction or on some other person having the control or management of the partnership business.
(3) Where an order made under the said rule 1 requires a firm to appear before the Court, an appearance by a member of the firm constitutes a sufficient compliance with the Order.
Actions begun by originating summons. (0.74, r.8).
8. Rules 2 to 7 shall, with the necessary modifications, apply in relation to an action by or against partners in the name of their firm begun by originating summons as they apply in relation to such an action begun by writ.
Application to person carrying on business in another name. (0.74,r.9).
9. An individual carrying on business within the jurisdiction in a name or style other than his own name may be sued in that name or style as if it were the name of a firm, and rules 2 to 8 shall, so far as applicable, apply as if he were a partner and the name in which he carries on business were the name of his firm.
Applications for orders charging partner’s interest in partnership property etc.
(0.74, r.10).
10. (1) Every application to the Court by a judgment creditor of a partner of an order which authorises the High Court or a Judge thereof to make certain orders on the application of a judgment creditor of a partner including an order charging the partner’s interest in the partnership property and every application to the Court by a partner of the judgment debtor made in consequence of the first mentioned application must be made by summons.
(2) The Registrar may exercise the powers conferred on a Judge under this rule.
(3) Every summons issued by a judgment creditor under this rule, and every order made on such a summons, must be served on the judgment debtor and on such of his partners as are within the jurisdiction.
(4) Every summons issued by a partner of a judgment debtor under this rule,and every order made on such a summons, must be served —
(a) on the judgment creditor; and
(b) on the judgment debtor; and
(c) on such of the other partners of the judgment debtor as do not join in the application and are within the jurisdiction.
(5) A summons or order served in accordance with this rule on some only of the partners of a partnership shall be deemed to have been served on all the partners of that partnership.
ORDER 75
DEFAMATION ACTIONS
Application. (0.75, r.1).
1. These Rules apply to actions for libel or slander subject to the following rules of this Order.
Indorsement of claim in libel action. (0.75, r.2).
2. Before a writ in an action for libel is issued it must be indorsed with a statement giving sufficient particulars of the publications in respect of which the action is brought to enable them to be identified.
Obligation to give particulars. (0.75, r.3).
3. (1) Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in respect of such sense.
(2) Where in an action for libel or slander the defendant alleges that, in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, or pleads to the like effect, he must give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true.
(3) Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.
(4) This rule shall apply in relation to a counter-claim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made the defendant.
Provisions as to payment into Court. (0.75, r.4).
4. Where in an action for libel or slander against several defendants sued jointly the plaintiff, in accordance with Order 22, rule 3(1), accepts money paid into Court by any of those defendants in satisfaction of his cause of action against that defendant, then, notwithstanding anything in rule 3(4) of that Order, the action shall be stayed as against that defendant only, but —
(a) the sum recoverable under any judgment given in the plaintiff’s favour against any other defendant in the action by way of damages shall not exceed the amount (if any) by which the amount of the damages exceeds the amount paid into Court by the defendant as against whom the action has been stayed; and
(b) the plaintiff shall not be entitled to his costs of the action against the other defendant after the date of the payment into Court unless either the amount of the damages awarded to him is greater than the amount paid into Court and accepted by him or the Judge is of the opinion that there was reasonable ground for him to proceed with the action against the other defendant.
Statement in open Court. (0.75, r.5).
5. (1) Where a party accepts money paid into Court in satisfaction of a cause of action for libel or slander, the plaintiff or defendant, as the case may be, may apply to a Judge in Chambers by summons for leave to make in openCourt a statement in terms approved by the Judge.
(2) Where a party to an action for libel or slander which is settled before trial desires to made a statement in open Court, an application must be made to the Court for an order that the action be set down for trial, and before the date fixed for the trial the statement must be submitted for the approval of theJudge before whom it is to be made.
Interrogatories not allowed in certain cases. (0.75, r.6).
6. In an action for libel or slander where the defendant pleads that the words or matters complained of are fair comment on a matter of public interest or were published on a privileged occasion, no interrogatories as to the defendant's sources of information or grounds of belief shall be allowed.
Evidence in mitigation of damages. (0.75, r.7).
7. In an action for libel or slander, in which the defendant does not by his defence assert the truth of the statement complained of, the defendant shall not be entitled 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 theJudge, unless 7 days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence.
ORDER 76
ADMINISTRATION AND SIMILAR ACTIONS
Interpretation. (0.76, r.1).
1. In this Order “administration action” means an action for the administration under the direction of the Court of the estate of a deceased person or for the execution under the direction of the Court of a trust.
Determination of questions etc. without administration. (0.76,r.2).
2. (1) An action may be brought for the determination of any question or for any relief which could be determined or granted, as the case may be, in an administration action and a claim need not be made in the action for the administration or execution under the direction of the Court of the estate or trust in connection with which the question arises or the relief is sought.
(2) Without prejudice to the generality of paragraph (1), an action may be brought for the determination of any of the following questions —
(a) any question arising in the administration of the estate of a deceased person or in the execution of a trust;
(b) any question as to the composition of any class of persons having a claim against the estate of a deceased person or a beneficial interest in the estate of such a person or in any property subject to a trust;
(c) any question as to the rights or interests of a person claiming to be a creditor of the estate of a deceased person or to be entitled under a will or on the intestacy of a deceased person or to be beneficially entitled under a trust.
(3) Without prejudice to the generality of paragraph (1) an action may be brought for any of the following reliefs —
(a) an order requiring an executor, administrator or trustee to furnish and, if necessary, verify accounts;
(b) an order requiring the payment into Court of money held by a person in his capacity as executor, administrator or trustee;
(c) an order directing a person to do or abstain from doing a particular act in his capacity as executor, administrator or trustee;
(d) an order approving any sale, purchase, compromise or other transaction by a person in his capacity as executor, administrator or trustee;
(e) an order directing any act to be done in the administration of the estate of a deceased person or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed, as the case may be, under the direction of the Court.
Parties. (0.76, r.3).
3. (1) All the executors or administrators of the estate or trustees of the trust, as the case may be, to which an administration or such an action as is referred to in rule 2 relates must be parties to the action, and where the action is brought by executors, administrators or trustees, any of them who does not consent to being joined as a plaintiff must be made a defendant.
(2) Notwithstanding anything in Order 15, rule 4(2) and without prejudice to the powers of the Court under that Order, all the persons having a beneficial interest in or claim against the estate or having a beneficial interest under the trust, as the case may be, to which such an action as is mentioned in paragraph (1) relates need not be parties to the action; but the plaintiff may make such of those persons whether all or any one or more of them, parties as,having regard to the nature of the relief or remedy claimed in the action, he thinks fit.
(3) Where, in proceedings under a judgment or order given or made in an action for the administration under the direction of the Court of the estate of a deceased person, a claim in respect of a debt or other liability is made against the estate by a person not a party to the action, no party other than the executors or administrators of the estate shall be entitled to appear in any proceedings relating to that claim without the leave of the Court, and the Court may direct or allow any other party to appear either in addition to, or in substitution for, the executors or administrators on such terms as to costs or otherwise as it thinks fit.
Grant of relief in action begun by originating summons. (0.76,r.4).
4. In an administration action or such an action as is referred to in rule 2, the Court may make any certificate or order and grant any relief to which the plaintiff may be entitled by reason of any breach of trust, wilful default or other misconduct of the defendant notwithstanding that the action was begun by originating summons, but the foregoing provision is without prejudice to the power of the Court to make an order underOrder 28, rule 8, in relation to the action.
Judgments and orders in administrations. (0.76, r.5).
5. (1) A judgment or order for the administration or execution under the direction of the Court of an estate or trust need not be given or made unless in the opinion of the Court or the questions at issue between the parties cannot properly be determined otherwise than under such a judgment or order.
(2) Where an administration action is brought by a creditor of the estate of a deceased person or by a person claiming to be entitled under a will or on the intestacy of a deceased person or to be beneficially entitled under a trust, and the plaintiff alleges that no or insufficient accounts have been furnished by the executors, administrators or trustees, as the case may be,then, without prejudice to its other powers, the Court may —
(a) order that proceedings in the action be stayed for a period specified in the order and that the executors administrators, or trustees, as the case may be, shall within that period furnish the plaintiff with proper accounts;
(b) if necessary to prevent proceedings by other creditors or by other persons claiming to be entitled as aforesaid, give judgment or make an order for the administration of the estate to which the action relates and include therein an order that no proceedings are to be taken under the judgment or order, or under any particular account or inquiry directed,without the leave of the Judge in person.
Conduct of sale of trust property. (0.76, r.6).
6. Where in an administration action an order is made for the sale of any property vested in executors, administrators or trustees, those executors,administrators or trustees, as the case may be, shall have the conduct of the sale unless the Court otherwise directs.
ORDER 77
ACTIONS FOR SPECIFIC PERFORMANCE ETC. SUMMARY JUDGMENT
Application by plaintiff for summary judgment. (0.77, r.1).
1. (1) In any action begun by writ indorsed with a claim —
(a) for specific performance of an agreement (whether in writing or not) for the sale, purchase or exchange of any property, or for the grant or assignment of a lease of any property, with or without an alternative claim for damages; or
(b) for rescission of such an agreement; or
(c) for the forfeiture or return of any deposit made under such an agreement, the plaintiff may, on the ground that the defendant has no defence to the action, apply to the Court for judgment.
(2) An application may be made against a defendant under this rule whether or not he has entered an appearance in the action.
Manner in which application under rule 1 must be made. (0.77,r.2).
2. (1) An application under rule 1 must be made by summons supported by an affidavit made by some person who can swear positively to the facts verifying the cause of action and stating that in his belief there is no defence to the action.
(2) The summons must set out or have attached thereto minutes of the judgment sought by the plaintiff.
(3) The summons, a copy of the affidavit in support and of any exhibit referred to therein must be served on the defendant not less than 4 clear days before the return day.
Judgment for plaintiff. (0.77, r.3).
3. Unless on the hearing of an application under rule 1 either theCourt dismisses the application or the defendant satisfied the Court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of the action, the Court may give judgment for the plaintiff in the action.
Leave to defend. (0.77, r.4).
4. (1) A defendant may show cause against an application under rule 1by affidavit or otherwise to the satisfaction of the Court.
(2) The Court may give a defendant against whom such an application is made leave to defend the action either unconditionally or on such terms as to giving security or time or mode of trial or otherwise as it thinks fit.
(3) On the hearing of such an application the Court may order a defendant showing cause or, where that defendant is a body corporate, any director,manager, secretary or other similar officer thereof, or any person purporting to act in any such capacity —
(a) to produce any document;
(b) if it appears the Court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath.
Directions. (0.77, r.5).
5. Where the Court orders that a defendant have leave to defend the action, the Court shall give directions as to the further conduct of action,and, if the Court so directs, Order 25, rules 2 to 7, shall, with the omission of so much of rule 7(1) as requires parties to serve a notice specifying the orders and directions which they require and with any other necessary modification apply as if the application under rule 1 were a summons for directions.
Costs. (0.77, r.6).
6. If the plaintiff makes an application under rule 1 where the case is not within this Order, or if it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, then, without prejudice to Order 59, and, in particular, to rule 4(1) thereof, the Court may dismiss the application with costs and may, if the plaintiff is not an assisted person, require the costs to be paid by him forthwith.
Setting aside judgment. (0.77, r.7).
7. Any judgment given against a defendant who does not appear at the hearing of an application under rule 1 may be set aside or varied by the Court on such terms as it thinks just.
ORDER 78
DEBENTURE HOLDERS’ ACTION: RECEIVER’S REGISTER
Receiver’s register. (0.78, r.1).
1. Every receiver appointed by the Court in an action to enforce registered debenture or registered debenture stock shall, if so directed by the Court, keep a register of transfers of, and other transmissions of title to, such debenture or stock (in this Order referred to as the “receiver’s register”).
Registration of transfers etc. (0.78, r.2).
2. (1) Where a receiver is required by rule 1 to keep a receiver’s register, then, on the application of any person entitled to any debentures or debenture stock by virtue of any transfer or other transmission of title, and on production of such evidence of identity and title as the receiver may reasonably require, the receiver shall, subject to the following provisions of this rule, register the transfer or other transmission of title in that register.
(2) Before registering a transfer the receiver must, unless the due execution of the transfer is proved by affidavit, send by post to the registered holder of the debentures or debenture stock transferred at his registered address a notice stating —
(a) that an application for the registration of the transfer has been made; and
(b) that the transfer will be registered unless within the period specified in the notice the holder informs the receiver that he objects to the registration,
and no transfer shall be registered until the period so specified has elapsed.
The period to be specified in the notice shall in no case be less than 7 days after a reply from the registered holder would in the ordinary course of post reach the receiver if the holder had replied to the notice on the day following the day when in the ordinary course of post the notice would have been delivered at the place to which it was addressed.
(3) On registering a transfer or other transmission of title under this rule the receiver must indorse a memorandum thereof on the debenture or certificate of debenture stock, as the case may be, transferred or transmitted, containing a reference to the action and to the order appointing him receiver.
Application for rectification of receiver’s register. (0.78,r.3).
3. (1) Any person aggrieved by anything done or omission made by a receiver under rule 2 may apply to the Court for rectification of the receiver’s register, the application to be made by summons in the action in which the receiver was appointed.
(2) The summons shall in the first instance be served only on the plaintiff or other party having the conduct of the action but the Court may direct the summons or notice of the application to be served on any other person appearing to be interested.
(3) The Court hearing an application under this rule may decide any question relating to the title of any person who is party to the application to have his name entered in or omitted from the receiver’s register and generally may decide any question necessary or expedient to be decided for the rectification of that register.
Receiver’s register evidence of transfers etc. (0.78, r.4).
4. Any entry made in the receiver’s register, if verified by an affidavit made by the receiver or by such other person as the Court may direct,shall in all proceedings in the action in which the receiver was appointed be evidence of the transfer or transmission of title to which the entry relates and, in particular, shall be accepted as evidence thereof for the purpose of any distribution of assets, notwithstanding that the transfer or transmission has taken place after the making of a certificate in the action certifying the holders of the debentures or debenture stock certificates.
Proof of title of holder of bearer debenture etc. (0.78, r.5).
5. (1) This rule applies in relation to an action to enforce bearer debentures or to enforce debenture stock in respect of which the company has issued debenture stock bearer certificates.
(2) Notwithstanding that judgment has been given in the action and that a certificate has been made therein certifying the holders of such debentures or certificates as are referred to in paragraph (1), the title of any person claiming to be such a holder shall (in the absence of notice of any defect in the title) be sufficiently proved by the production of the debenture or debenture stock certificates, as the case may be, together with a certificate of identification signed by the person producing the debenture or certificate identifying the debenture or certificate produced and certifying the person giving his name and address who is the holder thereof.
(3) Where such a debenture or certificate as is referred to in paragraph (1) is produced in the chambers of the Judge, the solicitor of the plaintiff in the action must cause to be indorsed thereon a notice stating—
(a) that the person whose name and address is specified in the notice (being the person named as the holder of the debenture or certificate in the certificate of identification produced under paragraph (2)) has been recorded in the chambers of the Judge as the holder of the debenture or debenture stock certificate, as the case may be; and
(b) that that person will on producing the debenture or debenture stock certificate, as the case may be, be entitled to receive payment of any dividend in respect of that debenture or stock unless before payment a new holder proves his title in accordance with paragraph (2); and
(c) that if a new holder neglects to prove his title as aforesaid he may incur additional delay, trouble and expense in obtaining payment.
(4) The solicitor of the plaintiff in the action must preserve any certificate of identification produced under paragraph (2) and must keep a record of the debentures and debenture stock certificates so produced and of the names and addresses of the persons producing them and of the holders thereof,and, if the Court requires it, must verify the record by affidavit.
Requirements in connection with payments. (0.78, r.6).
6. (1) Where in an action to enforce any debentures or debenture stock an order is made for payment in respect of the debentures or stock, theTreasury shall not make a payment in respect of any such debenture or stock unless either there is produced to him the certificate for which paragraph (2) provides or the Court has in the case in question for special reason dispensed with the need for the certificate and directed payment to be made without it.
(2) For the purpose of obtaining any such payment the debenture or debenture stock certificate must be produced to the solicitor of the plaintiff in the action or to such other person as the Court may direct and that solicitor or person must indorse thereon a memorandum of payment and must make and sign a certificate certifying that the statement set out in the certificate has been indorsed on the debenture or debenture stock certificate,as the case may be, and send the certificate to the Treasury.
ORDER 79
CHARGE ACTIONS
Application and interpretation. (0.79, r.1).
1. (1) This Order applies to any action (whether begun by writ or originating summons) by a chargee or chargor or by any person having the right to foreclose or redeem any charge, being an action in which there is a claim for any of the following reliefs namely —
(a) payment of moneys secured by the charge;
(b) sale of the charged property;
(c) foreclosure;
(d) delivery of possession (whether before or after foreclosure or without foreclosure) to the chargee by the chargor or by any other person who is or is alleged to be in possession of the property;
(e) redemption;
(f) reconveyance of the property or its release from the security;
(g) delivery of possession by the chargee.
(2) In this Order “charge” includes a legal and an equitable charge.
(3) An action to which this Order applies is referred to in this Order as a charge Order.
(4) These Rules apply to charge actions subject to the following provisions by this action.
Claims for possession: Non-appearance by a defendant. (0.79,r.2).
2. (1) Where in a charge action begun by originating summons, being an action in which the plaintiff is the chargee and claims delivery of possession or payments of moneys secured by the charge or both, any defendant fails to enter an appearance, the following provisions of this rule shall apply,and references in those provisions to the defendant shall be construed to any such defendant.
This rule shall not be taken affecting Order 28, rule 3, or rule 5(2), in so far as it requires any document to be served on, or notice given to, a defendant who has entered an appearance in the action.
(2) Not less than 4 clear days before the day fixed for the first hearing of the originating summons the plaintiff must serve on the defendant a copy of the notice of appointment for the hearing and a copy of the affidavit in support of the summons.
(3) Where the plaintiff claims delivery of possession there must be indorsed on the outside fold of the copy of the affidavit served on the defendant a notice informing the defendant that the plaintiff intends at the hearing to apply for an order to the defendant to deliver up to the plaintiff possession of the charged property and for such other relief (if any) claimed by the originating summons as the plaintiff intends to apply for at the hearing.
(4) Where the hearing is adjourned, then, subject to any directions given by the Court, the plaintiff must serve notice of the appointment for the adjourned hearing, together with a copy of any further affidavit intended to be used at that hearing, on the defendant not less than 2 clear days before the day fixed for the hearing.
A copy of any affidavit served under this paragraph must be indorsed in accordance with paragraph (3).
(5) Service under paragraph (2) or (4), and the manner in which it was effected, may be proved by a certificate signed by the plaintiff, if he sues in person, and otherwise by his solicitor.
The certificate may be indorsed on the affidavit in support of the summons or, as the case may be, on any further affidavit intended to be used at an adjourned hearing.
(6) A copy of any exhibit to an affidavit need not accompany the copy of the affidavit served under paragraph (2) or (4).
(7) Where the plaintiff gives notice to the defendant under Order 3, rule 6,of his intention to proceed, service of the notice, and the manner in which it was effected, may be proved by a certificate signed as mentioned in paragraph(5).
Action for possession or payment. (0.79, r.3).
3. (1) The affidavit in support of the originating summons by which an action to which this rule applies is begun must comply with the following provisions of this rule.
This rule applies to a charge action begun by originating summons in which the plaintiff is the chargee and claims delivery of possession or payment of moneys secured by the charge or both.
(2) The affidavit must exhibit a true copy of the charge and the original charge or, in the case of a registered charge, the charge certificate must be produced at the hearing of the summons.
(3) Where the plaintiff claims delivery of possession the affidavit must show the circumstances under which the right to possession arises and, except where the Court in any case or class otherwise directs, the state of the account between the chargor and chargee with particulars of —
(a) the amount of the advance;
(b) the amount of the repayments;
(c) the amount of any interest or instalments in arrear at the date of issue of the originating summons and at the date of the affidavit; and
(d) the amount remaining due under the charge.
(4) Where the plaintiff claims delivery of possession, the affidavit must give particulars of every person who to the best of the plaintiff’s knowledge is in possession of the charged property.
(5) If the charge creates a tenancy other than a tenancy at will between the chargor and chargee, the affidavit must show how and when the tenancy was determined and if by service of notice when the notice was duly served.
(6) Where the plaintiff claims payment of moneys secured by the charge, the affidavit must prove that the money is due and payable and give the particulars mentioned in paragraph (3).
(7) Where the plaintiff’s claim includes a claim for interest to judgment, the affidavit must state the amount of a day’s interest.
Action by writ: Judgment in default. (0.79, r.4).
4. (1) Notwithstanding anything in Order 13 or Order 19, in a charge action begun by writ judgment in default of appearance or in default of defence shall not be entered except with the leave of the Court.
(2) An application for the grant of leave under this rule must be made by summons and the summons must, notwithstanding anything in Order 62, rule 10, be served on the defendant.
(3) Where a summons for leave under this rule is issued, rule 2(2) to (7) shall apply in relation to the action subject to the modification that for references therein to the originating summons, and for the reference in paragraph (2) to the notice of appointment, there shall be substituted references to the summons.
(4) Where a summons for leave under this rule is issued in an action to which rule 3 would apply had the action been begun by originating summons, the affidavit in support of the summons must contain the information required by that rule.
Foreclosure in redemption action. (0.79, r.5).
5. Where foreclosure has taken place by reason of the failure of the plaintiff in a charge action for redemption to redeem, the defendant in whose favour the foreclosure has taken place may apply by motion for an order for delivery to him of possession of the charged property, and the Court may make such order thereon as it thinks fit.
ORDER 80
PROCEEDINGS RELATING TO INFANTS
Applications under guardianship legislation. (0.80, r.1).
1. Where there is pending any action or other proceeding by reason of which an infant is a ward of court, any application under any law in force with respect of the guardianship of infants, with respect to that infant may be made by summons in the proceeding, except in that case any such application must be made by originating summons.
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Defendants to summons. (0.80, r.2).
2. (1) Where the infant with respect to whom an application under theAct is made is not the plaintiff, he shall not, unless the Court otherwise directs, be made a defendant to the summons or, if the application is made by ordinary summons, be served with the summons, but, subject to paragraph (2), any other person appearing to be interested in, or affected by the application shall be made a defendant or served with the summons, as the case may be.
(2) The Court may dispense with service of the summons (whether originating or ordinary) on any person and may order it to be served on any person not originally served.
Applications as to guardianship maintenance etc. (0.80, r.3).
3. (1) Applications as to the guardianship, maintenance or advancement of infants may be disposed of in Chambers.
(2) A guardian’s account must be verified and passed in the same manner as that provided by Order 30 in relation to a receiver’s account or in such other manner as the Court may direct.
ORDER 81
BILLS OF SALE ACT
Rectification of register. (0.81, r.1).
1. (1) Every application to the Court under the Bills of Sale Act(Chapter 70) (hereafter in this Order referred to as “the Act”) for an order —
(a) that any omission to register a bill of sale or an affidavit of renewal thereof within the time prescribed by that Act be rectified by extending the time for such registration; or
(b) that any omission or mis-statement of the name, residence or occupation of any person be rectified by the insertion in the register of his true name, residence or occupation,
must be made by summons ex parte to the Registrar.
(2) Every application for such an order as is described in paragraph (1) shall be supported by an affidavit setting out particulars of the bill of sale and of the omission or mis- statement in question and stating the grounds on which the application is made.
Entry of satisfaction. (0.81, r.2).
2. (1) Every application under the Act to the Registrar for an order that a memorandum of satisfaction be written on a registered copy of a bill of sale must —
(a) if a consent to the satisfaction signed by the person entitled to the benefit of the bill of sale can be obtained, be made ex parte ;
(b) in all other cases, be made by originating summons.
(2) An ex parte application under paragraph (1) (a) must be supported by —
(a) particulars of the consent referred to in that paragraph; and
(b) an affidavit by a witness who attested the consent verifying the signature on it.
(3) An originating summons under paragraph (1) (b) must be served on the person entitled to the benefit of the bill of sale, and must be supported by evidence that the debt (if any) for which the bill of sale was made has been satisfied or discharged.
(4) No appearance need be entered to an originating summons under paragraph (1) (b) .
Restraining removal on sale of goods seized. (0.81, r.3).
3. No appearance need be entered to an originating summons by which an application to the Court under the Act must be made.
Search of register. (0.81, r.4).
4. The Registrar shall, on a request in writing giving sufficient particulars, and on payment of the prescribed fee, cause a search to be made in the register of bills of sale and issue a certificate of the result of the search.
ORDER 82
(There is no Order 82)
ORDER 83
COMPANIES ACT
Interpretation. (0.83, r.1).
1. In this Order “Act” means the Companies Act (Chapter39).
Applications to be made by originating summons. (0.83, r.2).
2. (1) Unless otherwise provided in the Act, and except in the case of the applications mentioned in rules 3, 4 and 5, every application under theAct must, in accordance with Order 5, rule 3, be made by originating summons.
(2) No appearance need be entered to an originating summons under this rule unless the application made by the summons is —
(a) an application under the Act for an order where an order approving the compromise or arrangement to which the application relates has previously been made; or
(b) an application under the Act for an order directing a receiver or manager of a company to make good any such default; or
(c) an application under the Act for an order directing a company and any officer thereof to make good any such default as is mentioned in that section.
(3) An application under the Act may be made by ex parte originating summons.
Applications to be made by originating summons or motion. (0.83,r.3).
3. (1) An application under the Act for rectification of the register of members of a company may be made by originating summons or originating motion.
(2) No appearance need be entered to an originating summons under this rule.
Applications to be made by originating motion. (0.83, r.4).
4. The following applications under the Act must be made by originating motion, namely, applications —
(a) under the Act for an order that a company be relieved from the consequences of default in complying with conditions constituting the company a private company;
(b) under the Act for an order validating the issue or allotment of shares improperly issued or confirming the terms of issue or allotment thereof;
(c) under the Act for an order to confirm, set aside or vary a direction of the holders of the interests;
(d) under the Act for an order to confirm a winding up resolution;
(e) under the Act for an inquiry into any such case as is mentioned therein;
(f) under the Act for an order declaring a dissolution of a company which has not been wound up to have been void.
Applications to be made by petition. (0.83, r.5).
5. The following applications under the Act must be made by petition, namely, applications —
(a) under the Act to cancel the alteration of a company’s objects;
(b) under the Act to confirm the issue by a company of shares at a discount;
(c) under the Act to confirm a reduction of the share premium account of a company;
(d) under the Act to confirm a reduction of the capital redemption reserve fund of a company;
(e) under the Act to confirm a reduction of the share capital of a company;
(f) under the Act to cancel any variation or abrogation of the rights attached to any class of shares in a company;
(g) the Act to approve a compromise or arrangement between a company and its members or any class of them;
(h) under the Act for relief in cases of oppression;
(i) under the Act for an order restoring the name of a company to theRegister;
(j) under the Act for relief from liability of an officer of a company or any other person to whom this section applies.
Entitlement of proceedings. (0.83, r.6).
6. (1) Every originating summons, notice of originating motion and petition to which this Order relates and all affidavits notices and other documents in those proceedings must be entitled in the matter of the company in question and in the matter of the Act.
(2) The originating summons by which an application for leave under the Act is made must be entitled in the matter of the company (if any) in relation to which the applicant was convicted and in the matter of the Act.
Summons for directions. (0.83, r.7).
7. (1) After presentation of a petition by which any such application as is mentioned in rule 5 is made, the petitioner, except where his application is one of those mentioned in paragraph (2), must take out a summons for directions under this rule.
(2) The application referred to in paragraph (1) are —
(a) an application under the Act to confirm the issue by a company of shares at a discount;
(b) an application under the Act to approve a compromise or arrangement unless there is included in the petition for such approval an application for an order under the Act; and
(c) an application under the Act for an order restoring the name of a company to the register.
(3) On the hearing of the summons the Court may by order give such directions as to the proceedings to be taken before the hearing of the petition as it thinks fit including in particular, directions for the publication of notices and the making of any inquiry.
(4) Where the application made by the petition is to confirm a reduction of the share capital, the share premium account, or the capital redemption reserve fund, of a company, then, without prejudice to the generality of paragraph (3),the Court may give directions —
(a) for an inquiry to be made as to the debts of, and claims against, the company or as to any class or classes of such debts or claims;
(b) as to the proceedings to be taken for settling the list of creditors entitled to object to the reduction and fixing the date by reference to which the list is to be made,
and the power of the Court under the Act to direct that the Act shall not apply as regards any class of creditors may be exercised on any hearing of the summons.
(5) Rules 8 to 13 shall have effect subject to any directions given by theCourt under this rule.
Inquiry as to debts: Company to make list of creditors. (0.83,r.8).
8. (1) Where under rule 7 the Court orders such an inquiry as is mentioned in paragraph
(4) thereof, the company in question must, within 7 days after the making of the order, file in the Registry an affidavit made by an officer of the company competent to make it verifying a list containing —
(a) the name and address of every creditor entitled to any debt or claim to which the inquiry extends;
(b) the amount due to each creditor in respect of such debt or claim or, in the case of a debt or claim which is subject to any contingency or sounds only in damages or for some other reason does not bear a certain value, a just estimate of the value thereof; and
(c) the total of those amounts and values.
(2) The deponent must state in the affidavit his belief that at the date fixed by the Court as the date by reference to which the list is to be made there is no debt or claim which, if that date were the commencement of the winding up of the company, would be admissible in proof against the company,other than the debts or claims set out in the list and any debts or claims to which the inquiry does not extend, and must also state his means of knowledge of the matters deposed to.
(3) The list must be left at the Registry not later than one day after the affidavit is filed.
Inspection of list of creditors. (0.83, r.9).
9. (1) Copies of the list made under rule 8 with the omission, unless the Court otherwise directs, of the amount due to each creditor and the estimated value of any debt or claim to which any creditor is entitled, shall be kept at the registered office of the company and at the office of that company’s solicitor.
(2) Any person shall be entitled during ordinary business hours, on payment of a fee of fifty cents, to inspect the said list at any such office and to take extracts therefrom.
Notice to creditors. (0.83, r.10).
10. Within 7 days after filing the affidavit required by rule 8 the company must send by post to each creditor named in the list exhibited to the affidavit, at his last known address, a notice stating —
(a) the amount of the reduction sought to be confirmed;
(b) the effect of the order directing an inquiry as to debts and claims;
(c) the amount or value specified in the list as due or estimated to be due to that creditor; and
(d) the time fixed by the Court within which, if he claims to be entitled to a larger amount, he must send particulars of his debt or claim and the name and address of his solicitor, if any, to the company’s solicitor.
Advertisement of petition and list of creditors. (0.83, r.11).
11. After filling the affidavit required by rule 8 the company must insert, in such newspapers and at such times as the Court directs, a notice stating —
(a) the date of presentation of the petition and the amount of the reduction thereby sought to be confirmed;
(b) the inquiry ordered by the Court under rule 7;
(c) the places where the list of creditors may be inspected in accordance with rule 9; and
(d) the time within which any creditor not named in the list who claims to be entitled to any debt or claim to which the inquiry extends must send his name and address, the name and address of the solicitor, if any, and particulars of his debt or claim to the company’s solicitor.
Affidavit as to claims made by creditors. (0.83, r.12).
12. Within such time as the Court directs the company must file in theRegistry an affidavit made by the company’s solicitor and an officer of the company competent to make it —
(a) proving service of the notices mentioned in rule 10 and advertisement of the notice mentioned in rule 11;
(b) verifying a list containing the names and addresses of the persons (if any) who in pursuance of such notices sent in particulars of debts or claims, specifying the amount of each debt or claim;
(c) distinguishing in such list those debts or claims which are wholly, or as to any and what part thereof, admitted by the company, disputed by the company or alleged by the company to be outside the scope of the inquiry;and (d) stating which of the persons named in the list made under rule8, and which of the persons named in the list made under this rule, have been paid or consent to the reduction sought to be confirmed.
Adjudication of disputed claims. (0.83, r.13).
13. If the company contends that a person is not entitled to be entered in the list of creditors in respect of any debt or claim or in respect of the full amount claimed by him in respect of any debt or claim, then, unless the company is willing to secure payment of that debt or claim by appropriating the full amount of the debt or claim, the company must, if the Court so directs,send to that person by post at his last known address a notice requiring him—
(a) within such time as may be specified in the notice, being not less than 4 clear days after service thereof, to file an affidavit proving is debt or claim or, as the case may be, so much thereof as is not admitted by the company; and
(b) to attend the adjudication of his debt or claim at the place and time specified in the notice, being the time appointed by the Court for the adjudication of debts and claims.
Certifying list of creditors entitled to object to reduction. (0.83,r.14).
14. The list of creditors entitled to object to such reduction as is mentioned in rule 7(4), as settled by the Court under the Act, shall be certified and filed by the Registrar and his certificate shall —
(a) specify the debts or claims (if any) disallowed by theCourt;
(b) distinguish the debts or claims (if any) the full amount of which is admitted by the company, the debts or claims (if any) the full amount of which, though not admitted by the company, the company is willing to appropriate, the debts or claims (if any) the amount of which has been fixed by adjudication of the Court under the Act and other debts or claims;
(c) specify the total amount of the debts or claims payment of which has been secured by appropriation under the said Act;
(d) show which creditors consent to the reduction and the total amount of their debts or claims;
(e) specify the creditors who sought to prove their debts or claims under rule 13 and state which of such debts or claims were allowed.
Evidence of consent of creditor. (0.83, r.15).
15. The consent of a creditor to such reduction as is mentioned in rule 7(4) may be proved in such manner as the Court thinks sufficient.
Time etc. of hearing of petition for confirmation of reduction. (0.83,r.16).
16. (1) A petition for the confirmation of any such reduction as is mentioned in rule 7(4) shall not, where the Court has directed an inquiry pursuant to that rule, be heard before the expiration of at least 8 clear days after the filing of the certificate mentioned in rule 14.
(2) Before the hearing of such a petition, a notice specifying the day appointed for the hearing must be published at such times and in such newspapers as the Court may direct.
Restriction on taking effect of order. (0.83, r.17).
17. Unless the Court otherwise directs, an order under the Act confirming the issue of shares at a discount shall direct that an office copy of the order be delivered to the Registrar of Companies within 10 days after the making of the order or such extended time as the Court may allow and that the order shall not take effect until such copy has been so delivered.
ORDER 84
LODGMENT IN COURT AND PAYMENT TO SHERIFF
Interpretation. (0.84, r.1).
1. In this Order —
“bank” means a bank approved by the Treasury;
“Carry over”, in relation to a fund in Court, means to transfer the fund or any part thereof from one account to another in the books of theTreasury;
“funds” means any money, securities, or other investments standing or to be placed to the account of the Treasury, and includes money placed on deposit;
“funds in Court” means any money, securities, or other investments standing or to be placed to the account of the Treasury, and includes money placed on deposit;
“interest” means the dividends and interest on all the funds referred to in the heading thereof;
“ledger credit” means the title of the cause or matter and the separate account opened or to be opened under an order or otherwise in the books of the Treasury to which any funds are credited or to be credited;
“lodge in Court” means pay or transfer into Court, or deposit inCourt;
“order” means an order or judgment of the High Court or Court ofAppeal whether made in Court or in Chambers.
Lodgment in Court
Payment into court. (0.84, r.2).
2. (1) Subject to paragraph (2), any trustee wishing to make a payment into Court, must apply by summons supported by an affidavit setting out—
(a) a short description of the trust and of the instrument creating it or, as the case may be, of the circumstances in which the trust arose;
(b) the names of the persons interested in or entitled to the money or securities to be paid into Court with their addresses so far as known to him;
(c) his submission to answer all such inquiries relating to the application of such money or securities as the Court may make or direct; and
(d) an address where he may be served with any summons or order, or notice of any proceedings, relating to the money or securities paid intoCourt.
(2) Where the money or securities represents a legacy, or residue or any share thereof, to which an infant or a person resident outside Brunei Darussalam is absolutely entitled, no affidavit need be filed under paragraph (1).
Notice of lodgment. (0.84, r.3).
3. Any person who has lodged money or securities in Court must forthwith give notice of the lodgment to every person appearing to be entitled to, or to have an interest in, the money or securities lodged.
Funds how lodged. (0.84, r.4).
4. (1) Money to be lodged in Court must be lodged by means of a direction to the Treasury in form (a) in Form 131.
(2) Securities issued by a company or by any body corporate constituted under any written law, being fully paid up and free from liability, may be transferred to the Treasury in his official name.
(3) The person lodging under paragraph (2) must execute a transfer thereof,and send such transfer together with the authority in Form 193 to the registered office of the company or body corporate in whose books the securities are to be transferred.
(4) Such company or body corporate must, after registering such transfer,forward the authority to the Treasury with a certificate in Form 193 that the securities have been transferred as therein authorised.
(5) Securities, other than those described in paragraph (2), may be placed in a box or packet and lodged with a direction in form (a) in Form 131with the Treasury.
(6) After inspecting the contents in the box or packet in the presence of the person lodging the same, and seeing that such box or packet is properly marked and secured, the Treasury shall receive the same and give the person lodging a receipt.
(7) The Treasury must, after receiving the money or securities, send to theRegistrar a duplicate of the receipt that had been issued to the person lodging the same, to be filed in the Registry.
Crediting lodgment and dividents. (0.84, r.5).
5. Any principal money or dividends received by the Treasury in respect of securities in Court must be placed in its books, in the case of principal money, to the credit to which the securities whereon such money arose were standing at the time of the receipt thereof, and in the case of dividends,to the credit to which the securities whereon such dividends accrued were standing at the time of closing of the transfer books of such securities previously to the dividends becoming due.
Interest on money lodged in court. (0.84, r.6).
6. (1) Money lodged in Court to the credit of any account shall be deemed to be placed on deposit, and shall be credited with interest at such rate as is from time to time fixed by the Treasury, not being greater than the highest rate of interest which for the time being can be obtained by theGovernment on current account from any bank in the State except —
(a) when money is paid into Court under Order 14, 22, 23 or 70;or
(b) when the amount is less than $500.
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(2) Money on deposit shall be deemed to be withdrawn from deposit when the amount is reduced below $100.
Computation of interest. (0.84, r.7).
7. (1) Interest upon money on deposit must not be computed on a fraction of one dollar.
(2) Interest upon money on deposit accrues by calendar months, and must not be computed by any less period.
(3) Such interest begins on the first day of the calendar month next succeeding that in which the money is placed on deposit, and ceases from the last day of the calendar month next preceding the day of the withdrawal of the money from deposit.
(4) Interest which has accrued for or during the half-year ending on the30th of June and 31st day of December in every year, on money then on deposit must, on or before the fifteen days of the months respectively following, be placed by the Treasury to the credit to which such money is standing on every such half-yearly day.
(5) When money on deposit is withdrawn from deposit, the interest thereon which has accrued and has not been credited must be placed to the credit to which the money is then standing.
(6) When money on deposit consists of sums which have been placed on deposit at different times, and an order is made dealing with the money, and part of such money has to be withdrawn from deposit for the purpose of executing such order, the part or parts of the money dealt with by such order last placed and remaining on deposit at the time of such withdrawal must, for the purpose of computing interest, be treated as so withdrawn unless the order otherwise directs.
(7) Unless otherwise directed by an order, interest credited on money on deposit must, when or so soon as it amounts to or exceeds one hundred dollars,be placed on deposit and, for the purpose of computing interest upon it, must be treated as having been placed on deposit on the last half-yearly day on which any such interest became due.
Applications with respect to funds in Court. (0.84, r.8).
8. (1) Where an application to the High Court —
(a) for the payment or transfer to any person of any funds in Court standing to the credit of any cause or matter or for the transfer of any such funds to a separate account or for the payment to any person of any dividend of or interest on any securities or money comprised in such fund;
(b) for the investment, or change of investment, of any funds inCourt;
(c) for payment of the dividends of or interest on any funds in Court representing or comprising money or securities lodged in Court under any written law; or
(d) for the payment or transfer out of Court of any such funds as are mentioned in subparagraph (c) ,
is made, the application may be disposed of in Chambers.
(2) Subject to paragraph (3), any such application must be made by summons,and unless the application is made in a pending cause or matter or an application for the same purpose has previously been made by petition or originating summons, the summons must be an originating summons.
(3) Where an application under paragraph 1 (d) is required to be made by originating summons then, if the funds to which the application relates do not exceed $10,000 in value, and subject to paragraph (4), the application may be made to the Registrar.
[S 31/00]
(4) This rule does not apply to any application for an order under Order22.
Payment out of funds in Court. (0.84, r.9).
9. (1) Money paid under Order 14, 22 or 23 must be paid out on a direction to the Treasury in form (b) in Form 131.
(2) In all other cases the person entitled to withdraw the funds must lodge with the Treasury a copy of the order authorising withdrawal, and the Treasury must act in accordance with such order.
(3) When an order directs any sums to be ascertained by the certificate of the Registrar, both the order and the certificate in form (c) in Form131 must be sent to the Treasury.
(4) When an order directs payments out of a fund in Court of any costs directed to be taxed, the Registrar must state in his certificate, the name and address of the person to whom such costs are payable.
Name of payee to be stated in order. (0.84, r.10).
10. (1) Every order which directs funds in Court to be paid,transferred, or delivered out must state in full the name of every person to whom such payment, transfer, or delivery is to be made, unless the name is to be stated in a certificate of the Registrar.
(2) In the case of payment to a firm it is sufficient to state the business name of such firm.
(3) When money in Court is by an order directed to be paid to any persons described in the order, or in a certificate of the Registrar, as co-partners,such money may be paid to any one or more of such co-partners, or to the survivor of them.
Payment out on death of payee. (0.84, r.11).
11. (1) When funds in Court are by an order directed to be paid,transferred, or delivered to any person named or described in an order, or in a certificate of the Registrar, except to a person therein expressed to be entitled to such funds as trustee, executor, or administrator, or otherwise than in his own right, or for his own use, such funds, or any portion thereof for the time being remaining unpaid, untransferred, or undelivered, may, unless the order otherwise directs, on proof of the death of such person, whether on or after or, in the case of payment directed to be made to a creditor as such,before the date of such order, be paid, transferred, or delivered to the legal personal representatives of such deceased person, or to the survivors or survivor of them.
(2) If no administration has been taken out to the estate of such deceased person who has died intestate, and whose assets do not exceed the value of ten thousand dollars, including the amount of the funds directed to be so paid, transferred or delivered to him, such funds may be paid,transferred, or delivered to the person who, being widower, widow, child, father, mother, brother or sister of the deceased, would be entitled to take administration to his or her estate, upon a declaration by such person in accordance with Form 194.
(3) When funds in Court are by an order directed to be paid, transferred, or delivered to any persons as legal personal representatives, such funds, or any portion thereof for the time being remaining unpaid, untransferred, or undelivered, may, upon proof of the death of any such representatives, whether on or after the date of such order, be paid, transferred, or delivered to the survivors or survivor of them.
(4) No funds shall under this rule be paid, transferred, or delivered out ofCourt to the legal personal representatives of any person under any probate or letters of administration purporting to be granted at any time subsequent to the expiration of two years from the date of the order directing such payment, transfer, or delivery, or, in case such funds consist of interest or dividends, from the date of the last receipt of such interest or dividends or such order.
(5) When any application for an order such as is referred to in paragraph(1) and (3) is made, notice thereof must be given to the Collector of EstateDuty who shall be entitled to attend and be heard on the matter.
Transfer or investment of funds in Court. (0.84, r.12).
12. (1) When funds in Court are by an order directed to be transferred or invested, the party having the carriage of the order must lodge with the Treasury a copy of the order and the Treasury must act in accordance with such order.
(2) When funds in Court are by an order directed to be invested, the party having the carriage of the order must lodge with the Treasury a copy of the order and the Treasury must thereupon invest such funds in the manner directed by the order.
(3) The Court may direct that any money in Court, other than money under Orders 14, 22, 23 and 70, may be invested in any of the securities in which trustees are by law permitted to invest trust money in their hands.
Proof to Treasury before payment. (0.84, r.13).
13. When any person is entitled under an order or direction to receive any payment from the Treasury, and the Treasury requires evidence of life, or of the fulfilment of any conditions affecting such payment, such evidence may be furnished by a statutory declaration made by a solicitor acting on behalf of such person, or by the person entitled to such payment.
Copy of order or certificate to be sent to Treasury. (0.84,r.14).
14. An office copy of every order of Court and certificate to be acted upon by the Treasury, and of every direction to the Treasury, must be forwarded by the Registrar to the Auditor General.
The Treasury to give certificate of funds in Court. (0.84, r.15).
15. (1) The Treasury, upon a request signed by or on behalf of a person claiming to be interested in any funds in Court standing to the credit of an account specified in such request, must, unless there is good reason for refusing, issue a certificate of the amount and description of such funds, such certificate shall have reference to the morning of the day of the date thereof,and shall not include the transactions of that day.
(2) The Treasury must notify on such certificate the dates of any orders restraining the transfer, sale, delivery out, or payment or other dealing with the funds in Court to the credit of the account mentioned in such certificate,and whether such orders affect principal or interest, and any charging orders affecting such funds, of which respectively he has received notice and the names of persons to whom notice is to be given, or in whose favour such restraining or charging orders have been made.
(3) The Treasury may re-date any such certificate, provided that no alteration in the amount or description of funds has been made since the certificate was issued.
(4) When a cause or matter has been inserted in the list referred to in rule16, that fact shall be notified in the certificate relating thereto.
Publication of list of funds in Court. (0.84, r.16).
16. In the month of January in every year the Treasury shall cause to be published in the Gazette a list of accounts not dealt with for a period of 10 years or more and must give the title and number of the cause or matter and the title of the ledger credit in which funds are outstanding, and the balance of the funds in each account.
Unclaimed funds in Court with Treasury. (0.84, r.17).
17. (1) The funds in Court appearing from the books and accounts to have been in the custody with the Treasury for a period of 15 years and upwards,without any claim having been made and allowed thereto during that period, must be transferred and paid to the Government for the general purposes of theState.
(2) If any claim is made to any part of the funds in Court which are transferred and paid to the Government under paragraph (1), and if such claim is established to the satisfaction of the Court, the Government must pay to the claimant the amount of the principal so transferred and paid as aforesaid, or so much thereof as appears to be due to the claimant.
(3) Nothing in this rule shall authorise the transfer of any funds standing to the separate credit of an infant, or held in an infant’s account pending the coming of age of such infant, until such infant comes of age or dies.
Payment to Sheriff
Sheriff to keep an account book. (0.84, r.18).
18. (1) The Sheriff must keep an account of all sums of money paid or deposited with him and of all sums of money paid out by him in an account book in Form 195.
(2) All money paid or deposited with the sheriff must be kept in a bank or with the Treasury.
(3) No interest shall be payable in respect of any money paid or deposited with the sheriff.
How money paid to Sheriff. (0.84, r.19).
19. Money paid or deposited with the sheriff under these Rules or a judgment or order of a Court must be paid to the proper officer in the Registry who must give a receipt for every sum of money received by him.
Payment in under judgment or order. (0.84, r.20).
20. Where any payment is made under a judgment or order the person making the payment must produce a copy of the judgment or order and he must give notice to the person entitled to the money.
Money not required for making payments on day of receipt. (0.84,r.21).
21. Any money paid or deposited with the sheriff that it is not required for making payments on that day must be paid into the bank or to theTreasury, as the case may be:
Provided that where the payment to the bank or to the Treasury, as the case may be, cannot be made on the day of receipt, it must be made on the morning of the next working day.
The Treasury to grant an imprest. (0.84, r.22).
22. (1) Where the money is kept by the Treasury, he must grant an imprest to the sheriff and the imprest must be kept by the sheriff in a bank.
(2) All cheques in respect of the bank account must be signed by the sheriff and another officer appointed by the Registrar.
Cash book for imprest. (0.84, r.23).
23. (1) The sheriff operating the imprest must maintain a Cash Book in which must be entered all sums received under the imprest (including reimbursements from the Treasury) and all payments made from the imprest.
(2) A supervisory officer must be made personally responsible for making (at least once a week) surprise checks of the Cash Book, for comparing all the entries with receipted vouchers and other relevant documents and for ensuring that the balance of cash agrees with the balance shown in the Cash Book, and the officer must also satisfy himself that cash is not drawn from the bank in excess of normal requirements.
(3) A record of all surprise inspections must be made in the Cash Book.
How payments from imprest to be made. (0.84, r.24).
24. (1) All payments from the imprest must be made by cheques and an acknowledgement received or a receipt obtained from the person to whom the cheque is paid.
(2) When the balance of the imprest reaches a figure sufficient for 7 days’ anticipated requirements, the Cash Book must be balanced and the sums paid from the imprest recovered from the Treasury.
(3) The receipts must be attached to a bill showing the total amount of payments; if the receipts are numerous, the receipts and a machine-list of the amounts only may be attached to the bill.
(4) This bill and attachments must be sent to the Treasury at least 7 days before the money is actually required.
Proof before payment out. (0.84, r.25).
25. Before any money is paid out to any person, the sheriff must require proof to his satisfaction that the person applying for payment is the person entitled or authorised to receive it.
Where money due to Government under any law. (0.84, r.26).
26. Before any money is paid out under any order directing the payment out of any money paid or deposited with the sheriff, the sheriff must satisfy himself that any money due to the Government under any written law of which he has notice has been paid or deducted.
When payment to be made by cheque. (0.84, r.27).
27. (1) All payments by the sheriff of an amount exceeding fifty dollars must be made by cheque payable to the person entitled to receive the payment and marked “payable only within 30 days from date”.
(2) If the payment is to be made to —
(a) any Government department;
(b) any body corporate;
(c) an advocate and solicitor; or
(d) a moneylender,
the cheque must be crossed to the payee’s account and marked “not negotiable”.
(3) Where a cheque has not been cashed within 30 days of its date, a fresh cheque may be issued to replace it.
ORDER 85
COURT FEES
Court fees. (0.85, r.1).
1. The fees and percentages in Appendix B shall be taken and paid in all causes and matters in the Court of Appeal or in the High Court:
[S 8/99]
Provided that nothing herein shall affect any fees fixed by any written law not by these Rules expressly or impliedly repealed.
Manner of payment of fees. (0.85, r.2).
2. The fees and percentages to be taken and paid under this Order shall be collected in such manner as the Chief Justice may from time to time direct.
ORDER 86
MISCELLANEOUS
Language of documents. (0.86, r.1).
1. Any document required for use in pursuance of these Rules shall be in English or Malay, provided that wherever any such document is in Malay it shall be accompanied by a certified or verified translation thereof inEnglish.
Seal of the Court. (0.86, r.2).
2. Every document issued by the Registry for which a Form marked with the word “seal” as prescribed in Appendix A must bear the seal of the Court.
Rejection of irregular documents. (0.86. r.3).
3. The Registrar, or any officer charged with the duty of receiving and filing any document, may reject it if it does not substantially comply with these Rules.
Inherent powers of the Court. (0.86, r.4).
4. For the removal of doubts it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.
ORDER 87
REPEAL
Repeal. (0.87, r.1).
1. The following rules are repealed —
(a) the Brunei Darussalam High Court (Civil Procedure) Rules;
[S 23/90; S 30/91]
(b) the Probate and Administration (Procedure) Rules; and
(c) the Brunei High Court (Scale of Costs) Rules, 1961.
ORDER 88
SUMMARY PROCEEDINGS FOR POSSESSION OF LAND
Proceedings to be brought by originating summons. (0.88, r.1). [S7/99]
1. Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.
Jurisdiction of Registrars. (0.88, r.2). [S 7/99]
2. Proceedings under this Order may be heard and determined by aRegistrar, who may refer them to a Judge if he thinks they should properly be decided by the Judge.
Form of originating summons. (0.88, r.3). [S 7/99]
3. (1) The originating summons shall be in Form No. 8 in Appendix A and no acknowledgment of service of it shall be required.
(2) The originating summons shall be endorsed with or contain a statement showing whether possession is claimed in respect of residential premises or in respect of other land.
Affidavit in support. (0.88, r.4). [S 7/99]
4. The plaintiff shall file in support of the originating summons an affidavit stating —
(a) his interest in the land;
(b) the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises; and
(c) that he does not know the name of any person occupying the land who is not named in the summons,
and, unless the Court directs, any such affidavit may contain statements of information or belief with the sources and grounds thereof.
Service of originating summons. (0.88, r.5). [S 7/99]
5. (1) Where any person in occupation of the land is named in the originating summons, the summons together with a copy of the affidavit in support shall be served on him —
(a) personally; or
(b) by leaving a copy of the summons and of the affidavit or sending them to him, at the premises; or
(c) in such other manner as the Court may direct.
(2) Where any person not named as a defendant is in occupation of the land,the summons shall be served (whether or not it is also required to be served in accordance with paragraph (1)), unless the Court otherwise directs, by—
(a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises and, if practicable,inserting through the letter-box at the premises a copy of the summons and a copy of the affidavit enclosed in a sealed transparent envelope addressed to“the occupiers”; or
(b) placing stakes in the ground at conspicuous parts of the occupied land, to each of which shall be affixed a sealed transparent envelope addressed to “the occupiers” and containing a copy of the summons and a copy of the affidavit.
(3) Every copy of an originating summons for service under paragraph (1) or (2) shall be sealed with the seal of the Supreme Court.
(4) Order 28 shall not apply to proceedings under this Order.
Application by occupier to be made a party. (0.88, r.6). [S7/99]
6. Without prejudice to Order 15, rules 6 and 10, any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as a defendant.
Order for possession. (0.88, r.7). [S 7/99]
7. (1) A final order for possession in proceedings under this Order shall, except in case of emergency and by leave of the Court, not be made—
(a) in the case of residential premises, less than 5 clear days after the date of service of the summons; and
(b) in the case of other land, less than 2 clear days after the date of service of the summons.
(2) Nothing in this Order shall prevent the Court from ordering possession to be given on a specified date, in the exercise of any power which could have been exercised if possession had been claimed in an action begun by writ.
Writ of possession. (0.88, r.8). [S 7/99]
8. (1) Order 45, rule 3(2) shall not apply in relation to an order for possession under this Order but no writ of possession to enforce such an order shall be issued after the expiry of three months from the date of the order without the leave of the Court.
An application for leave may be made ex parte unless the Court otherwise directs.
(2) The writ of possession shall be in Form No. 90.
Setting aside order. (0.88, r.9). [S 7/99]
9. The Court may, on such terms as it thinks just, set aside or vary any order made in proceedings under this Order.
APPENDIX A FORMS No. 1
ORDER FOR CONSOLIDATION 0.4, r.1.
(Title as in action)
Upon the application of .... the plaintiff (or the defendant) in this action and upon reading the affidavit of ... filed the ..... day of ..... , 20 ... and upon hearing ... It is ordered that summons Nos. .... be consolidated with summons Nos. ........ and do proceed as one action and it is further ordered that the title of Summons No ...... be amended by adding to it the titles of ........ (state the numbers of the summons which are being consolidated). (State any other orders or directions given by the Court).
Dated the ........ day of ..., 20 ....
(Seal)
....
Registrar
No. 2
WRIT OF SUMMONS 0.6, r.1.
IN THE HIGH COURT OF BRUNEI DARUSSALAM
Suit No. .... of 20 .......
(Seal)
Between
....... Plaintiff
and
.......... Defendant
THE CHIEF JUSTICE OF BRUNEI DARUSSALAM, IN THE NAME OF HIS MAJESTY
THE SULTAN AND YANG DI-PERTUAN
To ..........
We command you that within eight days after the service of this writ on you,inclusive of the day of such service, you do cause an appearance to be entered for you in a cause at the suit of ........ and take notice, that in default of your so doing the plaintiff may proceed therein to judgment and execution.
WITNESS ..... Registrar of theCourt, the ... day of ........20 .....
....... Plaintiff’s Solicitors ........ Registrar, High Court
Memorandum to be Subscribed on the Writ
This writ may not be served more than twelve calendar months after the above date unless renewed by order of court.
The defendant (or defendants) may appear hereto by entering an appearance (or appearances) either personally or by a solicitor at the Registry of the High Court.
A defendant appearing personally may, if he desires, enter his appearance by post, and the appropriate forms may be obtained by sending cash or a cheque for $ ....... with an addressed envelope to theRegistrar, High Court at Bandar Seri Begawan.
Indorsements to be made on writ before issue.
Indorsement of claim
The plaintiff’s claim is for ...... (If the plaintiff’s claim is for a debt or liquidated demand only, the following indorsement must be added at the foot of that claim:) An $ ... (or such sum as may be allowed on taxation for costs, and also, if the plaintiff obtains an order for substituted service, the further sum of $ ........ (or such sum as may be allowed on taxation). If the amount claimed and costs be paid to the plaintiff or his solicitor within 8 days after service hereof (inclusive of the day of service), further proceedings will be stayed, but if it appears from the indorsement on the writ that the plaintiff is resident outside the scheduled territories, as defined by the Exchange Control Act (Chapter 141), or is acting by order or on behalf of a person so resident, proceedings will only be stayed if the amount claimed and costs is paid into court within the said time and notice of such payment in is given to the plaintiff or his solicitor.
(If the plaintiff sues, or the defendant is sued, in a representative capacity, this must be stated in the indorsement of claim).
Indorsement as to solicitor and address
This writ is issued by ........ of ........ solicitor for the said plaintiff whose address is ... (or where the plaintiff sues in person). This writ is issued by the said plaintiff who resides at ....... and is (state occupation) and (if the plaintiff does not reside within the jurisdiction) whose address for service is ...).
Indorsement as to service
This Writ was served by ... by way of personal service (or as may be) (state manner of service or in accordance with the terms of an order for substituted service) on the defendant (who is known to me) (or who was pointed out to me by ......) (or who admitted to me that he was .......) at (place) on ..... the ........
day of ........ 20 ...
Indorsed the ........ day of ....,20 ........
.... Process Server
No. 3
WRIT OF SUMMONS NOTICE OF WHICH IS TO BE SERVED OUT OF JURISDICTION 0.6, r.1.
(Title as in Form 2)
(Seal)
THE CHIEF JUSTICE OF BRUNEI DARUSSALAM, IN THE NAME AND ON BEHALF OF HISMAJESTY THE SULTAN AND YANG DI-PERTUAN
To .......... We command you ... that within (here insert the number of days directed by the Court or other direction of the Court) after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you, in a cause at the suit of ......; and take notice that, in default of your so doing, the plaintiff may by leave of the Court proceed therein, and judgment may be given in your absence.
WITNESS .... Registrar of the HighCourt at Bandar Seri Begawan the ....... day of ..., 20 ....
..... Plaintiff’s Solicitors .... Registrar, High Court
Memorandum and Indorsements as in Form 2
N.B. — This writ is to be used where the defendant or all the defendants or one or more defendant or defendants is or are out of the jurisdiction.
No. 4
NOTICE OF PAYMENT INTO COURT: EXCHANGE CONTROL ACT, CHAPTER 141 0.6, r.2.
(Title as in action)
Take notice that the sum of $ ........ has been paid into Court pursuant to Order ...... rule ... and the Exchange Control Act (Chapter 141), being the amount of $ ...... due to .... of ........ from ...... of ....... in respect of the said ... being resident outside the scheduled territories for a person acting by order or on behalf of a person resident outside the scheduled territories together with (or less) than the sum of .... $....... costs.
Dated the ........ day of ..., 20 ....
... Solicitor for the .......
Receipt
Received the above sum of ... dollars and cents ....... into Court for the above credit.
$ .......
Dated the ........ day of ..., 20 ....
.... Registrar
No. 5
NOTICE OF RENEWAL OF WRIT 0.6, r.7.
0.46, r.6.
Renewed for ...... months from the .... day of ........ 20 ...,
by an order of Court dated the ... day of ..., 20 ......
Dated the ...... day of ......, 20....
.... Registrar
No. 6
ORIGINATING SUMMONS 0.7, r.2.
(Where Appearance Required)
IN THE HIGH COURT OF BRUNEI DARUSSALAM O.S. No. ... of 20 .....
(Seal)
(In the matter of .... ) Between
....... Plaintiff
and
.......... Defendant
To .......... Let the defendant, within 8 days (or if the summons is to be served out of the jurisdiction, insert the time for appearance fixed by the order giving leave to issue the summons and serve it out of the jurisdiction) after service of the summons on him, inclusive of the day of service, caused an appearance to be entered to the summons, which is issued on the application of the plantiff ........ of ........ By this summons the plaintiff claims against the defendant (or seeks the determination of the Court on the following questions, namely ...... or as may be).
If the defendant does not enter an appearance, such judgment may be given or order made against or in relation to him as the Court may think just and expedient.
Dated the ........ day of ..., 20 ....
.... Registrar
Memorandum to be subscribed on the summons
This summons is taken out by .... of ...... solicitor for the said plaintiff whose address is ... (or where the plaintiff sues in person). This summons is taken out by the said plaintiff who resides at the abovenamed address or as may be and is (state occupation) and (if the plaintiff does not reside within the jurisdiction whose address for service is ...... Note — This summons may not be served more than 12 calender months after the above date unless renewed by order or the Court.
No. 7
ORIGINATING SUMMONS 0.7, r.2.
(Where Appearance not Required)
IN THE HIGH COURT OF BRUNEI DARUSSALAM
O.S. No. ..... of 20 .....
(Seal)
(In the matter of ...)
Between
....... Plaintiff
and
.......... Defendant
Let ....... of ...... attend before the Judge (or Registrar) in Chambers on ........ the ........ day of ......, 20 ......, at .... m.,on the hearing of an application by the plaintiff that ....
Dated the ........ day of ..., 20 ....
.... Registrar
Memorandum to be subscribed on the summons
This summons is taken out by ........ of ....... solicitor for the said plaintiff whose address is ... (or where the plaintiff sues in person). This summons is taken out by the said plaintiff who resides at ..... and is (state occupation) and (if the plaintiff does not reside within the jurisdiction) whose address for service is ...
Note — This summons may not be served more than 12 calendar months after the above date unless renewed by order of the Court.
If a defendant does not attend personally or by his counsel or solicitor at the time and place abovementioned such order will be made as the Court may think just and expedient.
No. 8
EX PARTE ORIGINATING SUMMONS 0.7, r.2.
IN THE HIGH COURT OF BRUNEI DARUSSALAM
O.S. No. ....... of 20 .....
(Seal)
Let all parties concerned attend before the Judge (or Registrar) in Chambers on .... the ...... day of .... , 20 ....... , at ..... m., on the hearing of an application by ....... that ......
Dated the ........ day of ..., 20 ....
.... Registrar
This summons is taken out by ....... of ...... solicitor for the applicant whose address is ....
No. 9
NOTICE OF ORIGINATING MOTION 0.8, r.3.
IN THE HIGH COURT OF BRUNEI DARUSSALAM
O.M. No. ..... of 20.....
(Seal)
In the matter of ........
and
In the matter of ........Take notice that the Court will be moved at the expiration of ........ days
from the service upon you of this notice (or on the ..... day of ...,
20 ...... , at the sitting of the Court) or so soon thereafter as counsel can be heard, by counsel on behalf of ... for an order that ........ (or for the
following relief, namely ........).
And that the costs of and incidental to this application may be paid by ........
(And further take notice that the grounds of this application are (state the ground)).
Dated the ........ day of ..., 20 ....
... Solicitor for the .......
.... of ......
solicitor for the above-named applicant ........ whose address is ......
(or ... whose address for service is ....)
To .... of .......
No. 10
NOTICE OF MOTION 0.8, r.3.
(Title as in action)
Take notice that (pursuant to the leave of .... given on the ....
day of ...., 20 ....) the Court will be moved on ....... the ... day of ......., 20 ......, at ........ m., or so soon thereafter as counsel can
be heard, by (Mr ..... of ...) counsel for the abovenamed plaintiff (or
defendant) that ....... and that the costs of the application be ...... Dated the ........ day of ..., 20....
...
To solicitor for the ........
Solicitor for the .......
No. 11
NOTICE OF WRIT OF SUMMONS TO BE SERVED OUT OF JURISDICTION 0.11, r.3.
(Title as in action)
To .......... Take notice that ..... of ........ has begun an action against you ..... in the High Court of Brunei Darussalam by writ of summons dated the ....... day of ......., 20 ....... , which writ is indorsed as follows
(copy the indorsements) and you are required within ........ days after receipt of this notice, inclusive of the day of receipt, to cause an appearance to be entered for you in the said Court to the said action, and in default of your so doing the said ..... may proceed therein and judgment may be given in your absence.
You may enter an appearance in person or by a solicitor either (1) by handing in the appropriate forms, duly completed, at the Registry of the High Court, or(2) by sending them by post to the Registrar, High Court at Bandar SeriBegawan.
If writ is indorsed with a statement of claim, add:
If you enter an appearance, then, unless a summons for judgment is served on you in the
meantime, you must also serve a defence on (the solicitor for) the plaintiff within ........
days after the last day of the time limited for entering an appearance,otherwise judgment may be entered against you without notice.
Dated the ........ day of ..., 20 ....
(Seal)
By Order of the Court,
.... Registrar
This notice was served by me at ....... on the defendant ........
on ........ the ........
Indorsed the .... day of ......., 20 .......
.... Process-server
No. 12
AFFIDAVIT FOR LEAVE TO SERVE WRIT OUT OF JURISDICTION 0.11, r.4.
(Title as in action)
I (name, address and description of deponent) do make oath (or affirm) and say as follows:
1. I reside at ... and am a .......
2. I verily believe that I have a good cause of action against the abovenamed intended defendant (state the grounds on which the application is founded and where the action arose).
3. The said intended defendant is at present residing (or carrying on business)
at .... in the State of ........
4. At least .... days will probably be necessary to effect service on the intended defendant and to enable him to enter an appearance in the Registry of the High Court.
5. I apply for leave to serve the same on the said intended defendant ....... at ..... or elsewhere as he may be found in the State of ....
Sworn (or affirmed) as in Form 78.
No. 13
ORDER FOR SERVICE OUT OF JURISDICTION 0.11, r.4(3).
(Title as in action)
Upon the application of ...... the intended plaintiff and upon reading the affidavit of ...... filed the .... day of ...., 20...,
and upon hearing .....
It is ordered that the intended plaintiff have leave to issue a notice of a writ of summons
(or originating summons) (or as may be) against the intended defendant and to serve the said notice of writ on him at (address at which intended defendant to be served) or elsewhere in
(name of country within which service to be effected).
And it is ordered that the time for entry of an appearance in the action by the intended
defendant be ....... days after service on him of the notice of writ.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 14
REQUEST FOR SERVICE OF DOCUMENT ABROAD 0.11, r.6.
(Title as in action)
I hereby request that the notice of the writ of summons (or as may be describing the document) in this action be sent through the proper channel to (name of the country) for service on the (defendant) ....., at ..... or elsewhere in (name of country) and that it may be served ....
(i) through the government of ....... (where theGovernment is willing to effect service)
(ii) through the judicial authority of .....
(iii) through a Brunei Darussalam (or British) Consular authority at .....
(delete which methods not desired)
I hereby undertake to be responsible personally for all expenses incurred by the Minister in respect of the service requested and, on receiving due notification of the amount of those expenses, to pay that amount to the office of the said Minister and to produce a receipt for the payment to the proper officer in the Registry.
Dated the ........ day of ..., 20 ....
...
Solicitor for the .......
No. 15
MEMORANDUM OF APPEARANCE 0.12, r.2.
(Title as in action)
To the Registrar,
Enter appearance for (name of defendant) in this action.
Dated the ........ day of ..., 20 ....
....... Solicitor for the defendant
The place of business of (name of solicitor for the defendant) is .....
.........His address for service is ...........
......
(or defendant in person) The address of (name of defendant) is .........
His address for service is ...........The said defendant (requires or does not require) a statement of claim to be filed and delivered.
No. 16
MEMORANDUM OF CONDITIONAL APPEARANCE 0.12, r.6.
(Title as in action)
Enter conditional appearance (or appearance under protest for (name of defendant) without prejudice to an application to set aside the writ (or service of the writ).
Dated the ........ day of ..., 20 ....
........ Solicitor for the defendant
The place of business of (name of solicitor for the defendant) is .....
.........His address for service is ...........
.......
(or defendant in person) The address of (name of defendant) is .........His address for service is ...........The said defendant (requires or does not require) a statement of claim to be filed and delivered.
NOTE — Every conditional appearance and duplicate is sealed on entry with the following stipulation:
“This appearance is to stand as unconditional unless the defendant applies within ........ days to set aside the writ, or service thereof,and obtains an order to that effect”.
.... Registrar
No. 17
CERTIFICATE OF NON-APPEARANCE 0.13, r.7.
(Title as in action)
An affidavit of service of (describe document) on the (name of person served) at ... on ....... the .... day of ....., 20.....,
having been filed this .... day of ......., 20 ......
IT IS HEREBY CERTIFIED that no appearance has been entered for the said (name of person served).
Dated the ........ day of ..., 20 ....
.... Registrar
No. 18
AFFIDAVIT ON APPLICATION UNDER ORDER 14
RULE 2, BY OR ON BEHALF OF PLAINTIFF 0.14, r.2.
(Title as in action)
I .... of ..... (the above-named plaintiff, or solicitor for the above-named plaintiff, or clerk to the plaintiff’s solicitor, or clerk to the plaintiff, (or as may be) do made oath (or affirm) and say as follows:
1. The defendant .... is, and was at the commencement of this action, justly and truly indebted to (me, or the above-named plaintiff) in the sum of $ .... for the ........ The particulars of the said claim appear by the indorsement on the writ of summons in this action.
2. It is within my own knowledge that the said debt was incurred and is still due and owing as aforesaid.
or
(2) I am informed by (state source of information) and/or I verily believe(state grounds of belief) that the said debt was incurred and is still due and owing as aforesaid).
3. I verily believe that there is no defence to this action.
4. I am duly authorised by the plaintiff to make this affidavit(delete if sworn by plaintiff).
Sworn (or affirmed) as in Form 78.
No. 19
NOTICE TO BE INDORSED ON COPY OF COUNTER-CLAIM 0.15, r.3.
To .......... Take notice that, if you intend to defend this counter-claim, an appearance must be entered to the counter-claim on your behalf within 8 days (or if the counter-claim is to be served out of the jurisdiction insert here the time fixed by the order giving leave to serve the counter- claim out of the jurisdiction) after the service of this defence and counter-claim on you, inclusive of the day of service, otherwise judgment may be given against you without further notice.
Directions for entering appearance
The person served with this counter-claim may enter an appearance in person or by a solicitor either (1) by handing in the appropriate forms, duly completed, at the Registry of the High Court, or (2) by sending them by post to the Registrar, High Court at Bandar Seri Begawan.
No. 20
MEMORANDUM OF APPEARANCE OF COUNTER-CLAIM 0.15, r.3.
(As in Form 15 but substituting for the title of the action the following):
Between
.......Plaintiff
and
..........Defendant
(by original action) And between
the said
.......Plaintiff
and the said
..........Defendant
(by counter-claim)
(and substituting for the request to enter appearance the following):
Enter an appearance for (name of defendant to counter-claim wishing to appear) to the counter-claim of the above-named defendant in the action.
No. 21
MEMORANDUM OF APPEARANCE OF PERSON ADDED AS DEFENDANT 0.15, r.8.
(As in Form 15 but substituting for the title of the action the following):
Between
.......Plaintiff
and
..........Defendant
And between
.......Plaintiff
..........Defendant
(By original writ and by order)
(and substituting for the request to enter appearance the following):
Enter an appearance for (name of added defendant) who has been served with an order dated the ... day of ... , 20 ........, making him a defendant to the action.
No. 22
THIRD PARTY NOTICE CLAIMING CONTRIBUTION OR INDEMNITY OR OTHER RELIEF OR REMEDY 0.16, r.1.
IN THE HIGH COURT OF BRUNEI DARUSSALAM
Suit No. ........ of 20 ......
Between
......Plaintiff,
and
.........Defendant, and
.......Third Party,
THIRD PARTY NOTICE
(Issued pursuant to the order of (name of Judge) dated the ...
day of ....., 20 ... )
To ....... of .... Take notice that this action has been brought by the plaintiff against the defendant. In it the plaintiff claims against the defendant (state the nature of the plaintiff’s claim) as appears from the writ of summons (or originating summons) a copy whereof is served herewith (together with a copy of the statement of claim).
The defendant claims against you (state the nature of the claim against the third party as for instance to be indemnified against the plaintiff’s claim and the costs of this action or contribution to the extent of (one half) of the plaintiff’s claim or the following relief or remedy namely ........ on the grounds that (state the grounds of the claim). And take notice that if you wish to dispute the plaintiff's claim against the defendant, or the defendant’s claim against you, an appearance must be entered on your behalf within 8 days (or if the notice is to be served out of the jurisdiction insert the time for appearance fixed by the order giving leave and the defendant’s against you and your liability to (idemnity the defendant to issue the notice and serve it out of the jurisdiction) after the service of this notice on you, inclusive of the day of service, otherwise you will be deemed to admit the plaintiff’s claim against the defendant or to contribute to the extent claimed or to ....... (stating the relief or remedy sought) and will be bound by any judgment or decision given in the action, and the judgment may be enforced against you in accordance with Order 16 of the Rules of the Supreme Court.
Dated the ........ day of ..., 20 ....
..... Solicitor for the defendant
Directions for entering appearance
The person served with this notice may enter an appearance in person or by a solicitor either
(1) by handing in the appropriate forms, duly completed, at the Registry of the High Court or
(2) by sending them by post to the Registrar, High Court at Bandar SeriBegawan.
No. 23
THIRD PARTY NOTICE WHERE QUESTION OR ISSUE TO BE DETERMINED 0.16, r.1.
(Title etc. as in Form 22 down to end of first paragraph)
The defendant required that the following question or issue, viz., (state the question or issue required to be determined) should be determined not only as between the plaintiff and the defendant but also as between either or both of them and yourself.
And take notice that if you wish to be heard on the said question or issue or to dispute the defendant’s liability to the plaintiff or your liability to the defendant, an appearance must be entered on your behalf within 8 days (or if the notice is to be served out of the jurisdiction, insert the time for appearance fixed by the order giving leave to issue the notice and serve it out of jurisdiction) after the service of this notice on you, inclusive of the day of service, otherwise you will, be bound by any judgment or decision given in the action in so far as it is relevant to the said question or issue, and the judgment may be enforced against you in accordance with Order 16 of the Rules of the Supreme Court.
Dated the ........ day of ..., 20 ....
..... Solicitor for the defendant
Directions for entering appearance.
(As in Form 22).
No. 24
SUMMONS FOR LEAVE TO ISSUE A THIRD PARTY NOTICE 0.16, r.2.
(Title as in action)
Let all parties concerned attend before the Judge (or Registrar) in Chambers on ...., the ....... day of ..., 20 ......., at ...... m., for leave to issue a third-party notice a copy of which is attached herewith.
Dated the ........ day of ..., 20 .... Entered No. ....... of 20 ........
Clerk
(Seal)
.... Registrar This summons is taken out by the defendant (or solicitor for the defendant)
of ...........
To ..........
No. 25
MEMORANDUM OF APPEARANCE OF THIRD PARTY 0.16, r.4.
(As in Form 15 but substituting for the title of the action, the title on the third party notice and substituting for the request to enter appearance the following:)
Enter an appearance for (name of third party) to the third party notice issued in this action on ..... , 20 ...,by the defendant and served on the said ...
on ......, 20 .......
No. 26
SUMMONS FOR THIRD PARTY DIRECTIONS 0.16, r.4.
(Title as in Form 22)
Let all parties concerned attend before the Judge (or Registrar) in Chambers on the ..... day of ........, 20 ........, at ... m., on the
hearing of an application on the part of ........ for an order for third party directions, as follows:
that the defendant serve a statement of his claim on the said third party within ........ days from this date, who shall plead thereto within .... days.
(State any other directions that may be required).
And that the said third party be at liberty to appear at the trial of this action, and take such part as the Judge shall direct, and be bound by the result of the trial.
And that the question of the liability of the said third party to indemnify the defendant be tried at the trial of this action, but subsequent thereto.
And that the costs of this application be costs in the cause and in the third party proceedings.
Dated the ........ day of ..., 20 ....
Entered No. ....... of 20 ........ Clerk
(Seal)
.... Registrar
This summons is taken out by the defendant (or solicitor for the defendant or as may be) of .....
To ..........
No. 27
ORDER FOR THIRD PARTY DIRECTIONS 0.16, r.4
(Title as in Form 22)
Upon the application of ........ and upon hearing ...... for the plaintiff and .... for the defendant and ..... for the third party .......
It is ordered that the defendant serve a statement of his claim on the said third party within
.... days from this date, who will plead thereto within ...... days.
(State any other directions that had been ordered).
And that the said third party be at liberty to appear at the trial of this action, and taken such part as the Judge shall direct, and be bound by the result of the trial. And that the question of the liability of the said third party to indemnify the defendant be tried at the trial of this action, but subsequent thereto.
And that the costs of this application be ....... Dated the ........ day of ..., 20....
(Seal)
.... Registrar
No. 28
NOTICE BY CLAIMANT OF PROPERTY TAKEN IN EXECUTION 0.17, r.2.
(Title as in action)
And
....... Claimant
Take notice that I ........... of ...... claim the following property that has been taken in execution in this action at (state address) on the ...... day of ..., 20 ......
(State the money, goods or other movable property claimed and the grounds for the claim).
Dated the ........ day of ..., 20 ....
.... Claimant
My address for service is ...........
.........To the Sheriff and the execution creditor (or solicitor for execution creditor).
No. 29
NOTICE BY SHERIFF OF PROPERTY TAKEN IN EXECUTION 0,17, r.2.
(Title as in Form 28)
Take notice that .... of ..... has claimed the following
property (specify the property claimed) ......
......... taken in execution by me under the writ of seizure and sale issued in this action.
If within 4 days after receiving this notice, you give notice to me that you admit the claim of the said ....... to the said property or request me to withdraw from possession in Form 30 you will not be liable for any costs incurred after the receipt by me of your notice.
Dated the ........ day of ..., 20 ....
To the execution creditor (or solicitor for execution creditor).
.... Sheriff
No. 30
NOTICE OF EXECUTION CREDITOR OF PROPERTY TAKEN IN EXECUTION 0.17, r.2.
(Title as in Form 28)
Take notice that I admit (or dispute) the claim of ..... to the property seized by you(or I request you to withdraw from possession) under the writ of seizure and sale issued in this action.
Dated the ........ day of ..., 20 ....
....... Execution Creditor (or solicitor for execution creditor)
No. 31
APPLICATION FOR AN INTERPLEADER SUMMONS: BY SHERIFF 0.17, r.3.
(Title as in Form 28)
1. On the ... day of ........, 20 ........, .... gave me notice that he claimed the following property (specify the property claimed) taken by me in execution under (the writ of seizure and sale) issued in this action.
2. On the ... day of ......., 20 ..., I notified the execution creditor of the said claim. He does not admit the claim and has not requested me to withdraw from possession of the property claimed.
3. I value the property claimed at approximately $ ...... I claim no interest in the subject matter in dispute other than for commission fees and expenses of execution.
I do not in any manner collude with any of the parties herein.
I apply for an interpleader summons to be issued.
Dated the ........ day of ..., 20 ....
..... Sheriff
Interpleader Summons to issue returnable the ....... day of ........,
20 ...., at ... m.
Dated the ........ day of ..., 20 ....
.... Registrar
No. 32
APPLICATION TO INTERPLEAD BY A PERSON UNDER LIABILITY 0.17, r.3.
(In a pending action application as in Form 62, in any other case by an originating summons)
Affidavit in support
I, ... of .... (if in an action, the abovenamed defendant) do make oath (or affirm) and say as follows:
1. (If in an action). This action is brought to recover (state what) claimed by the plaintiff but I have received a claim adverse to that of the Plaintiff from ...... of
..... (or, if no action), I have received adverse claims from ....... of ....... to (state what) which is of the approximate value of $ .......I expect to be used on these claims by the said claimant.
2. I claim no interest in the subject matter in dispute (other than the sum of $ ...... for costs or charges) (or as the case may be). I do not in any manner collude with either (or any) of the said claimants.
3. I am ready and willing to bring into Court or to pay or dispose of the subject matter in dispute in such manner as the Court may direct.
Sworn (or affirmed) as in Form 78.
No. 33
INTERPLEADER SUMMONS 0.17, r.4.
(Title as in Form 28)
(a) To Execution Creditor.
Whereas the above claimant has made a claim to certain property taken in execution under process issued out of this Court at your instance:
You are hereby summoned to appear before the High Court, on ...... the .... day of ...., 20 ......., at ... m.,when the said claim will be adjudicated upon and such order made thereon as theCourt shall think just.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
Entered No. ....... of 20 ........ Clerk
To
The Execution Creditor (or Solicitor for Execution Creditor).
(b) To Claimant.
You are hereby summoned to appear before the High Court on ....... the ... day of ........, 20....., at ........ m., to support a claim made by you to ... certain property taken in execution under process issued out of this Court at the instance of the execution creditor and in default of your then establishing such claim the said property will be dealt with under the said process as property of the execution debtor.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
Entered No. ....... of 20 ........ Clerk
To
The Claimant (or Solicitor for Claimant).
(c) To a Plaintiff or a claimant in a pending action.
Whereas the defendant in this action has filed an affidavit (a copy of which is hereto annexed) stating that he has received a claim from ..... of .... to ........ (part of) the subject matter of this action:
You are hereby summoned to appear before the High Court on ....... the ........ day of ....., 20 ......., at ...... m., when theCourt will adjudicate upon the rights and claims of yourself, the defendant and the the .....
(In summons to claimant not a plaintiff in the action, add: A copy of the writ of summons and statement of claim in this claim in this action is hereto annexed).
Dated the ........ day of ..., 20 ....
(Seal)
Entered No. ....... of 20 ........ Clerk
.... Registrar
To
(State the name and address of the person to be summoned).
No. 34
JUDGMENT (OR ORDER) ON INTERPLEADER SUMMONS 0.17, r.11.
(Title and in Form 28)
(Recital)
Upon this Interpleader Summons (or Originating Summons) coming up for hearing before ... the ...... day of ..., 20........ and upon hearing the evidence adduced and what was alleged by the parties (or their counsel).
(Insert the appropriate Operative Part).
(Operative Parts)
(a) Under execution.
It is adjudged touching the claim of .... to (specify the property)
(or to the proceeds of sale (or value) of (specify the property) taken in execution under process issued out of this court at the instance of ....... execution creditor, that the said (specify the property) (or proceeds of sale) (or value) (or part of the said property) (or proceeds of sale (or value)) namely (specify same) is (or are) not the property of the claimant.
And it is ordered that the said ...... do pay to the said ...... the sum of $........ for costs (and the sum of $........ for extra expenses of execution and keeping possession occasioned by the claim). Insert directions as to disposal of any money in Court.
(b) In a pending action.
It is this day adjudged touching the claims of the plaintiff and the claimant to ...
(part of) the subject matter of this action that the claim of the plaintiff(or claimant) is valid and that the claimant (or plaintiff) has no claim thereto.
(And it is further adjudged that the plaintiff (or claimant) do recover against the defendant the sum of $ ... for debt and $ ....... for costs amounting together to the sum of $ .......).
(And it is ordered — here insert any order for delivery of the property)
And it is further adjudged that the plaintiff (or claimant) do recover the sum of
$ ....... from the claimant (or plaintiff) for costs ........ (add if any costs awarded to the defendant against the plaintiff or claimant:
And it is further adjudged that the defendant do recover the sum of $... for costs from the plaintiff (or claimant)).
(If the claimant fails to appear and an order is made barring his claim proceed as follows: And the claimant .... not appearing, it is declared that the said ... and all persons claiming under him be forever barred as against the plaintiff and all person claiming under him).
(c) In any other case.
It is this day adjudged (here set out the judgment determining the claim as between the applicant and any claimant who appears or, if all the claimants appear, the judgment determining the rights and claims of all parties and any order as to payment, or delivery of the property and costs).
(If any claimant fails to appear and an order is made barring his claim proceed as follows: And the claimant .... not appearing, it is declared that the said ... and all persons claiming under him be forever barred as against ..... the applicant and all persons claiming under him).
(Testimonium)
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 35
PARTICULARS SERVED PURSUANT TO REQUEST OR ORDER 0.18, r.12.
(Title as in action)
Further and better particulars of the statement of claim (or defence or as may be).
Served pursuant to request (or order) dated the ........ day of .....,
20 ....
(Here set out in numbered paragraphs the particulars requested (or ordered) and the answers to them).
Dated the ........ day of ..., 20 ....
... Solicitor for the .......
No. 36
NOTICE OF DISCONTINUANCE 0.21, r.2.
(Title as in action)
Take notice that the plaintiff wholly (or specify the part) discontinues this action (or the defendant wholly (or specify the part) withdraws the defence or discontinues his counter- claim) (against the defendant plaintiff).
Dated the ........ day of ..., 20 ....
... Solicitor for the .......
To the Registrar and the other parties to the action.
No. 37
NOTICE OF PAYMENT INTO COURT 0.22, r.1.
(Title as in action)
Take notice that —
The defendant .... has paid $ ....... into Court. The said $ ...... is in satisfaction of (the cause of action) (all the causes of action) in respect of which the plaintiff claims (and after taking into account and satisfying the above-named defendant’s cause of action for ...... in respect of which he counter-claims).
or
The said $ ....., is in satisfaction of the following causes of action in respect of which the plaintiff claim, namely, ...
.........
(and after taking into account as above).
or
Of the said $ ........, $ ...... is in satisfaction of the plaintiff’s cause(s) of action for .... (and after taking into account as above) and $........ is in satisfaction of the plaintiff's cause(s) of action for ..... (and after taking into account as above).
Dated the ........ day of ..., 20 ....
...
To the Registrar, the plaintiff and the other defendants.
Receipt:
Solicitor for the .......
Received the above sum of ..... dollars and cents ..... into the
Court for the above credit.
Dated the ........ day of ..., 20 ....
.... Registrar
No. 38
NOTICE OF ACCEPTANCE OF MONEY PAID INTO COURT 0.24, r.3.
(Title as in action)
Take notice that the plaintiff accepts the sum of $..... paid in by the defendant .... in satisfaction of the cause(s) of action in respect of which it was paid in and in respect of which the plaintiff claims (against that defendant) (and abandons the other causes of action in respect of which he claims in this action).
Dated the ........ day of ..., 20 ....
...
To the Registrar and the defendant.
Solicitor for the .......
No. 39
NOTICE REQUIRING AFFIDAVIT VERIFYING LIST OF DOCUMENTS 0.24, r.2.
(Title as in action)
Take notice that you the above-named plaintiff (or defendant) are required within 14 days after the service of this notice on you to make and file an affidavit verifying the list of documents you are required to make under Order24, rule 2(1).
Dated the ........ day of ..., 20 ....
... Solicitor for the .......
No. 40
LIST OF DOCUMENTS 0.24, r.5.
(Title as in action)
The following is a list of the documents relating to the matters in question in this action which are or have been in the possession, custody or power of the above-named plaintiff defendant) ....... and which is served in compliance with Order 24, rule 2 (or the order herein) dated the .... day of ......., 20 .......).
1. The plaintiff (or defendant) has in his possession, custody or power the documents relating to the matters in question in this action enumerated in Schedule 1 hereto.
2. The plaintiff (or defendant) objects to produce the documents enumerated in Part 2 of the said Schedule 1 on the ground that (stating the ground of objection).
3. The plaintiff (or defendant) has had, but has not now, in his possession, custody or power the documents relating to the matters in question in this action enumerated in Schedule 2 hereto.
4. Of the documents in the said Schedule 2, those numbered ...... in the schedule were last in the plaintiff’s (or defendant’s) possession, custody or power on (stating when) and the remainder on (stating when).
(State what has become of the said documents and in whose possession they now are).
5. Neither the plaintiff (or defendant), nor his solicitor nor any other person on his behalf, has now, or ever had, in his possession, custody or power any document of any description whatever relating to any matter in question in this section, other than the documents enumerated in Schedules 1 and 2 hereto.
Schedule 1
PART 1
(Enumerate in a convenient order the documents (or bundles of documents, if of the same nature, such as invoices) in the possession custody or power of the party in question which he does not object to produce, with a short description of each document or bundle sufficient to identify it).
PART 2
(Enumerate as aforesaid the documents in the possession, custody or power of the party in question which he objects to produce).
Schedule 2
(Enumerate as aforesaid the documents which have been, but at the date of service of the list are not, in the possession custody or power of the party in question).
Dated the ........ day of ..., 20 ....
Notice to inspect
Take notice that the documents in the above list, other than those listed inPart 2 of Schedule
1 (and Schedule 2), may be inspected at (the office of the solicitor of the above-named
(plaintiff) (defendant) (insert address) or as may be) on the ...... day
of ......., 20 ....., between the hours of ........ and ........
...
Solicitor for the .......
To the defendant (or plaintiff) and his solicitor.
No. 41
AFFIDAVIT VERIFYING LIST OF DOCUMENTS 0.24, r.5.
(Title as in action)
I, the above-named plaintiff (or defendant) ........ do make oath (or affirm) and say as follows:
1. The Statements made by me in paragraphs 1, 3 and 4 of the list of documents not produced and shown to me marked ....... are true.
2. The Statements of fact made by me in paragraph 2 of the said list are true.
3. The statements made by me in paragraph 5 of the said list are true to the best of my knowledge, information and belief.
This affidavit is filed on behalf of the plaintiff (or defendant). Sworn (or affirmed) as in Form 78.
No. 42
NOTICE TO INSPECT DOCUMENTS 0.24, r.9.
(Title as in action)
Take notice that you can inspect the document mentioned in your notice of the ...... day of ..., 20 ........(except the deed numbered .... in that notice) at my office on ....... day next the instant between the between the hours of ...... m.
Dated the ........ day of ..., 20 ....
...
Solicitor for the .......
No. 43
NOTICE TO PRODUCE DOCUMENTS REFERRED TO IN PLEADINGS OR AEFIDAVITS 0.24, r.10.
(Title as in action)
Take notice that the plaintiff (or defendant) requires you to produce for his inspection, the following documents referred to in your pleading (or affidavit) namely:
Describe documents required.
Dated the ........ day of ..., 20 ....
... Solicitor for the .......
To the solicitor for .........
No. 44
NOTICE WHERE DOCUMENTS MAY BE INSPECTED
(Title as in action)
Take notice that the documents mentioned in your notice of the ..... day of ....... (except the deed numbered in that notice) may be inspected at ... (insert place of inspection) on ..... the ... day of ...... between the hours of ....... and ..... m.
(Or, that the plaintiff (or defendant) objects to giving inspection of the documents mentioned in your notice of .... the ....... day of ...... ,
20 .... , on the ground that (state the ground).
Dated the ........ day of ..., 20 ....
...
Solicitor for the .......
No. 45
ORDER FOR PRODUCTION OF DOCUMENTS AND INSPECTION 0.24, r.11.
(Title as in action)
Upon the application of .... and upon reading the affidavit of ....
filed the .... day of ..., 20 ......, and upon hearing.
It is ordered that the ..... do, on reasonable notice, produce at (insert place of ...... inspection), situate at .... the following documents,namely .... and that the .... be at liberty to inspect and peruse the documents so produced, and to make notes of their contents, and be entitled to be supplied with copies thereof on payment of the proper charges. And it is ordered that in the meantime all further proceedings be stayed, and that the costs of this application be ...
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 46
SUMMONS FOR DIRECTIONS PURSUANT TO ORDER 25 0.25, r.1.
N.B. — Applicants to complete the text of any matter required and to strike out the number opposite any matter not required but not to strike out the text, which must be left for the Judge
(or Registrar).
(Title as in action)
Let all parties concerned attend before the Judge (or Registrar) on ....... the ... day of ...., 20 ......, at .... m., on the hearing of an application for directions in this action, that:
1. This action be consolidated with action(s) in Suit No. ..... of 20 ..... and Suit No. .... of 20 ....
2. This action be referred to the Registrar and that the costs of this application be costs in the cause.
3. The action be (or by consent) transferred to the Subordinate Court at ........ and that the costs of this application be in the discretion of the Subordinate Court.
4. Unless the plaintiff within ....... days gives security for the defendant’s costs in the sum of $ ....... to the satisfaction of the Registrar, the action be transferred to the Subordinate Court at ....... with stay meanwhile, and that the costs of this application be in the discretion of the Subordinate Court (and that if the security be so paid the directions be as follows:—)
5. The plaintiff have leave to amend the writ by .... and that the service of the writ and the defendant's appearance do stand, and that the costs incurred and thrown away by the amendment be the defendant’s in any event.
6. The plaintiff have leave to amend the statement of claim as shown in the document served herewith and to re-serve the amended statement of claim in ...... days, with leave to the defendant to re-serve an amended defence (if so advised) in ........ days thereafter, (and with leave to the plaintiff to re-serve an amended reply (if so advised) in ... days thereafter) and that the costs incurred thrown away by the amendments be the defendant’s in any event.
7. The defendant have leave to amend the defence as shown in (the document served with) the defendant’s notice under this summons and to re-serve the amended defence in
.... days (or with leave to the plaintiff to re-serve an amended reply (if so advised) in ...... days thereafter) and that the costs of and the costs thrown away as the result of the amendments be the plaintiff’s in any event.
8. The plaintiff serve on the defendant within ...... days the further and better particulars of the statement of claim specified in (the document served with) the defendant’s notice under this summons.
9. The defendant serve on the plaintiff within ...... days the further and better particulars of the defence specified in the document served herewith.
10. The plaintiff serve on the defendant within ...... days the further and better particulars of the reply specified in (the document served with) the defendant’s notice under this summons.
11. The plaintiff give security for the defendant’s costs to the satisfaction of the Registrar in the sum of ........ on the ground ...... and that in the meantime all further proceedings be stayed.
12. The plaintiff within .... days serve on the defendant a list of documents (and file an affidavit verifying such list) (limited to the documents relating to the —
(special damage claimed)
(plaintiff’s industrial injury, industrial disablement; or sickness benefit rights)
(period from ....... to ......)
(issues raised in paras. .... of the statement ...... of claim
and paras. ....... of the defence)
(issues of .......)).
13. The defendant within ....... days serve the plaintiff with a list of documents
(and file an affidavit verifying such list) (limited to documents relating to the —
(period from ...... to ......)
(issues raised in paras ..... of the statement ...... of claim and paras. ...... of the defence) (issues of ....... )).
14. There be inspection of documents within days of the service of the lists (filing of the affidavits).
15. The plaintiff have leave to serve on the defendant the interrogatories shown in the document served herewith, and that the defendant answer the interrogatories on affidavitwithin ........ days.
16. The defendant have leave to serve on the plaintiff the interrogatories shown in the document served with the defendant’s notice under this summons, and that the plaintiff answer the interrogatories on affidavit within ... days.
17. The plaintiff (or defendant) (retain and preserve pending the trial of the action) (upon ... days notice to give inspection of) (the subject matter of the action, to the defendant (or plaintiff) and to his legal advisers (and experts)).
18. The statements in ..... be admissible in evidence at the trial without calling as a witness the maker of the statements (and, if a copy of that document certified by ... to be a true copy is produced, without production of the original document).
19. An affidavit of ........ (in the form of the draft affidavit (served herewith) (with the defendant’s notice under this summons)) (to be served within .... days) be admissible in evidence at the trial.
20. Evidence of the following fact(s), namely .... be received at the trial by statement on oath of information and belief (by the production of the following documents or entries in books or copy documents or copy entries in books, namely .... ).
21. It be recorded that the parties ((plaintiff) (defendant)) refuses to admit for the purposes of this action that ...... the truth of the statements in the document served (herewith) with the defendant’s notice under this summons.
22. ......., a witness on behalf of the plaintiff (or defendant) may, upon ...... days’ notice, be examined before the Registrar (or a special examiner to be agreed upon by the parties or appointed by the Registrar) and that the said witness need not attend at the trial.
23. A medical report be agreed, if possible, and that, if not, the medical evidence be limited to ... witness for each party.
24. A report by engineers (surveyors) (expert ........) be agreed if possible, and that, if not, the expert evidence be limited to ..... witnesses for each party.
25. A plan of the locus in quo other than a sketch plan be receivable in evidence at the trial.
26. Photographs and a plan of the locus in quo be agreed, if possible.
27. By consent, (the right of appeal be excluded) (any appeal be limited to the Court of Appeal (any appeal be limited to questions of law only).
28. Trial. (Estimated length and number of witnesses) ...... To be set down within ...... days(and to be tried immediately after the action in Suit No. ........ of 20 ....... ).
29. The costs of this application be costs in the cause.
Dated the ........ day of ..., 20 ....
Entered No. ........ 20 ...... Clerk
(Seal)
To the defendant(s) and to his (their) solicitors.
.... Registrar
This summons is taken out by ... of ........, solicitors for the plaintiff.
No. 47
NOTICE UNDER SUMMONS FOR DIRECTIONS 0.25, r.7.
(Title as in action)
Take notice that the abovenamed defendant intends to apply at the hearing of the summons for directions herein for an order that (insert directions required— see Form 46).
Dated the ........ day of ..., 20 ....
Solicitors for .......
No. 48
SUMMONS FOR INTERROGATORIES 0.26, r.1.
(Title as in action)
Let all parties concerned attend before the Judge (or Registrar) in Chambers on ..... the ........ day of ........, 20 ... at ....... m., on the hearing o f an application by ..... for an order that the ... be at liberty to serve on be at liberty to serve on the ... interrogatories in writing and that the said ....... do within ........ days answer the questions in writing by affidavit.
Dated the ........ day of ..., 20 ....
(Seal)
Entered No. ........ 20 ...... Clerk
.... Registrar
This summons is taken out by ........ solicitor for ..........
To ..........
No. 49
INTERROGATORIES 0.26, r.1.
(Title as in action)
Interrogatories
......... on behalf of the abovenamed (plaintiff) or (defendant A.B. ) for the examination of the above- named (defendants A.B. and C.D. ) (defendants the X. Co. Ltd.) or (plaintiff) pursuant to the
order herein dated the ........ day of ..., 20 ........
(Here set out the interrogatories in the form of concise questions, each interrogatory to be set out in a separate paragraph and numbered consecutively) .
1. Did you?
2. Did you not?
3. (a) were you?
(b) If any, were you not?
(The defendant A.B. is required to answer all the interrogatories numbered ....).
(The defendant C.D. is required to answer interrogatories numbered ........).
( E.P. , a director (or as may be) of the defendants, the X. Co., Ltd., is required to answer
the interrogatories numbered ......).
Served the ... day of ...., 20......, by ... of ....... solicitor for the(plaintiff) (defendant) ......
To the above-named ((defendant A.B. and C.D. ) (plaintiff) and(their) (his) solicitor).
No. 50
ORDER FOR INTERROGATORIES 0.26, r.1.
(Title as in action)
Upon the application of ....... and upon reading the affidavit of ........... filed the .... day of ......, 20 ..., and upon hearing .......
It is ordered that the ... be at liberty to serve on the ... interrogatories in writing as initialled by the Judge and that the said ...... do answer the interrogatories within ..... days and that costs of this application
be ...
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 51
ANSWER TO INTERROGATORIES 0.26, r.1.
(Title as in action)
The Answer
......... of the (defendants) or (abovenamed defendant A.B. ) or (plaintiff) to the interrogatories for
(their) or (his) examination by the abovenamed (plaintiff) (defendants) pursuant to the order herein dated the .... day of ..., 20 ...
In answer to the said interrogatories (we, the said A.B. and C.D. severally) or (I, the abovenamed A.B. or plaintiff), do make oath (or affirm) and say as follows:
1. To the 1st interrogatory, namely (state in full the interrogatory),that (stating the answer).
2. To the 2nd interrogatory, namely (state in full the interrogatory),that (stating the answer).
3. To the 3rd interrogatory, namely (state in full the interrogatory),that I object to answer it on the ground that (stating the ground of objection).
Sworn (or affirmed) as in Form 78.
This affidavit is filed on behalf of the (defendants) (plaintiff).
No. 52
NOTICE TO ADMIT FACTS 0.27, r.2.
(Title as in action)
Take notice that the plaintiff (or defendant) in this action requires the defendant (or plaintiff) to admit, for the purposes of this action only, the several facts respectively hereunder specified; and the defendant (or plaintiff) is hereby required, within 14 days from the service of this notice, to admit the said several facts, saving all just exceptions to the admissibility of such facts as evidence in this cause.
Dated the ........ day of ..., 20 ....
...
Solicitor for the ....... To the defendant (or plaintiff) ...... and his solicitor. The facts, the admission of which is required, are:
(set out admissions required, e.g.)
1. That A.B. died on the ........, 20........
2. That he died intestate.
3. That C.D. was his only lawful son.
4. That E.F. died on the ......., 20...
5. That E.F. never was married.
No. 53
ADMISSION OF FACTS, PURSUANT TO NOTICE 0.27, r.2.
(Title as in action)
The defendant (or plaintiff) in this action, for the purposes of this action only, hereby admits the several facts respectively hereunder specified, subject to the qualifications or limitation, if any, hereunder specified, saving all just exceptions to the admissibility of such facts, or any to them, as evidence in this action:
Provided that this admission is made for the purposes of this action only,and is not an admission to be used against the defendant (or plaintiff) on any other occasion, or by anyone other than the plaintiff (of defendant, or party requiring the admission).
... Solicitor for the .......
To the plaintiff (or defendant) ...... and his solicitor.
(example)
Facts admitted
Qualification or Limitations if any, subject to which they are admitted
1. That A.B. died on the ...., 20 ....... 1. —
2. That he died intestate. 2. —
3. That C.D. was his lawful son. 3. But not that he was only lawful son.
4. That E.F. died ..... 4. But not that he died on the ...., 20 ........
5. That E.F. never was married. 5. —
No. 54
NOTICE TO ADMIT DOCUMENTS 0.27, r.5.
(Title as in action)
Take notice that the plaintiff (or defendant) in this action proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant (or plaintiff), his solicitor or agent at .... on the .... day of ........, 20 ........, between the hours of ...... and ...., and the defendant (or plaintiff) is hereby within 7 days to admit that such of the said documents as are specified to be originals were respectively written, signed or executed, as they purport respectively to have been; that such as are specified as copies are true copies; and such documents as are stated to have been served, sent or delivered were so served sent or delivered respectively; saving all just exceptions to the admissibility of all such documents as evidence in this action.
And further take notice that if you do not within the afore-mentioned 7 days give notice that you do not admit the said documents (or any of them) and that you require the same to be proved at the trial you shall be deemed to have admitted the said document (or documents) unless the Court shall otherwise order.
Dated the ........ day of ..., 20 ....
... Solicitor for the .......
(Here describe the documents, the manner of doing which may be as follows):
ORIGINALS
| Description of Documents | Date |
| 1. ........... | .......... |
| 2. ........... | .......... |
| 3. ........... | .......... |
| 4. ........... | .......... |
| 5. ........... | .......... |
COPIES
| Description of Documents | Date | Original or Duplicate served sent, or delivered, when, how and by whom |
| 1. ........... | .......... | .......... |
| 2. ........... | .......... | .......... |
| 3. ........... | .......... | .......... |
No. 55
NOTICE OF NON-ADMISSION OF DOCUMENTS 0.27, r.5.
(Title as in action)
Take notice that I do not admit Numbers 1, 2 and 5 of the documents (as the case may be) in the Notice to Admit Documents saving all just exceptions to the same as evidence.
Dated the ........ day of ..., 20 ....
... Solicitor for the .......
To the plaintiff (or defendant) and his solicitor.
No. 56
NOTICE TO PRODUCE 0.27, r.5.
(Title as in action)
Take notice that you are hereby required to produce and show to the Court on the trial of this ... all books, papers, letters, copies of letters, and other writings and documents in your custody, possession, or power, containing any entry, memorandum, or minute relating to the matters in question in this and particularly.
Dated the ........ day of ..., 20 ....
...
Solicitor for the .......
To the plaintiff (or defendant) and his solicitor.
No. 57
NOTICE OF APPOINTMENT TO HEAR ORIGINATING SUMMONS 0.28, r.2.
(Title as in summons)
To ........ of ...
Take notice that the originating summons issued herein on the .......
day of ........, 20 ...., will be heard by theJudge on the ... day of ...., 20 ...., at ...... m. You may attend in person or by your counsel. If you fail to attend, such order will be made as the Court may think just and expedient.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 58
ORDER FOR INTERIM INJUNCTION 0.29, r.1.
(Title as in action)
Upon the application of ....... and upon reading the affidavit of ......... filed the ..... day of ..., 20......, and upon hearing ......., and the plaintiff by his said ........ undertaking to abide by any order the Court or a Judge may make as to damages in case the Court or aJudge should hereafter be of opinion that the defendant .... shall have sustained any by reason of this order which the plaintiff ought to pay. It is ordered and directed that the defendant(s)
(a) ....... by himself (themselves) his(their) agents or servants or otherwise be restrained, and an Injunction is hereby granted restraining him (them) from ...
until after the hearing of a summons returnable on the .... day of ... next or until after the trial of this action) or until further order.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
(a) Where the injunction is against a limited company or a corporate body, the Form should read:
“that the defendants (insert name of company or corporate body) by their agents or servants or otherwise be restrained etc.”.
No. 59
RECEIVER’S SECURITY BY UNDERTAKING 0.30, r.2.
(Title as in action)
I ...., of the ... receiver(and manager) appointed by order dated ... (or proposed to be appointed) in this action hereby undertake with the Court to duly account for all moneys and property received by me as such receiver (or manager) or for which I may be held liable and to pay the balances from time to time found due from me and to deliver any property received by me as such receiver (or manager) at such times and in such manner in all respects as the Court or a Judge shall direct.
And we ...... hereby jointly and severally (in the case of a Guarantee or other Company strike out (“jointly and severally”) undertake with the Court to be answerable
for any default by the said ..... as such receiver (or manager) and upon such default to pay to any person or persons or otherwise as the Court or a Judge shall direct any
sum or sums not exceeding in the whole $ ........ that may from time to time be certified by the Registrar to be due from the said receiver and we submit to the jurisdiction of the Court in this action to determine any claim made under this undertaking.
Dated the ........ day of ..., 20 ....
(Signatures of Receiver and his surety or sureties. In the case of a surety being a guarantee or other company, it must be sealed or otherwise duly executed).
No. 60
AFFIDAVIT VERIFYING RECEIVER’S ACCOUNT 0.30, r.4.
(Title as in action)
I, ......., of ..., the receiver appointed in this cause, do make oath (or affirm) and say as follows:
l. The document now shown to me marked A is, as it purports to be, a full and true
account of .... for the period therein specified.
2. ..... and ........, my sureties named in the guarantee (or undertaking) dated ... 20..., are both alive and neither of them has become bankrupt or insolvent.
(or
2. The ... Co. Ltd., my surety named in the guarantee (or undertaking dated ... 20 ......, is still carrying on business and no petition or other proceeding for its winding-up is pending).
Sworn (or affirmed) as in Form 78.
No. 61
CERTIFICATE OF RESULTS OF SALE
(Title as in action)
I, ......., of ..... auctioner, the person appointed to sell the estate comprised in the particulars hereinafter referred to, hereby certify as follows:
1. I did at the time and place, in the lots, and subject to the conditions specified in the said particulars and conditions of sale hereto annexed and marked A, put up for sale by auction the estate described in the said particulars.
The result of the sale is truly set forth in the bidding paper hereto annexed and marked B.
2. I have received the sums set forth in the fourth column of the schedule hereto as deposits from the respective purchasers whose names are set forth in the second column of the said schedule opposite the said sums in respect of their purchase-money leaving the sums set forth in the fifth column of the said schedule due in respect thereof.
SCHEDULE
(above referred to)
| No. of Lot | Name of Purchaser | Amount of Purchase-money | Amount of Deposit received | Amount remaining due |
...... Auctioneer
Date ........
(Note — This form can be adapted to meet the requirements of 0.31, r.3(1) (b) , when Certificate has to be given by a Solicitor).
No. 62
SUMMONS IN CHAMBERS 0.32, r.1.
(Title as in action)
Let all parties concerned attend before the Judge (or Registrar) in Chambers on ...., the ... day of ...., 20 ......., at ... m., on the hearing of an application on the part of (state nature of the application).
The grounds of the application are (state the grounds).
Dated the ........ day of ..., 20 ....
Entered No. ........ of 20 ........ Clerk
(Seal)
.... Registrar
This summons is taken out by the plaintiff (or as may be) of (state address).
To the defendant (or as may be).
No. 63
REQUEST FOR SETTING DOWN ACTION FOR TRIAL 0.34, r.3.
(Title as in action)
The Registrar,
We hereby request that the plaintiff (or defendant) be at liberty to set down this action for trial.
The requisite documents pursuant to Order 34, rule 3, are attached herewith.
The duration of trial estimated by the plaintiff is ........ and by the defendant
is ......
Dated the ........ day of ..., 20 ....
...
Solicitor for the .......
No. 64
NOTIFICATION OF SETTING DOWN ACTION 0.34, r.5.
(Title as in action)
Take notice that we have this day set down the above action for trial.
Dated the ........ day of ..., 20 ....
...
To the other parties to the action.
No. 65
Solicitor for the .......
CERTIFICATE OF OFFICER AFTER TRIAL 0.35, r.7.
(Title as in action)
I certify that this action was heard before ....
... on the .... day of ......., 20.......,
(and on the ..... day of ......., 20 ...) and occupied the time of the Court as follows:
On the ........ day of ........ , 20......., from .... to .... The total time occupied was .... hours ........ minutes.
The Judge directed that (state precisely the terms of the judgment or order or directions given).
Dated the ........ day of ..., 20 ....
.... Clerk of the Court
No. 66
LIST OF EXHIBITS 0.35, r.8.
(Title as in action)
Heard on ..... day of ..., 20 ..., before .........
| Number of Exhibit | Descriptions of Exhibit | Party who put in Exhibit | Witness who proved Exhibit | Notes |
Dated the ........ day of ..., 20 ....
.... Clerk of the Court
No. 67
WRIT OF SUBPOENA AD TESTIFICANDUM 0.38, r.14.
(Title as in action)
THE CHIEF JUSTICE OF BRUNEI DARUSSALAM, IN THE NAME OF HIS MAJESTY THE SULTANAND YANG DI-PERTUAN
To .....
We command you to attend before ..... at ..., on ....... the ........ day of ......., 20 ........, at ..... m.,
and so from day to day until the end of the above proceedings, to give evidence on behalf of the .... in the said proceedings.
Dated the ........ day of ..., 20 ....
Entered No. ....... of 20 ......Clerk
(Seal)
.... Registrar
No. 68
WRIT OF SUBPOENA DUCES TECUM 0.38, r.14.
(Title as in action)
(As in Form 67) We command you to attend either in person or by an agent at ........ on ..... the day of ...., 20 ......, at ....... m., and so from day to day until the end of the above proceedings to produce the following documents: on behalf of the ...... in the said proceedings.
Dated the ........ day of ..., 20 .... Entered No. ........ of 20 ....
Clerk
(Seal)
.... Registrar
No. 69
WRIT OF SUBPOENA AD TESTIFICANDUM
AND DUCES TECUM 0.38, r.14.
(Title as in action)
(As in Form 67) We command you to attend before ........ at ...... on ........ the ........ day of ...... 20 ...., at .... m., and so from day to day until the end of the above proceedings to give evidence and produce the following documents:
on behalf of the ...... in the said proceedings.
Dated the ........ day of ..., 20 ....
Entered No. .... of 20 ........ Clerk
(Seal)
.... Registrar
No. 70
PRAECIPE FOR SUBPOENA 0.38, r.14.
(Title as in action)
Seal writ of subpoena ....., on behalf of the ........ directed to ........ returnable on ....... day of ......, 20 ........ Witness’s name in full .........His (Her) residence or place of business ......His (Her) occupation .......If documents or books are required to be produced here specify them.
If witness is not required to give evidence but only to produce documents, so state
.........
Dated the ........ day of ..., 20 ....
...
Solicitor for the .......
No. 71
AFFIDAVIT FOR AN ORDER FOR THE PRODUCTION OF A PRISON IN PRISON 0.38, r.21.
(Title as in action)
I ....... of .... do make oath (or affirm)
and say:
1. That the above action is fixed for hearing on ...... the .... day of ........, 20 ....., and that .... now a prisoner confined in the ..... prison, will be a material witness for me at the hearing
(or is a party to the action).
2. That I am advised and verily believe that I cannot safely proceed to the hearing of
his action without the evidence of the said ........ (or my evidence).
3. I hereby apply for an order under Prisons Act that the said ...... may be brought before the Court.
4. I hereby undertake to pay the costs of conveyance of the said .... in safe custody to and from the Court and of maintenance of him and the officers in charge of him while attending theCourt.
Sworn (or affirmed) as in Form 78.
No. 72
ORDER TO PRODUCE PERSON IN PRISON 0.38, r.21.
(Title as in action)
To the Officer in charge of the .........You are hereby required upon tender made to you of a reasonable sum for the conveyance and maintenance of a proper officer and of .... now a prisoner in the
..... in going to, remaining at and the returning from the High Court at ..., to bring the said .... on the ........ day of ....., 20 ........, at ........ m., to give testimony on behalf of ...... and after the said ....... shall have given his testimony before the Court or the Court shall have dispensed with his further attendance you are required to cause him to be conveyed under safe ........ and sure conduct back to the said ....
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 73
ORDER FOR EXAMINATION BEFORE TRIAL 0.39, r.1.
(Title as in action)
Upon the application of ........ and upon reading the affidavit of ...... filed the ..... day of ......., and upon hearing ........ and that the Court is desirous of obtaining the testimony of (name of person).
It is ordered that .... do attend before the the (or Registrar) in Chambers on ..., the day of ..., 20 ......., at ... m., or such other day and time as the Judge (or Registrar) may appoint and do there submit to be examined upon oath or affirmation touching the testimony so required as aforesaid and do then and there produce (description of documents,if any, required to be produced).
And it is further ordered that the Judge (or Registrar) do take down in writing the evidence of the said witness according to the practice of the Court pertaining to the examination and cross-examination of witnesses (or as may be otherwise directed) and do cause the witness to sign his deposition in his, theJudge’s (or the Registrar’s) presence; and do sign the deposition taken in pursuance of this order and when so completed, do transmit the same to the Court.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 74
ORDER FOR ISSUE OF LETTER OF REQUEST TO JUDICAL AUTHORITY OUT OF JURISDICTION 0.39, r.2.
(Title as in action)
Upon the application (as in Form 73).
It is ordered that a letter of request do issue directed to the proper judicial authority for the examination of the following witnesses, namely:
........ of ........
........ of ....... And it is ordered that the deposition taken pursuant thereto when received be filed in the
registry of the High Court at ..... and that office copies thereof may be read and given in evidence on the trial of this action,saving all just exceptions, without any further proof of the absence of the said witness than the affidavit of the solicitor of the party using the same as to his belief.
And it is ordered that (the trial of this action be stayed until the said depositions have been filed and that) the costs of and incidental to the application for this order and the said letter of request and examination be(costs in the cause).
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 75
ORDER FOR APPOINTMENT OF EXAMINER TO TAKE EVIDENCE TO WITNESS OUT OF JURISDICTION 0.39, r.2.
(Title as in action)
Upon the application of ... and upon reading the affidavit of ...... filed the ...... day of ......, 20 ....., and upon hearing .......
It is ordered that the Brunei Darussalam (or British) Consul or his deputy at .....
(or ..... Esq.) be appointed as special examiner for the purpose of taking the examination, cross-examination and re-examination viva voce on oath or affirmation, of
........ witnesses on the part of ....... at ....... in
(name of country). The examiner shall be at liberty to invite the attendance of the witnesses and the production of documents, but shall not exercise any compulsory powers. Otherwise such execution shall be taken in accordance with the Brunei Darussalam procedure.
The ...... solicitors to give to the ... solicitors ...... days’ notice in writing of the date on which they propose t o send out this order to
........ for execution, and that ... days after the service of such notice the solicitors for the plaintiff and defendant respectively do exchange the names of their agents at ....... to whom notice relating to the examination of the said witnesses
may be sent. And that ....... days (exclusive of Sunday) before the examination of any witness hereunder notice of such examination shall be given by the agent of the party on whose behalf such witness is to be examined to the agent of the other party, unless such notice be dispensed with.And that the depositions when taken, together with any documents referred to therein, or certified copies of such documents or of extracts therefrom be sent by the examiner, under seal, to the Registrar of the HighCourt ...... (insert
(insert address on or before the ...... day of ...... next, or such further or other day as may be ordered there to be filed in the Registry. And that either party be at liberty to read and give such depositions in evidence on the trial of this action, saving all just exceptions. And that the trial of this action, be stayed until the filing of such depositions. And that the costs of and incidental to the application for this order and such examination be costs in the cause.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 76
LETTER OF REQUEST FOR EXAMINATION OF WITNESS OUT OF JURISDICTION 0.39, r.3.
To the Competent Judicial Authority of ...... in the ....... of ...... Whereas an action is now pending in the High Court of Brunei Darussalam at which
..... is plaintiff and ..... is defendant and in which the plaintiff claims .......
And whereas it has been represented to the said Court that it is necessary for the purposes of justice and for the due determination of the matters in dispute between the parties that the following persons should be examined as witnesses upon oath touching such matters, namely ....... of ..... and ...... of ...... and it appears that such witnesses are resident within your jurisdiction.
Now I, ... the Registrar of theHigh Court of Brunei Darussalam hereby request that for the reasons aforesaid and for the assistance of the said Court you will be pleased to summon the said witnesses (and such other witnesses as the agents to the said plaintiff and defendant shall humbly request you in writing so to summon) to attend at such time and place as you shall appoint before you, or such other person as according to your procedure is competent to take the examination of witnesses,and that you will cause such witnesses to be examined viva voce (or upon the interrogatories which accompany this letter of request) touching the said matters in question in the presence of the agents of the plaintiff and defendant or such of them as shall, on due-notice given, attend the examination.
And I further request that you will permit the agents of both the plaintiff and defendant or such of them as shall be present to examine (upon interrogatories and viva voce upon the subject-matter thereof or arising out of the answers thereto) such witnesses as may, after due notice in writing,be produced on their behalf and the other party to cross-examine the said witnesses (upon cross-interrogatories and viva voce ) and the party producing the witness for examination to re-examine him viva voce .
And I further request that you will be pleased to cause the evidence of the said witnesses
(or the answers of the said witnesses and all additional viva voce questions, whether on examination, cross-examination or re-examination) to be reduced into writing and all books, letters, papers and documents produced on such examination to be duly marked for identification, and that you will be further pleased to authenticate such examination by the seal of your tribunal or in such other way as is in accordance with your procedure and to return it together with (the interrogatories and cross-interrogatories and) a note of the charges and expenses payable in respect of the execution of this request through the Brunei Darussalam
(or British) Consul from whom the same was received (or the Minister forForeign Affairs)
for transmission to the High Court of Brunei Darussalam at Bandar SeriBegawan.
And I further request that you will cause me, or the agents of the parties if appointed, to be informed of the date and place where the examination is to take place.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 77
SOLICITOR’S UNDERTAKING AS TO EXPENSES 0.39, r.3.
(Title as in action)
I (We) hereby undertake to be responsible for all expenses incurred by the Minister for Foreign Affairs in respect of the letter of request issued herein on the ......, and on receiving due notification of the amount of such expenses undertake to pay the same as
directed by the Registrar of the High Court, at ...
The following have been appointed as agents for the parties in connection with the execution of the above letter of request.
Plaintiff’s Agent:
..........
of
Defendant’s Agent:
..........
of
Dated the ........ day of ..., 20 ....
...
Solicitor for the .......
No. 78
FORMS OF JURAT 0.41, r.1.
( Title as in action)
(a) To an affidavit by one deponent .... Sworn (on affirmed) on the .... day of ......., 20........, at ...... (Through the
interpretation of ....... ).
Before me
........ Commissioner for Oaths (b) To an affidavit by two or more deponents ... Sworn (or affirmed by the deponents ... and ..... (or by both or all) of the above-nmend
deponents) on the ... day of ...... , 20 ..., at ....
(Through the interpretation of ......).
Before me
........ Commissioner for Oaths
(c) To an affidavit by an illiterate or blind person ........ Sowrn (or affirmed) on the ....... day of ........,20 ...., at .... I, having truly, distinctly and audibly read over the contents of the above affidavit (add if exhibits are referred to in the affidavit “and explained the nature and effect of the exhibits therein referred to”) to the said deponent who seemed perfectly to understand the same and who made his mark thereto in my presence(Through the interpretation of .....).
Before me
........ Commissioner for Oaths
(d) To an affidavit by a person who does not understand English.Sworn (or affirmed) on the ........ day of ...., 20 ......, at ......, thorough the interpretation of ..... (if the interpreter is not a Court Interpreter, add the following:
“the said ........ having been first sworn that he had truly, distinctly, and audibly translated the contents of his affidavit to the deponent ....... and that he would truly and faithfully interpret the oath (or affirmation) about to be administered unto him the said ...”).
Before me
........ Commissioner for Oaths
No. 79
JUDGMENTS 0.42, r.5.
(0.13, r.1; 0.19, r.2; 0.42, r.5).
(Title as in action)
(a) Default judgment in action for liquidated demand.
No appearance having been entered (or no defence having been served) by the defendant
herein. It is this day adjudged that defendant do pay the plaintiff $...... and
$ ... costs (or costs to be taxed).
(The above costs have been taxed and allowed at $........ as appears by the Registrar’s certificate dated the ....... day of ...., 20 ......). Dated the ........ day of ..., 20....
(Seal)
.... Registrar
(0.13, r.2; 0.19, r.3; 0.42, r.5).
(b) Default judgment in action for unliquidated damages.
No appearance having been entered (or no defence having been served) by the defendant herein. It is this day adjudged that the defendant do pay the plaintiff damages to be assessed.
The amount found due to the plaintiff under this judgment having been certified at
$ ..... as appears by the Registrar’s certificate filed the ........ day
of ......., 20 .......
It is adjudged that the defendant do pay the plaintiff $........ and costs to be taxed.
The above costs etc. (as in (a) above).
(Note — This form is a combined form of interlocutory and final judgment. The plaintiff may at his option enter interlocutory judgment by omitting the words below the line in the form and enter a separate final judgment in (f) below).
(0.13, r.3; 0.19, r.4; 0.42, r.5).
(c) Default judgment in action relating to detention of movable property.
No appearance having been entered (or no defence having been served) by the defendant herein.
It is this day adjudged that the defendant do deliver to the plaintiff the movable property described in the writ of summons (or statement of claim) as(description of movable property) or pay the plaintiff the value of the said property to be assessed (and also damages for their detention to be assessed).
or
It is this day adjudged that the defendant do pay the plaintiff the value of the movable property described in the writ of summons (or statement of claim) to be assessed (and also damages for their detention to be assessed).
The value of the said movable property having been assessed at $...... (and damages at $ ......) as appears by the Registrar’s certificate filed the .....
day of ........, 20 ....
It is adjudged that the defendant to pay the plaintiff $...... and costs to be taxed. The above costs etc. (as in (a) above).
(Note — See the note to (b) above).
(0.13, r.4; 0.19, r.5; 0.42, r.5).
(d) Default judgment in action for possession of immovable property.
No appearance having been entered (or to defence having been served) by the defendant herein. I t is this day adjudged that the defendant do give the plaintiff possession of the immovable property described in the writ of summons (or statement of claim) as ........
and pay the plaintiff $ .... costs (or costs to be taxed).
The above costs etc. (as in (a) above).
(0.13, r.4).
(e) Judgment in default in action for possession of immovable property, damages and cost.
No appearance having been entered (or no defence having been served) by the defendant herein. It is this day adjudged that the defendant do give the plaintiff possession of the immovable property described in the writ of summons (or statement of claim) as .....
And it is further adjudged that the defendant to pay the plaintiff (mesne profits) (damages)
to be assessed.
The amount found due to the plaintiff under this judgment having been certified at the sum of $ ...... as appears by theRegistrar’s finding filed the ........ day of ..., 20 .....
It is adjudged that the defendant do pay the plaintiff $....... and costs to be taxed.
The above costs etc. (as in (a) above).
(Note — See the note (b) above).
(0.42, r.5).
(f) Final judgment after assessment of damages etc.
The .... day of ......, 20 .... The plaintiff having on the ........ day of ......, 20 ....... obtained interlocutory judgment herein against the defendant for damages (or as may be) to be assessed, and the amount found due to the plaintiff having been certified at $.... as appears by the Registrar’s certificate filed the ....... day of ...,
20 ........
It is this day adjudged that the defendant do pay the plaintiff $.... and costs, to be taxed.
The above costs etc. (as in (a) above).
(0.14, r.3; 0.42, r.5).
(g) Judgment under Order 14.
The ... day of ......, 20 ....
The defendant having entered appearance herein and the Court having underOrder 14, rule 3 ordered that judgment as hereinafter provided be entered for the plaintiff against the defendant.
It is this day adjudged that the defendant do pay the plaintiff $........
and $ ... costs (or costs to be taxed).
or
pay the plaintiff damages to be assessed and costs to be taxed.
or
deliver to the plaintiff the movable property described in the writ of summons (or statement of claim) as ...... (or pay the plaintiff the value of the said movable property to be assessed) (and also damages for their detention to be assessed) and costs to be taxed.
or
Give the plaintiff possession of the immovable property described in the writ of summons (or
statement of claim) as ..... and cost to be taxed. The above costs etc. (as in (a) above).
(0.14, r.5; 0.42, r.5).
(h) Judgment for the Defendant under Order 14.
The ..... day of ........, 20 ....
The Court having under Order 14, rule 5 ordered that judgment be entered for the defendant against the plaintiff on the counter-claim for$ ........ and costs of the counter-claim.
“It is this day adjudged that plaintiff do pay the defendant $... and costs the counter-claim to be taxed”.
The above costs etc. (as in (a) above).
(0.42, r.5).
(i) Judgment after trial before Judge.
The ....... day of ..., 20 .......
This action having been tried before ...... on the .......
day of ......., 20 ....
It is adjudged that the defendant do pay the plaintiff $...... and his costs of action to be taxed (or that this action be dismissed and that the plaintiff do pay the defendant his costs to be taxed) (or as may be according to the Judge’s order).
(It is further adjudged that execution be stayed for .... days) (and if within that time the ... gives notice of appeal, execution be further stayed until the determination of the appeal or as may be according to theJudge’s direction).
The above costs etc. (as in (a) above).
(0.42, r.5).
(j) Judgment upon Motion for Judgment.
The ........ day of ..., 20 ........ (date of order of Court). This action having on the ........ day of ........, 20 ......, come in before the Court on motion for judgment on behalf of the (party moving the Court) and the Court after hearing counsel for the (plaintiff and defendant, or as may be) having
ordered that (recite direction for judgment).
It is this day adjudged that ........ do pay the $........ and costs to be taxed.
The above costs etc. (as in (a) above).
(0.35, r.1(2); 0.42, r.5).
(k) Judgment of Dismissal.
Dated and entered the .... day of ........, 20 ........
This action having on the ..... day of ........, 20 ....... been called on for hearing before ... and the plaintiff having failed to appear, and the defendant having thereupon become entitled under Order 35, rule 1(2) to judgment dismissing the action and the said .... having ordered that judgment be entered accordingly.
Therefore it is adjudged that this action do stand dismissed out of thisCourt with costs. And it is further adjudged that the plaintiff do pay the defendant his costs to be taxed. The above costs etc. (as in (a) above).
(0.42, r.5).
(l) Judgment in pursuance of Order.
Pursuant to the Order of ....... dated the ........ day of ......., 20 ......, whereby it was ordered ..... and default having been made.
It is this day adjudged that the defendant do pay the plaintiff $.... and costs, to be taxed.
The above costs etc. (as in (a) above).
(0.42, r.5).
(m) Judgment after trial before Registrar.
Dated and entered the ........ day of ....., 20 ........
This action by an order dated the .... day of ..., 20 ...., having been ordered to be tried before ......, Registrar of the High Court and the
said Registrar having tried the said action and having by his certificate dated the ... day of ........, 20......, directed that judgment as hereinafter provided be entered for the plaintiff (or defendant).
It is adjudged that (as in (i) above according to the Registrar’s certificate).
(0.33, r.5; 0.42, r.5).
(n) Judgment after decision of preliminary issue.
Dated and entered the .... day of ...... 20 .......
The issue (or question) arising in this cause (or matter) by the order dated the ....... day of ........, 20 ......, ordered to be tried
before .... having on the ....... day of ......., 20 ....,
been tried before the said ...... and the said ... having
found ...... and having ordered that judgment as hereinafter provided be
entered for the ... (or having dismissed the cause or matter).
It is adjudged that (the defendant do pay the plaintiff $..... and his costs of action to be taxed) (the plaintiff do pay the defendant his costs of defence to be taxed) (or as may be according to the order made).
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
(0.42, r.5).
(o) Judgment for liquidated sum against personal representative.
Dated and entered the .... day of ......, 20 .....
(Recital as in (a) or (f) to (n) according to the circumstances in which judgment was obtained).
It is adjudged that the defendant as executor (or administrator) of the above-named
...... deceased do pay the plaintiff $...... and costs, to be taxed, the said sum and costs to be levied of the real and personal estate within the meaning of theProbate and Administration Act of the deceased at the time of his death come to the hands of the defendant as such executor (or administrator) to be administered, if he has or shall hereafter have so much thereof in his hands to be administered, and if he has not so much thereof, in his hands to be administered, then, as to the costs aforesaid, to be levied of the movable property of the defendant authorised by law to be seized in execution (or as may be according to the order made).
The above costs etc. (as in (a) above).
(0.59, r.10(1)).
(p) Judgment for defendant’s costs on discontinuance.
The ...... day of ........,20 ......
The plaintiff having by a notice in writing dated the ........ day of ... ,
20 ......., discontinued this action (or withdrawn his claim in this action for ....)
and the defendant’s costs of the action (or of the claim withdrawn) having been taxed and allowed at $ ...... as appears by the Registrar’s certificate dated the ....... day of ..., 20 ........, and the plaintiff not having paid the sum within
4 days after taxation.
It is this day adjudged that the plaintiff do pay the defendant $....... the said taxed costs.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
(0.59, r.10(2) & (3)).
(q) Judgment for costs after acceptance of money paid into Court.
The .... day of .....,20 ....
The defendant having paid into Court in this action the sum of $...... in satisfaction of the plaintiff’s cause(s) of action (or in satisfaction of the plaintiff’s cause of
action for ....), and the plaintiff having by his notice dated the ... day of ..., 20 ....., accepted that sum in satisfaction of his cause(s) of action or in satisfaction of his cause of action for .... and abandoned his other cause(s), of action), and the plaintiff’s costs herein having been taxed and allowed at $ ..... as appears by theRegistrar’s certificate dated the ... day of ....., 20 ........, and the defendant not having paid the sum within 48 hours after taxation.
It is this day adjudged that the defendant do pay the plaintiff $....... the said taxed costs.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 80
ORDER FOR ACCOUNTS AND INQUIRIES 0.43, r.2.
(Title as in action)
Upon the application of ... the plaintiff (or the defendant) in this action and upon reading the affidavit of ..... filed the .....
day of ......., 20 ......, and upon hearing ...
It is ordered that the following accounts and inquiry be taken and make; that is to say,....
1. An account of the movable property not specifically bequeathed of ..., deceased, the testator in the pleadings named, come to the hands of etc.
2. An account of the testator’s debts, (or where deceased died more than 6 years before judgment. (An inquiry whether there is any debt of the deceased remaining unpaid)).
3. An account of the testator’s funeral expenses.
4. An account of the legacies and annuities (if any), given by the testator’s will.
5. An inquiry what parts (if any) of the testator’s said movable property are outstanding or undisposed of.
And it is ordered that the testator’s personal estate not specifically bequeathed be applied in payment of his debts and funeral expenses in a due course of administering, and then in payment of the legacies and annuities (if any) given by his will.
(if ordered)
And it is ordered that the following further inquiries and accounts be made and taken; that is to say,
6. An inquiry what immovable property the testator was seised of or entitled to at the time of his death.
7. An account of the rents and profits of the testator’s immovable property received by etc.
8. An inquiry what incumbrances (if any) affect the testator’s immovable property, or any and what parts thereof.
(If sale ordered)
9. An account of what is due to such of the incumbrancers as shall consent to the sale hereinafter directed in respect of their incumbrances.
10. An inquiry, what are the priorities of such last-mentioned incumbrances.
And it is ordered that the testator’s immovable property be sold with the approbation of the Judges etc., etc.
And it is ordered that the further consideration of this cause be adjourned,and any of the parties are to be at liberty to apply as they may be advised.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 81
NOTICE OF JUDGMENT OR ORDER 0.44, r.3.
(Title as in action)
Take notice that a judgment (or order) if this Court was given (or made) on the ...... day of ......, 20 ...., by which it was (state substance of judgment or order).
And also take notice that from the time of the service of this notice you (or the infant
...... or the patient as may be) will be bound by the said judgment (or order) to the same extent as you (or he) would have been if you (or he) had originally been made a party.
And also take notice that without entering an appearance you (or the said infant or patient) may within one month after the service of this notice apply to the Court to discharge, vary or add to the said judgment (or order) and that after entering an appearance at the Registry of the
High Court at ..... you (or the said infant or patient) may attend the proceedings under the said judgment (or order).
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 82
FORM OF ADVERTISEMENT FOR CREDITORS 0.44, r.10.
A.B. DECEASED, By judgment (or order) of the High Court dated .....,
20 ......., and made in an action in the matter of the estate of A.B. deceased, S. against P
..., 20 ...., B ......, the creditors of A.B. late of ...., of ..... who died on ........, 20 ......., are to send by post prepaid to
..... of ..., so as to reach that address on or before ....,
20 ........, their full names, addresses and description, the full particulars of their claims, a statement of their accounts and the nature of the securities (if any) held by them, or in default thereof they will be excluded from the benefit of the said judgment (or order) unless the Court on application otherwise orders.
Dated the ........ day of ..., 20 ....
(Signature and address of the solicitor of the party prosecuting the judgment or order stating on whose behalf he is acting).
No. 83
FORM OF ADVERTISEMENT FOR CLAIMANTS OTHER THAN CREDITORS 0.44, r.10.
A.B. DECEASED, By judgment (or order) of the High Court dated .....,
20 ...., and made in an action in the matter of the the estate of A.B. deceased (late of
...., of ....... who died on ......., 20 ....... ), S. against U
..., 20 ..., B .... the following inquiry was (or inquiries were)
directed, viz:
(Set out inquiry or inquiries)
Notice is hereby given that all persons claiming to be entitled under the said inquiry (or inquiries) are to send by post prepaid to ....... of .... so as
to reach that address on or before ........, 20......, their full names, addresses and descriptions, and full particulars of their claims or in default thereof they will be excluded from the benefit of the said judgment (or order) unless the Court on application otherwise orders.
Dated the ........ day of ..., 20 ....
(Add name and address of the solicitor of the party prosecuting the judgment or order and state on whose behalf he is acting).
No. 84
AFFIDAVIT VERIFYING LIST OF CREDITOR’S CLAIMS 0.44, r.10.
(Title as in action)
We, C.D. of ...... and E.F. of ........ the above-named Plaintiffs (orDefendants or as may be) the executors (or administrations) of the above-named A.B. , deceased, and G.H. of ..... (the person to whom claims are required by the advertisement to be sent), severally do make oath (or affirm) and say as follows:
I, the said G.H. for myself say as follows:
1. I have in the paper writing now produced and shown to me and marked A set forth a list of all the claims the particulars of which have been sent to me by persons claiming to be creditors of the said A.B. , deceased, pursuant to the advertisement issued in that behalf, dated the ...... day of ......., 20 ...... And we, the said C.D. and E.F. for ourselves say as follows:
2. We have in the paper writing now produced and shown to us and marked B set forth a list of all the claims by persons claiming to be creditors of the said A.B. , deceased, which have been received by us or either of us other than claims comprised in the said paper writing marked A.
3. We have in the paper writing now produced and shown to us and marked C set forth a list of all the sums of money which were or may have been due and owing by the said A.B. , at the time of his death, and are or may be still due and owing, and which have come to our knowledge or to the knowledge of either of us but in respect of which no claim has been received by us or either of us has been sent in pursuant to the advertisement in that behalf,
And we the said C.D. , E.F. and G.H. for ourselves say as follows:
4. We have examined the particulars of the several claims and sums of money comprised in the said paper writings marked A, B and C and we have compared the same with the books, accounts and documents of the said A.B. (or as may be and state any other inquiries or investigations made) in order to ascertain, as far as we are able, to which of such claims and sum of money the estate of the said A.B. is justly liable.
5. From such examination (and state any other reasons) we are of opinion and verily believe that the estate of the said A.B. is justly liable to the amount set forth, in the sixth columns of the first parts respectively of the said paper writings marked A and B, and in the fifth column of the first part of the said paper writing marked C, and to the best of our knowledge and belief such several amounts are justly due from the estate of the said A.B. and proper to be allowed to the respective persons named in the said paper writings.
6. We are of opinion that the estate of the said A.B. is not justly liable to the amounts set forth in the second parts respectively of the said paper writing(s) marked A; B and C, and that the same ought not to be allowed without proof by the respective claimants (or we are not able to state whether the estate of the said A.B. is justly liable to the amounts set forth in the second parts respectively of the said paper writings marked A, Band C or whether such amounts or any parts thereof respectively are proper to be allowed without further evidence).
7. Except as hereinbefore mentioned, there are not, to the best of our knowledge information and belief, any claims of creditors against the estate of the said A.B. , or any sums of money due and owing by the said A.B. at the time of his death and still due and owing.
Sworn (or affirmed) as in Form 78.
A
List of claims the particulars of which have been sent in to G.H. by persons claiming to be creditors of A.B. : deceased, pursuant to the advertisement issued in that behalf, dated
the ... day of ..., 20... This paper writing marked A was produced and shown etc.
PART I
CLAIMS PROPER TO BE ALLOWED WITHOUT FURTHER EVIDENCE
|
Serial
|
Names of Claimants
|
Addresses of descriptions
|
Particulars of claims
|
Amount claimed
|
Amount proper to be claimed
|
|
|
|
|
|
$
|
$
|
PART II
CLAIMS WHICH OUGHT TO BE PROVED BY CLAIMANTS
|
Serial
|
Names of Claimants
|
Addresses of descriptions
|
Particulars of claims
|
Amount claimed
|
|
|
|
|
|
|
B
List of claims by persons claiming to be creditors of A.B. deceased other than claims sent in
pursuant to the advertisement dated the ... day of ......, 20 ....
This paper writing marked B was produced and shown etc.
PART I
CLAIMS PROPER TO BE ALLOWED WITHOUT FURTHER EVIDENCE
|
Serial
(in continuation List A |
Names of Claimants
|
Addresses of descriptions
|
Particulars of claims
|
Amount claimed
|
Amount proper to be claimed
|
|
|
|
|
|
|
$
|
PART II
CLAIMS WHICH OUGHT TO BE PROVED BY CLAIMANTS
|
Serial Number (in continuation
|
Names of Claimants
|
Addresses of descriptions
|
Particulars of claims
|
Amount claimed
|
|
|
|
|
|
$
|
C
List of claims of money which may be due but in respect of which no claim has been received.
This paper writing marked C was produced and shown etc.
Note — This list will include, e.g. mortgage debts where mortgagees have not sent in claims.
PART I
SUMS ADMITTED TO BE DUE
|
Serial
|
Names of Claimants
|
Addresses of descriptions
|
Particulars of debts
|
Amount of debt
|
|
|
|
|
|
$
|
PART II
SUMS WHICH MAY BE DUE BUT IN RESPECT OF WHICH THE LIABILITY OUGHT TO BEPROVED
|
Serial
|
Names of Claimants
|
Addresses of descriptions
|
Particulars of sums which may be due
|
Amount in respect of which proof is required
|
|
|
|
|
|
$
|
No. 85
AFFIDAVIT VERIFYING LIST OF CLAIMS OTHER THAN CREDITOR’S CLAIMS 0.44, r.12.
(Title as in action)
We, C.D. of ........ and E.F. of ........ the abovenamedPlaintiff’s (or Defendants, or as may be), the executors (or administrators) of the abovenamed A.B. , deceased (or trustees of heSettlement etc.), and G.H. of ........ (the person to whom claims are required by the advertisement to be sent), severally do make oath (or affirm) and say as follows:
I, the said G.H. for myself say as follows:
1. I have in the paper writing now produced and shown to me and markedD set forth a list of all the claims the particulars of which have been sent to me by persons claiming under the inquiry (or inquiries, numbered ... and ......) directed by the
judgment (or order) in this action, dated the ....... day of ........, 20 ......, pursuant to the advertisement issued in that behalf, dated the ....... day of ..., 20 ...... And we, the said C.D. and E.F. for ourselves say as follows:
2. We have in the paper writing now produced and shown to us and marked E set forth a list of all the claims by persons claiming to be interested in the subject-matter of the said inquiry (or inquiries) which have come to our knowledge or to the knowledge of either of us other than claims contained in the said paper writing marked D. And we, the said C.D. , E.F. , and G.H. , for ourselves say as follows:
3. Except as hereinbefore mentioned there are not to the best of our knowledge information and belief any claims under the said inquiry (or inquiries).
Sworn (or affirmed) as in Form 78.
D
List of claims the particulars of which have been sent in to G.H. by persons claiming under the inquiry (or inquiries ........ and ....) and directed by the judgment (or order) in this action dated etc. pursuant to the advertisement issued in that behalf dated the
..... day of ....., 20 .......
THIS PAPER WRITING MARKED D WAS PRODUCED AND SHOWN ETC.
|
Serial Number
|
Names of Claimants (in alphabetical order)
|
Addresses and descriptions
|
Particulars of claim
|
E
List of claims by persons claiming to be interested in the subject of the inquiry the (or inquiries .... and ........ ) directed by the judgment (or order) in this action, dated etc. other than claims sent in pursuant to the advertisement, dated the ...... day of ......, 20 .....
THIS PAPER WRITING MARKED E WAS PRODUCED AND SHOWN ETC.
|
Serial Number (in continuation of numbers
in List D) |
Names of Claimants (in alphabetical order)
|
Addresses and descriptions
|
Particulars of claim
|
No. 86
CERTIFICATE OF REGISTRAR 0.44, r.21.
(Title as in action)
I hereby certify that the result of the accounts and inquiries which have been taken and made in pursuance of the judgment (or order) in this cause date the ....
day of ..., 20 ......., is as follows:
1. The defendants ......, the executors of ... the testator, have received movable property to the amount of $...... and they have paid, or are
entitled to be allowed on account thereof sums to the amount of $....., leaving a
balance due from (or, to) them of $ ....... on that account.
The particulars of the above receipts and payments appear in the account marked
..., verified by the affidavit of .... filed on the .... day of ........, and which account is to be filed with this certificate, except that in addition to the sums appearing on such account to have been received, the said defendants are charged with the following sums(state the same here or in a schedule), and except that I have disallowed the items of disbursement in the said account numbered ......, and ........
2. The debts of the testator which have been allowed, are set forth in the ....... Schedule hereto, and with the interest thereon and costs mentioned in the schedule are due to the persons therein named, and amount altogether to $ ....
3. The funeral expenses of the testator amounted to the sum of $......, which I have allowed the said executors in the said account of movable property.
4. The legacies given by the testator are set forth in the schedule hereto, and with the interest therein mentioned remained due to the persons therein named, and amount altogether to $ .......
5. The outstanding movable property of the testator consists of the particulars set forth in the ... Schedule hereto.
6. The immovable property to which the testator was entitled consists of the particulars set forth in the ....Schedule hereto.
7. The defendants have received rents and profits of the testator’s immovable property, etc. (in a form similar to that provided with respect to the movable property).
8. The incumbrances effecting the said testator’s immovable property are specified in the ....... Schedule hereto.
9. The immovable properties of the testator directed to be sold, have been sold and the purchase-moneys amounting altogether to $ ..... have been paid into Court.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
N.B. — The above numbers are to correspond with the numbers in the order after each statement; the evidence produced is to be stated as follows:
The evidence produced on this account (or inquiry) consists of the probate of the testator’s will, the affidavit of A.B. filed ......, and paragraph numbered .... of the affidavit of C.D. , filed.
No. 87
NOTICE OF CERTAIN JUDGMENTS 0.45, r.7.
The indorsement should be in the following words or words to the following effect:
(a) In the case of a judgment or order requiring a person or body corporate to do an act within a specified time —
“If you, the within-named .... (or .... ) neglect to obey this judgment (or order) by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the same”.
(b) In the case of a judgment or order requiring a person to abstain from doing an act —
“If you, the within-named ... disobey this judgment (or order), you will be liable to process of execution for the purpose of compelling you to obey the same”.
(c) In the case of a judgment or order requiring a body corporate to do or to abstain from doing the act, but it is sought to take enforcement proceedings against a director or other officer of that order.
“If ...... neglect to obey this judgment (or order) by the time therein limited (or in the case of an order to abstain from doing an act, if ........
disobey this judgment (or order), you (a director or officer of the said ....) will be liable to process of execution for the purpose of compelling the said to obey the same”.
No. 88
WRIT OF SEIZURE AND SALE 0.45, r.12.
(Title as in action)
THE CHIEF JUSTICE OF BRUNEI DARUSSALAM IN THE NAME OF HIS MAJESTY THE SULTANAND YANG DI-PERTUAN
To the Sheriff,
We command you that you cause to be levied and made out of the property liable to be seized under a writ of seizure and under sale which shall be identified by or on behalf of
(name of execution creditor) as belonging to (name of execution debtor) now or late of
(address of execution debtor) by seizure and if it be necessary by sale thereof $ ..... which the said (name of execution creditor) lately in Our High Court recovered against the said (name of execution debtor) by a judgment (or order or as may be) bearing
the ....... day of ........, 20 ... And in what manner you shall have executed this Our writ make appear to us in our said Court immediately after the execution thereof. And have there then this writ.
Dated the ........ day of ..., 20 ....
Entered No. ........ 20 ...... Clerk
(Seal)
.... Registrar
Memorandum to be subscribed on the Writ
This writ may not be served more than 12 months after the above date unless renewed by order of Court.
Indorsements to be made on Writ before issue
THIS WRIT is issued by ...........
of ....... Solicitor for the execution creditor ........ who resides at ...... The execution debtor resides at .......
Amount of judgment and costs ... ... ... ... ... ... ... ... ... ... ... ... ...
Subsequent costs (if any) ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Paid to account of judgment ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Remaining due ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Costs of this writ ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Interest on $ ..... at ........ % p.a. from .... to ...... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Property seized on ......... Amount of levy paid on ....... Property sold on .... by ....... for ........
Expenses of Execution —
Lotting and advertising
Auctioneers commission
Court commission
Other Court fees
Watchmen’s wages
Other legal expenses (specify them) Paid into Court —
Paid to credit of landlord under
Paid to credit of Writ of Distress
Paid to credit of execution creditor
Paid to credit of execution debtor
Dated the ........ day of ..., 20 ....
.... Sheriff
No. 89
WRIT OF DELIVERY 0.45, r.12.
(Title as in action)
THE CHIEF JUSTICE OF BRUNEI DARUSSALAM IN THE NAME OF HIS MAJESTY THE SULTANAND YANG DI-PERTUAN
To the Sheriff,
We command you that, without delay, you do seize and deliver, to the above-named (name of execution creditor) the following movable property, that is to say (describe the property delivery of which has been adjudged or ordered) (and $ ....... damages and $ ...... costs) which the said (name of execution creditor) lately in our High Court recovered against the said (name of execution debtor) by a judgment (or order or as may be) bearing the .... day of ....., 20 ........ (And we further command you that if the said movable property cannot be found within Brunei Darussalam you cause to be levied and made out of the property liable to be seized under a writ of seizure and sale belonging to the said (name of execution debtor) and if necessary by sale thereof $ ...., being the assessed value of the said property). And in what manner you have executed this our writ make appear to us in our said Court immediately after the execution thereof. And have there then this writ.
Dated the ........ day of ..., 20 .... Entered No. ...... 20 ......
Clerk
(Seal)
.... Registrar
Memorandum on Writ (as in Form 88).
Indorsements on Writ (as in Form 88 or as required).
No. 90
WRIT OF POSSESSION 0.45, r.12.
(Title as in action)
THE CHIEF JUSTICE OF BRUNEI DARUSSALAM IN THE NAME OF HIS MAJESTY THE SULTANAND YANG DI-PERTUAN
To the Sheriff,
Whereas, lately, by a judgment of our said Court bearing the .... day of ......., 20 ......., it was adjudged (or ordered) that the defendant (name of defendant) do give the plaintiff (name of plaintiff) possession of (describe the immovable property delivery of which has been adjudged or ordered) and do pay him
$ ...... and) $.... costs.
We command that you enter the said immovable property and cause (name of plaintiff) to have possession of it.
And we further command that you cause to be levied and made out of the property liable to be seized under a writ of seizure and sale belonging to the said (name of defendant) and if
necessary by sale thereof $ ..... And in what manner you have executed this our writ make appear to us in our said Court immediately after the execution thereof. And have there then this writ.
Dated the ........ day of ..., 20 .... Entered No. ...... 20 ......
Clerk
(Seal)
.... Registrar
Memorandum on Writ (as in Form 88).
Indorsements on Writ (as in Form 88 or as required).
No. 91
SUMMONS FOR LEAVE TO ISSUE EXECUTION 0.46, r.3.
(Title as in action)
Let all parties concerned attend before the Judge (or Registrar) in Chambers on ..... the ....... day of ......, 20 .... at ....... m., on the hearing
of an application on the part of ...... that ...... may be at liberty to issue ... execution (or writ of seizure and sale,or as may be) against the defendant (or as may be) on the judgment herein dated the ....... day of ........, 20 ......, (notwithstanding that 6years have elapsed since such judgment, or as may be) and that the defendant (or as may be) do pay the cost of and occasioned by this application.
Dated the ........ day of ..., 20 ....
Entered No. ...... 20 ...... Clerk
(Seal)
.... Registrar
This summons is taken out by the plaintiff (or as may be) or (state address) to the defendant (or as may be).
No. 92
PRAECIPE FOR WRIT OF EXECUTION 0.46, r.4.
(Title as in action)
(a) Praecipe for writ of seizure and sale.
To the Registrar,
Please issue writ of seizure and sale against (name of execution debtor) of(address of the execution debtor) to levy the sum of $........ (and $ ........ for interest
thereon at the rate of 8% per annum from the ........ day of ........,
20 ......., till the ...... day of ......, 20 ........ ), due underthe judgment (or order) herein dated the ....... day of ....., of 20 ......,
which remains unsatisfied to the extent of $ ...
Amount adjudged ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
Costs ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... Interest as per calculation attached ... ... ... ... ... ... ... ... ... ... ... Subsequent costs ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... Paid to account ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... Balance still due ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
The sealed copy of the judgment is attached.
Date of order granting leave to execute .......Name and address of execution creditor ......
His solicitors ...........
Address for service ........Dated the ........ day of ..., 20 ....
.... Execution Creditor
(or by or) on behalf of solicitor for
(b) Praceipe for writ of delivery. To the Registrar,
Please issue writ of delivery against (name of execution debtor) of(address of execution debtor) for delivery of (describe the movable property) under the judgment dated the ..... day of ......., 20 ...., which has not been delivered to me by the execution debtor in accordance with the said judgment.
(And if the said movable property cannot be found, to levy $..... the value thereof as assessed by the Court in the said judgment (or in an order dated the ...
day of ......., 20 .... )).
(And further “to levy ......” (as in (a) above)).
(c) Praecipe for writ of possession. To the Registrar,
Please issue a writ of possession against (name of defendant) of (address of defendant) to deliver possession of (describe the property) under the judgment herein dated the ..... day of ......, 20 ...
(And further “to levy ......” (as in (a) above)).
No. 93
CONSENT TO ENTRY OF SATISFACTION 0.46, r.9.
(Title as in action)
I, ...... of ....... being the plaintiff (or as may be) named in, and the sole person entitled to the benefit of the judgment herein, hereby consent to a memorandum of satisfaction of the said judgment being entered in the Cause Book.
Dated the ........ day of ..., 20 ....
....... Advocate and Solicitor
or
Commissioner for Oaths
....... Plaintiff (or as may be)
No. 94
NOTICE OF SEIZURE AND INVENTORY 0.46, r.16. 0.75, r.4.
(Title as in action)
Take notice that I have this day seized the movable property found on or upon the premises No. ..... pursuant to a Writ of Seizure and Sale/Writ of Distress No. ...... of 20 ......., for the sum of $ ........ and that I value the property seized at $.... approximately.
Unless you pay the amount above-mentioned together with costs of this execution within
7 days from the date hereof or obtain an order of the Court to the contrary the same will be
sold by public auction on the ....... day of ...., 20 ......
Amount due under writ ... ... ... ... ... ... ... ... ... ... ... ... ... $ .......
(Rent due for ........ months from) the ...... day of ..., 20 ......) to the ...... day of ....., 20 ......) at $....... a month)
Costs of writ ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... $ .......
Court commission ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... $ .......
Lotting and advertising ... ... ... ... ... ... ... ... ... ... ... ... ... ... $ .......
Auctioneer’s commission ... ... ... ... ... ... ... ... ... ... ... ... ... $ .......
Other Court fees ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... $ .......
Watchmen wages at $ ........ a day ...... ... ... ... $ .......
Other legal expenses ... ... ... ... ... ... ... ... ... ... ... ... ... ... $ .......
Dated the ........ day of ..., 20 ....
.... Sheriff
(For Inventory see overleaf)
To and all other whom it may concern.
No. 95
NOTICE OF SALE 0.46, r.23.
(Title as in action)
Notice is hereby given that the property seized at ..... on the ...... day of ......, 20 ......, under writ of Distress/Seizure and Sale No. ..... of 20 ........, will be sold by public auction on the ... day of ........,
20 ........, at ......, m., unless the amount to be levied and the fees and expenses of execution be sooner paid.
Dated the ........ day of ..., 20 ....
.... Sheriff
No. 96
AFFIDAVIT IN SUPPORT OF APPLICATION FOR ORDER FOR EXAMINATION OF JUDGMENTDEBTOR 0.48, r.1.
(Title as in action)
I, ..... of .... do make oath (or affirm) and say as follows:
1. I am a ....... in the employ of ...... Solicitors for the plaintiff and am duly authorised to make this affidavit on behalf of ....
2. On the ........ day of ..., 20 ...., judgment was entered for the plaintiff for $ ........ and $ ........ costs (or as may be). The said judgment remains wholly unsatisfied (or unsatisfied as to the total sum of $ ......, or as may be).
3. In order to enable the plaintiff to decide upon the methods to employ to enforce the said judgment, it is desired to examine the judgment debtor (or ....., an officer of the judgment debtor company) on the question whether any and if so what debts are owing to him (or the judgment debtor company) and or means of satisfying the judgment debt.
4. In these circumstances, I respectively ask for an order that the said judgment debtor (or ...) to attend before the Registrar to be examined on the said questions, and to produce upon such examination all books or documents in his possession relevant to the said questions at the time and place appointed for his examination.
Sworn (or affirmed) as in Form 78.
No. 97
ORDER FOR EXAMINATION OF JUDGMENT DEBTOR 0.48, r.1.
(Title as in action)
Upon the application of ....... and upon reading the affidavit of ....... filed the ........ day of ....., 20 ......, and upon hearing ....... It is ordered that the above-named judgment debtor ...... attend and be orally examined as to whether any and what debts are owing to him, and whether the said judgment debtor has any and what other property or means of satisfying the judgment signed herein, on the ........ day of ..., 20 ......., before the Registrar, and that the said judgment debtor produce any books or documents in his possession or power relating to the same before the Registrar at the time of the examination and that the costs of this application and of the examination thereunder be in the discretion of the Registrar making the order.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
Note — This order requires personal service, and the copy served must bear a copy of the appointment of the date for the examination, and be indorsed as prescribed by 0.45, r.7(4), when it may be enforced by committal.
No. 98
GARNISHEE ORDER TO SHOW CAUSE 0.49, r.1.
IN THE HIGH COURT OF BRUNEI DARUSSALAM
Suit No. .... of 20 .......
Between
........Judgment creditor,
and
...........Judgment debtor,
and ......... Garnishee.
Upon the application of ...... and upon reading the affidavit of ........
sworn to (or affirmed) and filed the ..... day of ........, 20 .....,
and upon hearing .......
It is ordered by the Judge (or Registrar) that all debts due or accruing due from the above- mentioned garnishee to the above-mentioned judgment debtor (in the sum of $ ....) be attached to answer a judgment recovered against the said judgment debtor by the above-named judgment creditor in the High Court on the .... day of ....., 20 ....., for the sum (or to answer an order made in High Court on the ... day of ......., 20 ....., ordering payment by the said judgment debtor to the above-named judgment creditor of the sum) of $ ..... (debt and $ ....... costs) (together with the costs of the garnishee proceedings) on which judgment (or order) the sum of $ ...... remains due and unpaid.
And it is ordered that the said garnishee attend before theJudge (or Registrar) in Chambers, on ..... the ...... day of ..., 20......., at ....... m., on an application by the said judgment creditor that the said garnishee do pay to the said judgment creditor the debt due from the said garnishee to the said judgment debtor, or so much thereof as may be sufficient to satisfy the said judgment (or order), together with the costs of the garnishee proceedings.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
To the above-named garnishee and judgment debtor
No. 99
AFFIDAVT IN SUPPORT OF GARNISHEE ORDER 0.49, r.2.
IN THE HIGH COURT OF BRUNEI DARUSSALAM
Suit No. ....... of 20 .......
Between
........Judgment creditor,
and
...........Judgment debtor. I, .....,of ........, the above-named judgment creditor (or state the name, the residence and the occupation or description of the deponent), do make oath (or affirm) and say as follows:
1. By a judgment (or order) of the Court given in this action, and dated ... day of ......,20 ....., it was adjudged (or ordered) that the above-named judgment debtor should pay me, or the above-named judgment creditor) the sum of
$ ..., and cost $ .......
2. The said judgment (or order) still remains unsatisfied to the extent of $ .....
and interest amounting to $ ......
3. To the best of my information or belief (state the name, address and description of the garnishee) is indebted to the judgment debtor in the sum of $ .... or thereabouts, and is within the jurisdiction of this Court. The grounds of my information and belief are (state the sources of the deponent’s information or grounds of belief).
4. I am duly authorised by the above-named judgment creditor to make this affidavit on his behalf).
Sworn (or affirmed) as in Form 78.
No. 100
GARNISHEE ORDERS 0.49, r.4.
(Title as in Form 98)
(a) Garnishee order absolute where garnishee owes more than judgment debt.
Upon reading the affidavit of ..... filed the ... day of ...., 20 ......., and the order to show cause made herein dated the ....... day of ....., 20 ...., and upon hearing the solicitors for the judgment creditor and the garnishee, whereby it was ordered that all debts due or accruing due from the above-named garnishee to the abovenamed judgment debtor should be attached to answer a judgment recovered against the High Court on the ..... day of ......., 20 ....., for the sum (or to answer an order made in the High court dated the ..... day of ..., 20 ......., ordering payment by the said judgment debtor to the above-named judgment creditor of the sum) of $ .... (debt and $ ..... costs) (together with the costs of the garnishee proceedings) on which judgment (or order) the sum of $ ........ remained due and unpaid.
It is ordered that the said garnishee do forthwith pay to the said judgment creditor (or into Court if the judgment creditor is resident outside the scheduled territories as defined by the Exchange Control Act, or would receive payment of the said sum on behalf of a person so resident, unless the Controller’s permission under the said Act has been given unconditionally or upon conditions which have been complied with) $ ...... being so much of the debt due from the said garnishee to the said judgment debtor as is sufficient to satisfy the said judgment debt and costs, together with $ ........ the costs of the garnishee proceedings, and that the said garnishee be at liberty to retain $ ..... for his costs of this application out of the balance of the debt due from him to the judgment debtor.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
(b) Garnishee order absolute where garnishee owes less than judgment debt. Upon reading (as above).
It is ordered that the said garnishee (after deducting therefrom $... for his costs of this application) do forthwith pay to the said judgment creditor (or into Court if the Judgment creditor is resident outside the scheduled territories as defined by theExchange Control Act (Chapter 141), or would receive payment of the said sum on behalf of a person so resident, unless the Controller’s permission under the said Act has been given unconditionally or upon conditions which have been complied with) $ ..... the debt due from the said garnishee to the said judgment debtor. And that the sum of $ ...... the costs of the judgment creditor of this application be added to the judgment debt and be retained out of the money recovered by the said judgment creditor under this order and in priority to the amount of the judgment debt.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 101
ORDER FOR ISSUE BETWEEN JUDGMENT CREDITOR AND GARNISHEE 0.49, r.5.
(Title as in action)
Upon reading the affidavit of ... filed the ... day of ........,
20 ......, and the order nisi herein, dated the ...... day of .......,
20 ....., and upon hearing counsel for the judgment creditor, the garnishee and the judgment debtor.
It is ordered that the judgment creditor and the garnishee proceed to the trial of an issue wherein the said judgment creditor shall be plaintiff and the said garnishee shall be defendant, and that the question to be tried shall be whether there was any debt due or accruing due in any and what amount from theJudgment debtor to the said garnishee at the time the said order nisi was served. And it is further ordered that the question of costs and all further questions be reserved to the Judge (or Registrar) trying the same issue.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
Nos. 102
(There is no No. 102)
Nos. 103
(There is no No. 103)
No. 104
ORDER ABSOLUTE IMPOSING CHARGE ON SECURITIES 0.50, r.2.
(Title as in action)
Upon the application of ..... and upon reading the affidavit of ... filed the ...... day of ........, 20 ........, and the order to show cause made herein on the .... day of ......, 20 ..., and upon hearing ........... It is ordered that the interest of the defendant in the sum of $ ..... stock (or ....... shares in the Co. Ltd., or as may be) now standing in the name of the said defendant (or as may be) stand charged with the payment of $ ........, the amount due from the said defendant to the plaintiff on the judgment (or order) of the High Court dated the ..... day of ......, 20 ......, (a nd interest thereon at the rate of $ .... % per annum from the said date until payment) together with $ ..... the costs of this application, the said costs to be added to the judgment debt.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 105
ORDER IMPOSING CHARGE ON SECURITIES: ORDER TO SHOW CAUSE 0.50, r.2.
(Title as in action)
Upon the application of ...... and upon reading the affidavit of ........ filed the ..... day of ..., 20 ....., and upon hearing ....... whereby it appears that by a judgment (or order) made in the High Court on the ..... day of ....., 20 ......, the defendant was the defendant was ordered to pay to the plaintiff the sum of $ ....... and $ ...... costs (or as may be), on which judgment (or order) the sum of $ .... remains due and unpaid and that there is standing in the books of the Treasury in the (said defendant’s name in his own right or as may be) the sum of $ ....., (describing the stock etc. on which the charge is sought) (or there are .... ordinary or as may be shares in the ....... Co. Ltd., a public company registered in Brunei Darussalam, now standing in the said defendant’s name in his own right or as may be).
It is ordered by the Judge (or Registrar) that unless sufficient cause to the contrary be shown before the Judge (or Registrar) on .... the ...... day of ....., 20....., at ..... m., the defendant’s interest in the said stock (or shares) so standing as aforesaid shall and it is ordered that in the meantime it do, stand charged with the payment of $.... due on the said judgment (or order) together with the costs of this application.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 106
AFFIDAVIT AND NOTICE UNDER 0.50, r.10
(Title as in action)
and
In the matter of (state the settlement or under document under which the deponent’s interest arises giving the date and other particulars sufficient to identify the document)
and
In the matter of Order 50, rule 10 of the Rules of the High Court.
I, ........ , (or ........ the solicitor of ....), of ....... do make oath (or affirm) and say that according to the best of my knowledge, information and belief I am(or the said .... is) beneficially entitled under the above-mentioned settlement (or as may be) to an interest in the securities specified in the notice hereto annexed.
Sworn (or affirmed) as in Form 78.
This affidavit is filed on behalf of .......... whose address is ........ notice to be annexed to affidavit.
To the Treasury,
Brunei Darussalam.
(or as may be)
Take notice that the securities comprised in and subject to the trusts of the settlement (or as may be) referred to in the affidavit to which this notice is annexed consist of the following namely (specify the stock, shares etc., stating the names in which it stands).
This notice is intended to stop the transfer of the said securities and not the payment of any dividend thereof or interest thereon (or and also the payment of any dividend thereof or interest thereon).
...... Deponent
(or solicitor of deponent if affidavit sworn by him)
No. 107
ORDER ON ORIGINATING MOTION RESTRAINING TRANSFER OF STOCK ETC. 0.50, r.14.
(Title as in action)
and
In the matter of the trusts of ....... and
In the matter of Order 50, rule 14, of the Rules of the High Court.
Dated the ........ day of ..., 20 ....
Upon the hearing of the originting motion for an injunction this day unto this Court by counsel for the applicant.
And the applicant by his counsel undertaking to abide by any order the Court may hereafter make should it decide that the respondents (the Treasury or as may be) have sustained damage by reason of this Order and are entitled to damages which the applicant ought to pay:
It is ordered that the Treasury (or the ..... Co. Ltd., or as may be) be restrained until the ...... day of ......., 20 ........, or further order from permitting the transfer of (describe stock) standing in the name of (state name of holder of stock) in their books, or any part thereof, and from paying any dividend or interest due or to become due thereon.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 108
SUMMONS FOR APPOINTMENT OF RECEIVER 0.51, r.3.
(Title as in action)
Let the defendant ........ attend before the Judge (or Registrar) in
Chambers on ........ the ...... day of ........, 20......., at ... m., on the hearing of an application on the part of the plaintiff for an order that a receiver be appointed (or that ...... be appointed receiver) in this action to receive the rents, profits and moneys receivable in respect of the interest of the defendant
.... in the following property, namely(describe the property) in or towards satisfaction of the moneys and interest due to the plaintiff under the judgment (or order) in this action dated the ..... day of ..., 20........, and for an order as to the costs of this application.
Dated the ........ day of ..., 20 .... Entered No. ........ 20 ......
Clerk
(Seal)
.... Registrar
This summons is taken out by ....... of .... To the above-named ......(and his solicitor).
No. 109
ORDERS FOR APPOINTMENT OF RECEIVER ETC. 0.51, r.3.
(a) Order directing summons for appointment of receiver and granting injunction meanwhile.
Upon the application of ........ and upon reading the affidavit of .... filed the ... day of ......., 20 .....,and upon hearing ... It is ordered that the defendant do attend before the Judge (or Registrar) on the .... day of ...., 20....., at .... m., on the hearing of an application on the part of the plaintiff for the appointment of ....... as receiver in this action, on the usual terms, to receive the rents profits and moneys receivable in respect of the said defendant’s interest in the following property, namely
(describe the property) in or towards satisfaction of the sum of $........ debt
$ ... costs and interest on the said sums at the rate of $ .... %, per annum from the ........ day of ......, 20 ......, due under the the judgment (or order) in this action dated the ....... day of ......, 20 ........
And the plaintiff (by his solicitor) hereby undertaking to abide by any order the Court may hereafter make should it decide that the said defendant has sustained damage by reason of this order and is entitled to damages which the plaintiff ought to pay, it is ordered that the said defendant by himself, his agents or servants, or otherwise be restrained, and an injunction is hereby granted restraining him until after the hearing of the above application, from assigning, charging or otherwise dealing with the said property.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
(b) Order appointing receiver by way of equitable execution
Upon the application of ........ and upon reading the affidavit of .....
filed the ... day of ......., 20....., and upon hearing ...
(If security ordered). It is ordered that ..... of ..... on first giving security to the satisfaction of the Registrar, be and is hereby appointed to receive the rents, profits and moneys receivable in respect of the above-named defendant’s interest in the following property, namely (describe property).
(If no security ordered and receiver is not the plaintiff). The plaintiff being answerable for the acts and defaults of the receiver, it is ordered the .... of ....... be and is hereby appointed to receive (continue as above) but he shall not receive more than the amount of the judgment debt and allowed costs of obtaining this order without leave of the Court or first giving (at the plaintiff's cost unless otherwise ordered) the usual security to the satisfaction of the Registrar.
(If no security ordered and receiver is the plaintiff: as above omitting“The plaintiff being answerable for the acts and defaults of the receiver” and the words after “the Court”).
(In all cases continue as follows:)
That this appointment shall be without prejudice to the rights of any prior incumbrancers upon the said property who think proper to take possession of or receive the same by virtue of their respective securities or, if any prior incumbrancer is in possession, then without prejudice to such possession.
And that the tenants of premises comprised in the said property to attorn and pay their rents in arrear and growing rents to the receiver.
And that the receiver have liberty, if he shall think proper (but not otherwise), out of the rents, profits and moneys to be received by him to keep down the interest upon the prior incumbrances, according to their priorities,and be allowed such payments, if any, in passing his accounts.
And that the receiver shall on the ....... day of .... (3 months after the date of order), and at such further and other times as may be ordered by the Registrar leave and pass his accounts, and shall on the ....... day of .....,
(4 months after the date of order), and at such further and other times as may be hereafter ordered by the Registrar pay the balance or balances appearing due on the accounts so left or such part thereof as shall be certified as proper to be so paid, such sums to be paid in or towards satisfaction of what shall for the time being be due in respect of the judgment signed on the ...... day of ...... for the sum of $...... debt and
$ .... costs, making together the sum of $....
And that the costs of the receiver (including his remuneration), the costs of obtaining his appointment, of completing his security (if any), of passing his accounts and of obtaining his discharge shall not exceed 10% of the amount due under the said judgment or the amount recovered by the receiver, whichever is the less, provided that not less than $100 be allowed unless otherwise ordered.Such costs shall be taxed unless assessed by the Registrar and shall be primarily payable out of the sums received by the receiver, but if there shall be no sums received or the amount shall be insufficient, then upon the certificate of the Registrar being given stating the amount of the deficiency,such certificate to be given after passing the final account, the amount of the deficiency so certified shall be paid by the defendant to the plaintiff.
It is also ordered that the balance (if any) remaining in the hands of the receiver, after making the several payments aforesaid, shall unless otherwise directed by the Registrar forthwith be paid by the receiver into Court to the credit of this action, subject to further order.
And that any of the parties be at liberty to apply to the Registrar inChambers as there may be occasion.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 110
ORDER OF COMMITTAL 0.52, r.1.
(Title as in action)
Upon motion this day made unto this Court by counsel for the plaintiff and upon reading the affidavit of .... filed the ...... day of ..., 20 ...., of service on the defendant ..... of a copy of the order of the Court dated the ...... day of ......, 20 ......, and of notice of this motion: And it appearing to the satisfaction of the Court that the defendant ....... has been guilty of contempt of court in (state the contempt):
It is ordered that for his said contempt the defendant do stand committed to prison to be there imprisoned (until further order).
(It is further ordered that this order shall not be executed if the defendant ........ complies with the following terms, namely,........ ).
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 111
WARRANT FOR COMMITTAL 0.52, r.9.
(Title as in action)
Whereas by an Order of this Court pronounced this day it was ordered that the above- named ...... do stand committed to ...... prison for his contempt in the said Order mentioned.
These are therefore to command you the Sheriff and every Police Officer to apprehend the said ..... and him safely convey to ..... prison there to be detained and kept in safe custody.
Dated the ........ day of ..., 20 ....
(Seal)
No. 112
.... Registrar
NOTICE TO BE SERVED THE WRIT OF
HABEAS CORPUS AD SUBJICIENDUM 0.54, r.6.
(Title as in action)
Whereas this Court ( ....... ) has granted a writ of habeas corpus directed to ........ (or other person having the custody of ..... if so) commanding him to have the body of ... before the said Court (or before a judge in Chambers) at the High Court on the day and at the time specified in the notice together with the day and cause of his being taken and detained. Take notice that you are required by the said writ to have the body of the said ... before this Court (or before the Judge aforesaid) on ....... the ..... day of ....., 20 ....., at ... m., and to make a return to the said writ. In default thereof the said Court will then, or so soon thereafter as counsel can be heard, be moved to commit you to prison for your contempt in not obeying the said writ (or if in vacation application will then be made to one of the Judges of the said Court for a warrant for your arrest in order that you may be held to bail to answer for your contempt in not obeying the said writ).
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
To ......
No. 113
WRIT OF HABEAS CORPUS AD SUBJICIENDUM 0.54, r.9.
(Title as in action)
THE CHIEF JUSTICE OF BRUNEI DARUSSALAM, IN THE NAME OF HIS MAJESTY THE SULTANAND YANG DI-PERTUAN
To the superintendent of ........ prison at ....... We command you that you have before the Court (or before a Judge in Chambers) at the High Court, on the day at the time specified in the notice served with this writ, the body of being taken and detained under your custody as is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called therein, that our Court (or Judge) may then and there examine and determine whether such cause is legal, and have you there then this writ.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 113A
IN THE HIGH COURT OF BRUNEI DARUSSALAM 0.55, r.2.(1).
Civil Appeal No. ....... of 20 .......
A.B. ,........App ellant and
C.D. ,..........Respondent
(In the matter of ..... No. ........ of 20 .......
between
......... and
.......).
MEMORANDUM OF APPEAL
A.B. , the appellant above-named, appeals to the High Court against the whole part of the decision of the Subordinate Court at ....... given on the ........ day of ....., 20 .....,on the following grounds —
(Set out in numbered paragraphs)
Dated the ........ day of ..., 20 ....
...... Appellant
...... Solicitor for theAppellant
To the Registrar and the Respondent.
Note — (1) Insert the number of proceedings in Court below and the names of the parties thereto.
No. 113B
IN THE HIGH COURT OF BRUNEI DARUSSALAM 0.55, r.3.
Civil Appeal No. ..... of 20..... between
A.B. ,........App ellant
and
C.D. ,..........Respondent (In the matter of ....... No. .... of 20 ... between
.........
and
........)(1)
NOTICE OF CROSS APPEAL
Take notice that, on the hearing of the above appeal ...... the respondent above-named, will contend that the decision of the Subordinate Court at ... given on the ..... day of ......., 20......., ought to be varied to the extent and on the grounds hereinafter set out:
(Set out in numbered paragraphs —
(a) the nature of relief claimed; and
(b) the grounds relied on).
Dated the ........ day of ..., 20 ....
.... Respondent
To the Registrar and the Appellant.
.... Solicitor for theRespondent
Note — (1) Insert the number of proceedings in Court below and the names of the parties thereto.
No. 114
NOTICE OF APPEAL TO JUDGE IN CHAMBERS 0.56, r.1.
(Title as in action)
Take notice, that the above-named plaintiff (or defendant) intends to appeal against the decision of the Registrar given on the ..... day of ...., 20......, ordering (or refusing to order) (state in full the order appealed against).
Dated the ........ day of ..., 20 ....
.......
Solicitor for the ........ And further take notice, that you are required to attend before the Judge in Chambers on ... the ....... day of ......, 20 ....., at ........ m., on the hearing of an application by the said plaintiff (or defendant), that (state the order sought to be obtained).
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
To ...
No. 115
NOTICE OF APPEAL TO COURT OF APPEAL 0.57, r.3.
Civil Appeal No. ..... of 20 .... between
S 30/91
..........Appellant
and
.......Respondent In the matter ..... No. ..... of 20 ........, between
.........
and
.........
NOTICE OF APPEAL
Take notice that ......... being dissatisife d with the decision of ....... given at ..... on the ...... day of ..., 20 ......., appeals to the Court ofAppeal against
( the whole of the said decision
( such part only of the said decision either/or ( as decides that
( (Set out details)
Dated the ........ day of ..., 20 ....
........
(Signed) Appellant
(or Solicitor for the Appellant)
To the Registrar, Supreme Court. and to:
The address for service of the appellant is ...
No. 116
CERTIFICATE FOR SECURITY FOR COSTS 0.57, r.3.
(Title as in Form 115)
[S 30/91]
This is to certify that .... of ..... the above-named appellant has deposited the sum of $100 by way of security for the respondents costs of the appeal in theRegistry of the Supreme Court.
Dated the ........ day of ..., 20 ....
(Seal)
[S 31/00]
.... Registrar
No. 117
PETITION OF APPEAL 0.57, r.6.
(Title as in Form 115)
[S 30/91]
To the Judges of the Court of Appeal.
The Petition of the above-named appellant shows as follows —
1. The appeal arises from a claim:
2. By judgment dated the ........ day of ......, 20 ....., judgment was given for .......
3. Your petitioner is dissatisfied with the said judgment on the following grounds —
(State the particular grounds of appeal on which the appellant relies).
4. Your petitioner prays that such judgment may be reversed (or as may be).
Dated the ........ day of ..., 20 ....
........
(Signed) Appellant
(or Solicitor for the Appellant)
No. 118
RESPONDENT’S NOTICE 0.57, r.7.
(Title as in Form 115)
[S 30/91]
Take notice that, on the hearing of the above appeal, the respondent above-named, will contend that the decision of ..... given on the ..... day of ......,20 ...., ought to be varied and on the grounds hereinafter set out
(or affirmed on the grounds additional to those relied upon the trial Court)—
(Set out in numbered paragraphs —
(a) the nature of the relief claimed; and
(b) the grounds relied upon).
......
(Signed) Respondent,
(or Solicitor for the Respondent). Dated the ........ day of ..., 20 ....
To the Registrar, Supreme Court. and to:
The address for service of the respondent is .......
No. 119
CAUSE BOOK 0.60, r.2.
| Serial No. of Wirt |
Date of Issue |
Name of Defendant
(His Solicitor, if any, and Address for Service) |
Name of Plaintiff
|
Claim Amount Nature | Set off or Counter-claim Amount Nature |
Judgment
State the date, and when entered amount, other particulars and in whose favour |
Execution
State the date, form and No. of Execution and other particualrs |
Date of entry of satisfaction |
Remarks |
|
|
$ ¢
|
$ ¢
|
No. 120
ORIGINATING SUMMONS BOOK 0.60, r.2.
| Serial No. | Date of Issue | Name of Plaintiff (His Solicitor, if any, and Address for Service) | Name of Defendant (His Solicitor, if any, and Address for Service) | Nature of Order applied for | Date of Order | Order | Remarks |
No. 121
ORIGINATING MOTION BOOK 0.60, r.2.
| Serial No. | Date of Issue | Name of Applicant (His Solicitor, if any, and Address for Service) | Name of Respondent (His Solicitor, if any, and Address for Service) | Nature of Order applied for | Date of Order | Order | Remarks |
No. 122
INTERPLEADER SUMMONS BOOK 0.60, r.2.
| Serial No. | Date of Issue | At whose instance issued | His address or if applied for by Sheriff No. and particulars of Writ or Order | Names of each claimant (including an execution creditor) his Solicitor, if any, and Address for Service | Date of Order | Order | Remarks |
No. 123
SUMMONS IN CHAMBERS BOOK 0.60, r.2.
| No. | Date of Application | No. and Title of Proceedings | Name of Applicant | Nature of Application | Date of Order | Order | Remarks |
No. 124
JUDGMENT BOOK 0.60, r.2.
(Title as in action)
Entered the ...... day of ......., 20 ........, in
Volume ... Page.
...... Registrar
NO. 125
WRITS OF EXECUTION BOOK 0.60, r.2.
|
1
Serial No. |
2
Date of Issue |
3
Nature of Writ |
4
Number of Proceedings |
5
Name of Plaintiff and Address |
6
Name of Defendant and Address |
7
Amount |
8
Property or Premises to be delivered |
9
Date Received by Sheriff |
|
10
|
11
|
12
|
13
|
14
|
15
|
16
|
17
|
NO. 126
DISTRESS BOOK 0.60, r.2.
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
|
$ ¢
|
$ ¢
|
|
11
|
12
|
13
|
14
|
15
|
16
|
17
|
18
|
|
$ ¢
|
NO. 127
PROBATE BOOK 0.60, r.2.
|
Serial No. |
Date filed
|
Whether petition or citation under section 4
|
Name and residence of deceased |
Date of Death
|
Petitioner, his residence Solicitor, if any, and capactiy in which he applies for grant |
Date of hearing |
Caveats filed
|
Value of estate |
Grant
|
Date of Grant |
Names of Grantees |
Remarks
|
NO. 128
CAVEAT BOOK 0.60, r.2.
|
Date filed
|
Where filed
|
No. of Peition |
Name of Deceased |
Name of Petitioner and his Solicitor (if any)
|
Name of Caveator, his Solicitor if any, and Address for Services |
Nature of Caveat |
When notices issued
|
No. and date of citation
|
Remarks
|
NO. 129
SERVICE BOOK 0.60, r.2.
| Date | Time handed to Process Server | No. and Nature of Process | Date of hearing | Where to be served | Served or unsaved | Initial of Process Server | Time retuned to clerk | Initial of clerk | Remarks |
NO. 130
ADOPTION BOOK 0.60, r.2.
| Serial No. | Date of Petition |
Name of Petitioners (their Solicitors, if any) |
Date of Order | Order | Remarks |
No. 131
DIRECTIONS TO TREASURY 0.60, r.2.
(Title as in action)
(a) For Payment In.
Ledger Account (If the same as the cause state “as above”).
The Treasury is hereby directed to receive (the sum of $....) (paid in on behalf of the defendant .... in satisfaction of the claim of the plaintiff ..... or the funds and securities specified in the schedule hereto or as may be).
Dated the ........ day of ..., 20 ....
.... Registrar
Note — Where funds are lodged in Court not being moneys paid in under the provisions of Order 14 or as security for costs or in satisfaction of a judgment or order, but are to be lodged under an order comprising funds of a various natures and directed lodgment by one or more persons, a single direction may be issued, and the particulars stated in a schedule to the direction,e.g.:
SCHEDULE
|
Particular of fund to be lodged
|
Person to make the lodgment
|
Amounts
|
|
|
|
|
Securities
|
Money
|
|
|
|
$
|
$
|
(b) For Payments Out.
Ledger Account (If the same as the cause state “as above”).
The Treasury is hereby directed to pay to (insert the name of person to be paid and whether as plaintiff or defendant or as solicitor to plaintiff or defendant) the sum of dollars
(in words at length) ..... $...... lodged in Court in the above cause or matter on behalf of the defendant ........ in satisfaction of the claim of the plaintiff ...... (or as may be).
Dated the ........ day of ..., 20 ....
.... Registrar
(c) Certificate of Ascertained Sums.
Ledger Account (if the same as the cause state “as above”).
I hereby certify that under Order dated the ...... day of ........,
20 ....., the sums stated in the schedule subjoined hereto amounting in the whole to
$ ...... have been ascertained to be the sums payable under the said Order to the persons respectively named in respect of (state in what character paid).
Dated the ........ day of ..., 20 ....
.... Registrar
SCHEDULE
|
Name
|
Address (if ascertained)
|
Amount to be paid
|
|
|
|
|
No. 132
INDEX OF WILLS 0.60, r.2.
|
Name of Testator
|
Date of Will
|
No. of Petition
|
Volume and page of Register
|
Remarks
|
No. 133
REGISTRER OF APPEALS TO THE COURT OF APPEAL 0.60, r.2.
| No. of Appeal | High Court Suit No. | Date of Decision | Name of Judge | Date of filing Notice of Appeal | Date of filing Record of Appeal | Appellant | Respondent | Particulars of Appeal against decision | Decision |
No. 134
REGISTRER OF APPEALS FROM SUBORDIATE COURTS 0.60, r.2.
| No. of Appeal | Subordinate Court Summons No. | Date of Decision | Name of Judge | Date of filing Notice of Appeal | Date of filing Record of Appeal | Appellant | Respondent | Particulars of Appeal against decision | Decision |
No. 135
ORDER FOR SUBSTITUTED SERVICE 0.62, r.5.
(Title as in action)
Upon the application of ..... the plaintiff in this action and upon reading
the affidavit of ..... filed the ....... day of ......,
20 ......, and upon hearing ....
It is ordered that service of a copy of this order, and a copy of the writ of summons in this action by sending the same by a prepaid registered post letter addressed to the defendant
..... at ... (or such other substituted service as may be ordered) shall be good and sufficient service of the writ.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 136
AFFIDAVIT ON APPLICATION FOR SUBSTITUTED SERVICE 0.62, r.5.
(Title as in action)
I, ........ of ... (the above-named plaintiff, or solicitor for the above-named plaintiff, or clerk to the plaintiff’s solicitor, or clerk to the plaintiff, or as may be) do make oath (or affirm) and say as follows:
1. Having been directed by ...... to serve the above-named defendant ... with a copy of the writ of summons in this action which appeared to me to have been regularly issued out of and under the seal of the High Court by the above-named plaintiff against the above-named defendant, and dated the ..... day of ..., 20......., which said writ and copy were subscribed and indorsed in the manner and form prescribed by the Rules of Court,
1980, and a true copy of which said writ is now produced and shown to me, marked
..., I did on ........ day the .... day
of ...., 20 ......, attend for the purpose of serving a copy of the said writ at
(describe efforts to effect service).
I have made all reasonable efforts and used all due means in my power to serve the said writ, but I have not been able to do so.
(Here give a short summary of the efforts made).
Sworn (or affirm) as in Form 78.
Note — The affidavit should also specify the method of substituted service asked for, and state that if such service is ordered it will probably be effectual in bringing the writ (or as may be) to the knowledge of the defendant.If the defendant is evading service the affidavit should so state.
No. 137
AFFIDAVITS OF SERVICE 0.63, r.9.
(Title as in action)
(a) Affidavit of Personal Service of writ of summons or other process on a person.
I, ....... of ....... do make oath(or affirm) and say as follows:
1. I did on ... the ........ day of ..., 20 ..., at (state where) personally serve (the above-named defendant) (or one of the above-named defendants) (or a partner in the above-named defendant firm of ..... & Co.) (or the person(the insertion of the name is not essential) having at the time of such service the control or management of the said partnership business) (or as may be) with a true copy of the writ of summons (or as may be) in this action which appeared to me to have been regularly issued out of the Registry of the High Court against (the above-named defendant) (or the above-named defendants) (or as may be) at the suit of (the above-named plaintiff) (or plaintiffs) (or as may be) and which was dated the ... day of ......, 20 ......
2. The defendant (or as may be) (is known to me) (or was pointed out to me by .......)
(or admitted to me that he was ....).
3. At the time of the said service the said writ (or as may be) and the copy thereof were subscribed (and indorsed) in the manner and form prescribed by the Rules of the High Court.
4. I did on the ...... day of ....... indorse on the said writ the day of the month and the week of the said service on the said defendant.
Sworn (or affirmed) as in Form 78.
(b) Affidavit of Personal Service of writ of summons or other process on a body corporate.
I, ........ of ...... do make oath(or affirm) and say as follows:
1. I did on ....... the ... day of ......., 20 ....... date of posting), serve ..... the above-named defendant (or as may be) with a true copy of the writ of summons (or as may be) in this action, which appeared to me to have been regularly issued out of the Registry of the High Court against the abovenamed defendant (or as may be) at the suit of the above-named plaintiff (or as may be), and which was dated the ..... day of ........ , 20 ......., by leaving the same at(place of service) (or sending the same on the day of ........,
20 ......., by prepaid registered post addressed to the above-named defendant (or as may be) at (address), which is the registered office of the said defendant (or as may be) (and as in paragraph (3), etc., of (a) above).
Note — This form may be used with necessary alterations for a foreign company registered in Brunei Darussalam under the Companies Act, but the affidavit must state that the company is a foreign company registered pursuant to the said Act and that service is being effected on the person authorised by registration in Brunei Darussalam to accept service on behalf of the defendant under the said Act.
(c) Affidavit of Substituted Service by Post of writ of Summons or other Process.
I, ..... of ... do make oath (or affirm) and say as follows:
1. I did on ....... the ...... day of ........, 20 ......, serve the above-named defendant (or as may be) with a true copy of the writ of summons (or as may be) in this action and a true copy of the order for substituted service, by posting at the
Post Office at ... in a prepaid letter or envelope (or 2 prepaid letters or envelopes each) containing a true copy of the said writ (or as may be) and of the
said order, and addressed (respectively) to the defendant (or as may be) at .....
(and at ....... ) pursuant to the said order.
2. That the said writ of summons (or as may be) appeared to me to have been regularly issued out of the Registry of the High Court against the above-named defendant (or as may
be) and was dated the .... day of ......, 20 ....... (and as in paragraph (4), etc.,of (a) above).
(d) Affidavit of Service of Notice of Writ of Summons byAdvertisement.
I,.... of .... do make oath or affirm and say as follows:
1. I did on ........ the ...... day of ....., 20 .....,serve the above-named defendant with notice of the writ of summons in this action and of the order for service by advertisement dated the ....... day of ...,
20 ....., by causing to be inserted once in (names of paper or papers as ordered) and advertisement in the words following namely:
(Title, Reference Number etc.) The above-named defendant,
(As in (e) below)
2. The advertisement aforesaid appeared in the (name of paper) on the .... day of ...., 20....., (and in the (name of paper)) on the ........
day of ......, 20 ........
Sworn (or affirmed) as in Form 78.
(e) Form of Advertisement.
To .... of (or late of) ........ Take notice that an action has been commenced against you in the High Court in Suit No. .... of 20 ........, by ...... of ...., in which the plaintiff’s claim is for (state very shortly the nature of claim and the amount (if any) claimed in the
indorsement on the writ).
And that it has been ordered that service of the writ in the said action on you be effected by this advertisement. If you desire to defend the said action you must within ........ days from the publication of this advertisement, inclusive of the day of such publication, enter an appearance at the Registry of the High Court. In default of such appearance judgment may be entered against you.
Dated the ........ day of ..., 20 ....
........
Solicitor for the ......
(f) Affidavit of Personal Service of Judgment or Order.
I, ...... of ........ do make oath (or affirm) and say as follows):
l. I did on ... the ....... day of ....., 20 ..., at ........ personally serve the above-named defendant (or plaintiff) with a true copy of the order (or
judgment) dated .... in this action, now produced and shown to me
marked ......., (or recite operative part of order or judgment).
2. The copy of the said order (or judgment) so served as aforesaid had indorsed thereon when so served the words following, that is to say: “If you the within named neglect to obey this order (or judgment) by the time therein limited you will be liable to process of execution for the purpose of compelling you to obey the same order (or judgment)”.
Sworn (or affirmed) as in Form 78.
No. 138
NOTICE OF CHANGE OF SOLICITOR 0.64, r.1. 0.64, r.2.
(Title as in action)
To the Registrar,
Take notice that (name of new solicitor), of ......, has (or have) been appointed to act as the solicitor of the above-named (“plaintiff” or“defendant” (if for one or more of several defendants, naming the defendant or defendants)) in this action, in the place of (name of original solicitor).
The address for service of the above-named (new solicitor) is ...
.........
Dated the ........ day of ..., 20 ....
.... Solicitor
To the above-named defendant (or plaintiff) or his (or their) solicitor and to (naming the former solicitor of the plaintiff (or defendant)).
No. 139
NOTICE OF INTENTION OF PARTY TO ACT IN PERSON, IN PLACE OF SOLICITOR 0.64, r.3.
(Title as in action)
To the Registrar,
Take notice that I, ..... the above-named plaintiff (or defendant) intend to act in person in this action in the place of ...... and that my address for service is ........
Dated the ........ day of ..., 20 ....
.... Party
To the above-named defendant (or plaintiff) and to (naming the former solicitor of the plaintiff (or defendant)).
No. 140
SUMMONS TO REMOVE SOLICITOR FROM RECORD 0.64, r.4.
(Title as in action)
Let all parties concerned attend before the Judge (or Registrar) in Chambers on ..... the ..... day of ......, 20 ........, at ..... m., on the hearing of an application on the part of (name of party applying) the above-named plaintiff
(or defendant) for an order declaring that (name of solicitor who has ceased to act) of (address) ...... has ceased to be the solicitor acting for you the above-named plaintiff (or defendant) in this action (or matter).
The costs of this application to be ......
Dated the ........ day of ..., 20 ....
Entered No. ..... of 20 ..... Clerk
(Seal)
.... Registrar
This summons is taken out by ..... of solicitor for
the ...... in person.
To (named of party whose solicitor has ceased to act).
No. 141
ORDER REMOVING SOLICITOR FROM THE RECORD 0.64, r.4.
(Title as in action)
Mr. ........ Solicitor for ...... in this action (or matter) having(died, become bankrupt or any other reason for removal) and the said (named of party formerly represented by solicitor) having failed to give notice of change of solicitor
or notice of intention to act in person and notice of the ....... application having been duly served upon the said (name of party formerly represented by solicitor).
Upon the application of ....... and upon reading the affidavit of ....... filed the .... day of ....,20 ...., and upon reading .......
It is ordered that the said ..... ceases to be the solicitor acting for the said (name of party formerly represented by solicitor) in this action (for matter).
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 142
SUMMONS FOR WITHDRAWAL OF SOLICITOR 0.64, r.5.
(Title as in action)
Let all parties concerned attend before the Judge (or Registrar) in Chambers on ..... the ....... day of ...., 20 ....., at ........ m., on the hearing of an application on the part of (name of solicitor withdrawing), the solicitor for the said (name of party represented by solicitor) the above-named plaintiff (or defendant) for an order declaring that the said (name of solicitor withdrawing) has ceased to be the solicitor acting for the said plaintiff (or defendant) in the above action (or matter) and that the costs of this application be ...
Dated the ........ day of ..., 20 .... Entered No. ..... of 20 .....
Clerk
(Seal)
.... Registrar
This summons is taken out by ..... of ..... solicitor for the ......
To .......
No. 143
ORDER FOR WITHDRAWAL OF SOLICITOR 0.64, r.5.
(Title as in action)
Mr. ....... theSolicitor for ........ a
Plaintiff (or a defendant) in this action (or matter) having duly served notice of the application
on the said ....
Upon the application of ....... and upon reading the affidavit of ....... filed the .... day of .... 20 ........, and upon
hearing .....
It is ordered that upon compliance with the requirements of Order 64,rule 5(1) of the Rules of the High Court, the said .... ceases to be the solicitor acting for the said in this action (or matter).
Dated the ........ day of ..., 20 ....
.... Registrar
No. 144
CERTIPICATE OF SERVICE OF POREIGN PROCESS 0.65, r.2.
I, ....,Registrar of the High Court of Brunei Darussalam hereby certify that the documents annexed hereto are as follows:
(1) The process received with a Request for Service; and
(2) A copy of the evidence of service upon the person named in the process.
And I certify that such service so proved, and the proof thereof, are such as are required by the law and practice of the High Court regulating the service of legal process in Brunei Darussalam, and the proof thereof.
And I certify that the cost of effecting such service, as duly certified by me amounts to the sum of $ .......
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 145
ORDER FOR REGISTRATION OF FOREIGN JUDGMENT 0.67, r.5.
IN THE HIGH COURT OF BRUNEI DARUSSALAM
O.S. No. .... of 20 .......
Between
........Judgment Creditor, and
..........Judgment Debtor,
In the matter of the (state the relevant Ordinance).
And the matter of a judgment of the (describe the Court) obtained in (described the
proceedings) and dated the .... day of ........, 20 ........
Upon the application of ... the judgment creditor in this action and upon reading the affidavit of ..... filed the ....... day of .....,
20 ....., (and upon the judgment creditor giving security in the sum of$ ...... by payment into Court, or bond to the satisfaction of the Registrar).
It is ordered that the judgment dated the ... day of .... 20 ......, of the (describe the foreign Court) whereby it was adjudged that the above-named (name of
judgment creditor) of ...... do recover against the above-named (name of judgment debtor) of ...... (amount due under the judgment) which is equivalent in Dollars
to $ ...... for debt and $..... for costs (or as may be) be registered as a judgment of the High Court pursuant to the ordinance.
It is further ordered that the above-named (name of judgment debtor) be at liberty to apply
apply to set aside the said registration within ... days after service upon him
(within the jurisdiction) (or name of foreign country if to be served abroad) of notice of such registration pursuant to rule 7 of Order 67 if he has grounds for so doing, and execution upon the said judgment will not issue until after the expiration of that period or any extension of the period granted by theCourt; or if an application be made to set aside the registration until such application has been disposed of.
It is ordered that the costs of this application be .....
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 146
CERTIFICATE UNDER THE RECIPROCAL ENFORCEMENT OF JUDGMENT ACT 0.67, r.13.
(Title as in action)
I, ..... Registrar of the High Court of BruneiDarussalam hereby certify that the judgment obtained by ...... plaintiff (or defendant) against ........
defendant (or plaintiff) in this action on the ....... day of ......, 20 .....,
or payment of the sum of $ .... and $...... costs carries interest at the rate of .... % per annum calculated on the said sum of $ ....... and $ ..... from the date of the said judgment until payment.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 147
CERTIFICATE UNDER THE RECIPROCAL ENFORCEMENT OF JUDGMENTS ACT 0.67, r.13.
(Title as in action)
I, ....... registrar of the High Court ofBrunei Darussalam hereby certify that the writ of summons (or as may be), a copy of which is hereunto annexed, was issued out of the registry of theHigh Court on the ....... day of ......,
20 ....., by ........ the above-named plaintiff against .... the above-named defendant, for payment of the sum of $.... in respect of (state shortly nature of claim or ground of action).
That the said writ was duly served on the ..... day of .....,
20 ..., upon the said defendant (state mode of service)(that the said defendant duly appeared to the said writ on the .... day of ........, 20....... ).
That the said plaintiff obtained judgment against the said defendant for payment of the sum of $ ....... in respect of(state shortly nature of claim or terms of judgment), together with the sum of $... for costs, which judgment was obtained (state grounds on which judgment was based).
That (no) objection has been made to the jurisdiction of the Court (on the grounds that ........ ).
That the following pleadings in the action consisted of:
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 148
(There is no No. 148)
No. 149
(There is no No. 149)
No. 150
(There is no No. 150)
No. 151
(There is no No. 151)
No. 152
(There is no No. 152)
No. 153
(There is no No. 153)
No. 154
(There is no No. 154)
No. 155
WRIT OF SUMMONS IN ACTION IN REM 0.70, r.2.
IN THE HIGH COURT OF BRUNEI DARUSSALAM Admiralty in Rem No. ..... of 20 ........ Admiralty action in rem against:
(The ship ........ or as may be describing the res)
Between
(The owners of the ship ........ or as may be)
...........Plaintiffs,
and
(The owners of the ship ..... or as may be)
........Defendants THE CHIEF JUSTICE OF BRUNEI DARUSSALAM IN THE NAME OF HIS MAJESTY THESULTAN AND YANG DI-PERTUAN
To: The (owners of and other) persons interested in the ship of the port of .......
(or cargo etc. as may be).
We command you that within eight days after the service of this writ, inclusive of the day of service, you do cause an appearance to be entered for you in an action at the suit of ..., and take notice that in default of your so doing the plaintiffs may proceed therein, and judgment may be given in your absence, and if the resdescribed in this writ is then under arrest of the Court it may be sold by order of the Court.
WITNESS ... Registrar of the HighCourt at ......
the .... day of ......, 20 ........
..... Plaintiff’sSolicitors
....... Registrar
High Court, .....
Memorandum to be subscribed on the Writ
This writ may not be served more than twelve calendar months after the above date unless renewed by order of Court.
The defendants may appear hereto by entering appearances either personally or by
Solicitor at the Registry of the High Court.
The defendants appearing personally may, if they desire, enter their appearances by post, and the appropriate forms may be obtained by sending cash or a cheque for $ ........
with an addressed envelope to the Registrar, High Court ....
Indorsement to be made on writ before issue
Indorsement of Claim
The plaintiffs’ claim is for .........
(If the Plaintiffs sue, or the defendants are sued, in a representative capacity, this must be stated in the indorsement of claim).
Indorsement as to solicitor and address
This writ is issued by ..... of .......
solicitor for the said plaintiffs whose address is .......
(or where the plaintiffs sue in person. This writ was issued by the said plaintiffs who resides at ..... and is (state occupation) and (if the plaintiffs do not reside within the jurisdiction) whose address for service is ...).
Indorsement as to service
This writ was served by ...... by way of personal service (or as may be) (state manner of service or in accordance with the terms of an order for substituted service) on the defendant(who is known to me) (or who was pointed out to me
by .... ) or who admitted to me that he was .... ) at (place)
on ... the ..... day of ...., 20 .... Indorsed the ..... day of ........, 20......
... Process-Server
No. 156
WARRANT OF ARREST 0.70, r.4.
(Title as in action)
THE CHIEF JUSTICE OF BRUNEI DARUSSALAM IN THE NAME OF HIS MAJESTY THE SULTANAND YANG DI-PERTUAN
To the Sheriff,
We hereby command you to arrest the ship ........ of the port of ...... (and the cargo now or lately laden therein, together with the freight due for the transportation thereof) or (and the freight due for the transportation of the cargo now or lately laden therein) and to keep the same under safe arrest until you shall receive further orders from us.
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
The plaintiffs’ claim is for (copy from the writ).
Taken out by ..... solicitors for the ... Sheriff’s indorsement as to service.
No. 157
PRAECIPE FOR WARRANT OF ARREST 0.70, r.4.
(Title as in action)
We .... of ......
...... solicitors for the plaintiffs request a warrant to arrest (description of property giving name, if a ship).
Dated the ........ day of ..., 20 ....
.... Solicitors for the plaintiffs No. 158
PRAECIPE FOR CAVEAT AGAINST ARREST 0.70, r.5.
(Description of property giving name, if a ship)
We, ........ of .......
...... solicitors for ...... of ...... request a caveat against the arrest of (description of property giving name, if a ship) and hereby undertake to enter an appearance in any action that may be begun in the High Court against the said ..... and, within three days after receiving notice that such an action has
been begun, to give bail in the action in a sum not exceeding ..... dollars or to pay that sum into Court. We consent that the writ of summons and any other document in the action may be left for us at ...
Dated the ........ day of ..., 20 ....
........ Solicitor for the ......
No. 159
PRAECIPE FOR SERVICE OF WRIT IN REM
BY SHERIFF 0.70, r.7.
(Title as in action)
We, ... of ...... solicitors for the plaintiffs
request that the writ of summons left herewith be duly served on ....
Dated the ........ day of ..., 20 ....
.... Solicitors for the plaintiffs
No. 160
RELEASE 0.70, r.12.
(Title as in action)
THE CHIEF JUSTICE OF BRUNEI DARUSSALAM IN THE NAME OF HIS MAJESTY THE SULTANAND YANG DI-PERTUAN
To the Sheriff,
Whereas in this action we did command you to arrest the ... and to keep the same under safe arrest until you should receive further orders from us. Now we do hereby
command you to release the said ....... from the arrest effected by virtue of our warrant in this action.
Dated the ........ day of ..., 20 ....
Taken out by ......... solicitors for the ..........Sheriff’s indorsement
On ....... the ..... day of ......, 20........,
the ...... was released from arrest pursuant to this instrument.
.... Sheriff
No. 161
PRAECIPE FOR ISSUE OF RELEASE 0.70, r.12.
(Title as in action)
We, ...... of ... solicitors for the plaintiffs (or defendants) in this action against (description of property giving name, if a ship), now under arrest by virtue of a warrant issued out of the High Court
Registry, request the issue of a release with respect to the said ........ Dated the ........ day of ..., 20....
........
Solicitor for the ......
No. 162
PRAECIPE FOR CAVEAT AGAINST RELEASE AND PAYMENT 0.70, r.13.
(Title as in action)
We, ..... of .... solicitors for ...... of ....... request a caveat against the issue of a release with respect to (description of property giving name, if a ship) now under arrest and, should the said property be sold by order of theCourt, a caveat against payment out of Court of the proceeds of sale.
Dated the ........ day of ..., 20 ....
........
Solicitor for the ......
No. 163
PRAECIPE FOR WITHDRAWAL OF CAVEAT 0.70, r.14.
(Title as in action)
We, .... of ..... solicitors for ....... of ......
request that the caveat (state nature of caveat) entered on the ....
day of ......, 20 ......., on behalf of ...... be withdrawn.
Dated the ........ day of ..., 20 ....
........
Solicitor for the ......
No. 164
BAIL BOND 0.70, r.15.
(Title as in action)
Whereas this Admiralty action in rem against the above-mentioned property is pending in the
High Court and the parties to the said action are the above-mentioned plaintiffs and
defendants:
Now, therefore, we ........ of .... and ....... hereby jointly and severally submit ourselves to the jurisdiction of the said Court and consent that if they, the above-mentioned defendants (or plaintiffs, in the case of a counter-claim) do not pay what may be adjudged against them in this action, with costs, or do not pay any sum due to be paid by them in consequence of any admission of liability therein or under any agreement by which this action is settled before judgment and which is filed in the said Court, execution may issue against us, our executors or administrators, movable property, for the amount unpaid or an amount of dollars whichever is the less.
........
Solicitor for the ...... This bail bond was signed by the said ........ and ......, the sureties, the ..... day of ...., 20 .....
Before me.
....... Commissioner forOaths.
No. 165
PRAECIPE FOR COMMISSION FOR APPRAISEMENT AND SALE 0.70, r.22.
(Title as in action)
We, ....... of ........ solicitors for the plaintiffs (or defendants) request a commission for the appraisement and sale of (description of property giving name, if a ship) which was ordered by the Court on the ... day of ...., 20 ........
Dated the ........ day of ..., 20 ....
........ Solicitor for the ......
No. 166
COMMISSION FOR APPRAISEMENT AND SALE 0.70, r.22.
(Title as in action)
THE CHIEF JUSTICE OF BRUNEI DARUSSALAM, IN THE NAME OF HIS MAJESTY THE SULTANAND YANG DI-PERTUAN
To the Sheriff,
Whereas in this action the Court has ordered (description of property giving name, if a ship) to be appraised and sold.
We hereby authorise and command you to choose one or more experienced persons and to swear him or them to appraise the said ....... according to the true value thereof, and such value having been certified in writing by him or them to cause the said ........ to be sold by(private treaty or public auction) for the highest price that can be obtained for it, but not for less than the appraised value unless the Court on your application allows it to be sold for less.
And we further command you, immediately upon the sale being completed, to pay the proceeds thereof into Court and to file the certificate of appraisement signed by you and the appraiser or appraisers, and an account of the sale signed by you, together with that
commission. Witness ....... Registrar of the HighCourt the ....... day
of ....., 20 ........
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
Taken out by ......(solicitors for) the ......
No. 167
(There is no No. 167)
No. 168
(There is no No. 168)
No. 169
(There is no No. 169)
No. 170
(There is no No. 170)
No. 171
(There is no No. 171)
No. 172
(There is no No. 172)
No. 173
(There is no No. 173)
No. 174
(There is no No. 174)
No. 175
(There is no No. 175)
No. 176
(There is no No. 176)
No. 177
(There is no No. 177)
No. 178
(There is no No. 178)
No. 179
(There is no No. 179)
No. 180
(There is no No. 180)
No. 181
(There is no No. 181)
No. 182
(There is no No. 182)
No. 183
(There is no No. 183)
No. 184
(There is no No. 184)
No. 185
(There is no No. 185)
No. 186
(There is no No. 186)
No. 187
(There is no No. 187)
No. 188
(There is no No. 188)
No. 189
CONSENT OF NEXT FRIEND OR GUARDIAN
AD LITEM OF PERSON UNDER DISABILITY 0.73, r.3.
(Title as in action)
I, ...... of ....... consent to be next friend (or guardian ad litem ) of the above-named plaintiff (or defendant), an infant (or a patient) in this action, and I authorise ......
of .... Advocates and Solicitors, to act on my behalf.
Dated the ........ day of ..., 20 .... Signed by the said ......, the .....
day of ....., 20 ..., in the presence of:
... Solicitor (orCommissioner for Oaths)
No. 190
CERTIFICATE BY SOLICITOR FOR PERSON UNDER DISABILITY 0.73, r.3.
(Title as in action)
I, ....... of ...... solicitor for the next friend (or guardian ad litem ) hereby certify that I know (or believe) that
(name of infant) (or name of patient) is (an infant) (or a patient) (give the grounds of knowledge or belief) and that the abovenamed (name of next friend)(or name of guardian ad litem ) has no interest in the cause (or matter) in question adverse to that of the infant (or the patient).
Dated the ........ day of ..., 20 ....
........ Solicitor for the ......
No. 191
ORDER FOR PARTICULARS (PARTNERSHIP) 0.74, r.2.
(Title as in action)
Upon the application of ... and upon reading the affidavit of .... filed the ........
day of ...., 20..., and upon hearing ...It is ordered that the ........ furnish the ..... with a statement in writing, vertified by affidavit, setting forth the names of the person constituting the members or co-partners of their firm, pursuant to the Rules of the High Court, Order 77, rule 2, and that the costs of this application be .....
Dated the ........ day of ..., 20 ....
(Seal)
.... Registrar
No. 192
NOTICE OF SERVICE ON MANAGER OF PARTNERSHIP 0.74, r.3.
(Title as in action)
Take notice that the writ of summons is served on you as the person having the control or
management of the partnership business of the above-named defendant firm of .....
(and also as partner in the said firm (a) ).
.... Solicitor for thePlaintiff
Note — (a) If the person served with the writ of summons is served in the two capacities of manager and partner, the clause should be left standing. If he is served as manager only, it should be struck out.
No. 193
AUTHORITY TO COMPANY TO REGISTER TRANSFER 0.84, r.4.
(Title as in action)
To the ........ Co. Ltd.,
Brunei Darussalam.
Please register transfer of share Nos. ... from .....
to ... the Treasury.
Dated the ........ day of ..., 20 ....
... Accountant General
CERTIFICATE OF TRANSFER
The above-mentioned shares have this day been transferred as authorised.
Dated the ........ day of ..., 20 ....
.......
Secretary of the ... Co.Ltd.
No. 194
STATUTORY DECLARATION 0.84, r.11.
(Title as in action)
Ledger Account (if the same as the cause state “as above”). I(name and address of applicant) solemnly and sincerely declare that I am the(degree of relationship) and next or one of the next-of-kin of (name of deceased) and that I am entitled to take out administration to his estate
and to receive the sum of $ ....... directed to be paid to him by the order date the ... day of ....., 20 ...., and I f urther declare that the total value of the assets of the deceased including the above sum does not exceed $10,000 and I certify that the funeral and other testamentary expenses of the deceased have been paid. And I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the StatutoryDeclarations Act (Chapter 12).
... Applicant
Declared before me this ...... day of ...., 20 .....
(Name and designation of officer administering oath).
No. 195
ACCOUNT BOOK
RECEIPTS 0.84, r.14.
|
Date
|
From whom received
|
No of action or proceedings
|
To whose credit paid
|
No. of Receipt
|
Amount received
|
Amount banked
|
Date of payment
|
PAYMENT
|
Date
|
To whom paid
|
No of action or proceedings
|
No. of cheque
|
Amound paid in cash
|
Amount paid by cheque
|
Page and Book No. of Account Bank (Receipts)
|
APPENDIX B
|
No. Items |
Fees
|
Document on which the stamp is to be affixed and remarks |
|
COMMENCEMENT OF A CAUSE OR MATTER |
|
|
|
1. On sealing a writ of summons for the commencement of an action |
200.00 |
Praecipe |
|
2. On sealing an originating summons |
160.00 |
Praecipe |
|
3. On sealing a concurrent or renewed writ of summons or a concurrent originating summons |
20.00 |
Praecipe |
|
4. On sealing an amended writ of summons or an amended originating summons |
20.00 |
Praecipe |
|
5. On presenting an originating petition where no other fee is specifically provided |
160.00 |
Praecipe |
|
6. On sealing on originating notice of motion |
160.00 |
Praecipe |
|
7. On amending an originating petition or an originating notice of motion on which Fee no. 6 has been paid or is payable |
20.00 |
Praecipe |
|
8. On any other form of commencement of a Cause or matter where no fee is specifically provided |
160.00 |
Praecipe |
|
9. On marking the renewal of any writ of summons |
20.00 |
Praecipe |
|
APPEARANCE |
|
|
|
10. On entering an appearance for each person |
20.00 |
Praecipe |
|
11. On amending the same |
20.00 |
Praecipe |
|
INTERLOCUTORY APPLICATIONS |
|
|
|
12. On sealing a summons |
40.00 |
Praecipe |
|
13. On sealing a notice for attendance at Cham- bers on an originating summons to which an appearance is required to be entered |
20.00 |
Praecipe |
|
14. On filing a notice of motion (except a motion for judgment) or a case on motion where no motion is filed |
80.00 |
Praecipe |
|
15. On sealing a notice under order 16 rule 1, 8 or 9 |
80.00 |
Praecipe |
|
16. On bespeaking a request for the service of process or notice thereof out of the jurisdiction |
80.00 |
Praecipe |
|
17. On sealing a commission or letter of request for the examination of witnesses abroad |
80.00 |
Praecipe |
|
18. On every appointment for the examination of a witness by an officer of the Court |
40.00 |
Praecipe |
|
19. On every witness sworn and examined by an officer of the Court, for each hour or part of an hour |
80.00 |
Praecipe |
|
ENTERING OR SETTING DOWN FOR TRIAL OR HEARING IN COURT |
|
|
|
20. On setting down a cause or matter including a motion, for hearing or judgment or on a point of law |
200.00 |
Praecipe |
|
21. On entering or setting down any cause or matter for further consideration |
120.00 |
Praecipe |
|
WRITS |
|
|
|
22. On sealing a writ of subpoena ad testificandum or duces tecum, other than an instanter subpoena, for each witness |
8.00 |
Praecipe |
|
23. On sealing an instanter supoena for each witness |
24.00 |
Praecipe |
|
Note — An instanter subpoena is one issue less than 3 days before the trial of an action. |
|
|
|
24. On sealing every writ of execution, order of committal, arrest or attachment of property |
40.00 |
Praecipe |
|
25. No item. |
|
|
|
JUDGMENT AND ORDERS |
|
|
|
26. On entering or sealing any order made in Chambers |
80.00 |
Praecipe |
|
27. On entering or sealing a judgment or order given, directed or made in the trial hearing or further consideration or a cause or matter in Court |
120.00 |
Praecipe |
|
28. On entering or sealing a judgment pursuant to an order or certificate made in Chambers |
40.00 |
Praecipe |
|
29. On entering or sealing any other judgment or order where no other fee is specifically provided for |
80.00 |
Praecipe |
|
MISCELLANEOUS |
|
|
|
30. On presenting a petition of course 80.00 Praecipe |
|
|
|
31. On adjourning from Chambers into Court — |
|
|
|
|
|
|
|
(a) an originating summons |
160.00 |
Praecipe |
|
|
|
|
|
(b) any other summons or matter |
80.00 |
Praecipe |
|
32. On taking an account of moneys received by a receiver, committee or guardian, consignee, bailee, manager, provisional official or voluntary liquidator, or of an executor, administrator or trustee, agent, solicitor, mortgagee, co-tenant, co-partner, execution creditor, or other person liable to account, when the amount found to have been received without deducting any payment shall not exceed $1,000 |
40.00 |
Praecipe |
|
33. Where such amount shall exceed $1,000 for every $500 or fraction of $500 Note — In the case of any such receiver, committee, guardian, consignee, bailee, execution creditor, the fees shall upon payment be allowed in the account unless the Court shall otherwise direct, and in the case of taking the accounts of such other accounting parties the fees shall be paid by the party having the conduct of the order under which such account is taken as part of his costs in the cause or matter, unless the Court shall otherwise direct and in such case shall be taken upon the certificate of the result of any such account, but the fees shall be due and payable although no certificate is required on the account taken or such part thereof as may be taken, and the solicitor or party suing in person shall in such case cause the proper stamps, the amount thereof to be fixed by the Registrar, to be impressed on the account. |
4.00 |
Praecipe |
|
34. On signing, settling or approving an advertisement |
40.00 |
Praecipe |
|
|
|
|
|
35. On settling a lodgment schedule for payment into court of purchase or other money |
20.00 Praecipe |
|
|
|
|
|
|
36. On settling — |
|
|
|
|
|
|
|
(a) a deed or other instrument or |
|
|
|
|
|
|
|
(b) particulars and conditions of sale, whether together or separately |
80.00 |
Praecipe |
|
37. On fixing the reserve on a sale out of Court |
80.00 |
Praecipe |
|
|
|
|
|
38. On every reference to an officer of the Court |
120.00 |
Praecipe |
|
|
|
|
|
39. On sealing a notice of appeal from a Registrar to a Judge in Chambers |
40.00 |
Praecipe |
|
|
|
|
|
PROBATE |
|
|
|
|
|
|
|
40. On filing petition for Probate or Letters of Administration, or for resealing the same, including the fees for taking and filing the affidavit, verifying the petition, and on answering and settling down the petition for hearing in Court |
160.00 |
Praecipe |
|
|
|
|
|
41. On extracting Grant of Probate or Letters of Administration or for resealing the same — Where the net value of the estate assessed by the Collector of Estate Duty does not exceed — |
|
|
|
10,000.00 |
20.00 |
Praecipe |
|
20,000.00 |
40.00 |
|
|
30,000.00 |
60.00 |
|
|
40,000.00 |
80.00 |
|
|
50,000.00 |
100.00 |
|
|
60,000.00 |
120.00 |
|
|
70,000.00 |
140.00 |
|
|
80,000.00 |
160.00 |
|
|
90,000.00 |
180.00 |
|
|
100,000.00 |
200.00 |
|
|
110,000.00 |
220.00 |
|
|
|
|
|
|
120,000.00 |
240.00 |
|
|
130,000.00 |
260.00 |
|
|
140,000.00 |
280.00 |
|
|
150,000.00 |
300.00 |
|
|
160,000.00 |
320.00 |
|
|
170,000.00 |
340.00 |
|
|
180,000.00 |
360.00 |
|
|
190,000.00 |
380.00 |
|
|
200,000.00 |
400.00 |
|
|
300,000.00 |
500.00 |
|
|
400,000.00 |
600.00 |
|
|
500,000.00 |
700.00 |
|
|
800,000.00 |
800.00 |
|
|
1,200,000.00 |
1,000.00 |
|
|
2,000,000.00 |
1,200.00 |
|
|
On every additional $1,000,000.00 or any fractional part of $1,000,000.00 a further and additional fee of |
200.00 |
|
|
42. On engrossing a copy of a will or codicial or of any translation thereof or other document to annex to grant or for ex-emplification |
4.00 |
Praecipe plus 2.00 per folio |
|
43. If in any other language per folio of the English translation |
2.00 |
Praecipe |
|
44. On every ex-emplification of a Probate or Letters of Administration, with or without the will annexed in addition to the fees for engrossing |
40.00 |
Praecipe |
|
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|
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45. On entry of every caveat including notice to the other Registries and notice to the petitioner |
20.00 |
Praecipe |
|
46. On withdrawing a caveat including notice |
20.00 |
Praecipe |
|
47. On settling or sealing a citation where the estate exceeds $1,000. |
40.00 |
Praecipe |
|
|
|
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48. On filing — |
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ADMIRALITY |
|
|
|
(a) a consent to release |
40.00 |
Praecipe |
|
(b) a praecipe under Order 70, rules 4(3), |
|
|
|
5(1), 7(3), 12(5)(b), 13(1), 22(1) or a notice under Order 70, rules 12(2) |
40.00 |
Praecipe |
|
(c) an agreement under Order 70 rule 33 |
40.00 |
Praecipe |
|
(d) an admission of liability |
40.00 |
Praecipe |
|
(e) a request for the attendance of assessors |
40.00 |
Praecipe |
|
(f) any other document |
20.00 |
Praecipe |
|
49. (a) On entering a reference for hearing by the Registrar |
240.00 |
Praecipe |
|
(b) Such further fee for any assessor as the registrar may consider reasonable |
— |
|
|
50. On a certificate by the registrar as to a judgment or order |
40.00 |
Praecipe |
|
51. On lodging with the sheriff a warrant, release, decree, order, Commission or other instrument |
160.00 |
Praecipe |
|
52. On the appointment and swearing of appraisers including the drawing of the affidavit for the appraiser |
120.00 |
Praecipe |
|
53. On the delivery of a ship or goods to a purchaser |
160.00 |
To be deducted by Sheriff |
|
54. On the sale of a ship commission of 5% to be charged on the first $1,000 and 2½% upon all above that sum, such sum to include the auctioneer’s commission Note — Where the sale is made by private contract, only half of the commission will be payable. |
— |
To be deducted by Sheriff |
|
55. For attending the discharge of a cargo or the removal of a ship or goods for each day of . attendance |
200.00 |
To be deducted by Sheriff |
|
Note — Day means from 9 a.m. to 4 p.m. For each hour or part thereof before 9 a.m. or after 4 p.m. |
60.00 |
To be deducted by Sheriff |
|
APPEAL FROM HIGH COURT |
|
|
|
56. On filing a notice of appeal and cross appeal |
400.00 |
Praecipe |
|
57. (Deleted). |
|
|
|
58. Any interlocutory application |
80.00 |
Praecipe |
|
59. Memorandum of Appeal |
80.00 |
Praecipe |
|
60. Judgment or Order of Court of Appeal — |
|
|
|
(a) Order on any interlocutory application |
80.00 |
|
|
(b) Final order on appeal |
120.00 |
|
|
|
|
|
|
61. (Deleted). |
|
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62. (Deleted). |
|
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63. (Deleted). |
|
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|
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APPEAL FROM SUBORDINATE COURTS AND STATUTORY BODIES |
|
|
|
63A. (a) On presentation of memorandum of appeal from Subordinate Court |
40.00 |
Praecipe |
|
(b) On filing any appeal or reference from any authority or body other than a Subordinate Court, not otherwise provided for |
40.00 |
Praecipe |
|
(c) On entering or sealing an order on appeal or reference from |
|
|
|
A Subordinate’s court or any other body or authority |
20.00 |
Praecipe |
|
|
|
|
|
FILING |
|
|
|
64. On filing any document in the Registry not provided in this Appendix |
16.00 |
Praecipe |
|
65. On amending each pleading |
16.00 |
Praecipe |
|
66. On an application to search for appearance, for each defendant in respect of whom search is made including certificate of the result of such search |
16.00 |
Praecipe |
|
67. On any other search, including inspection, for each half hour or part thereof occupied 0 Praecipe |
12 0 |
|
|
68. On every certificate or report by the registrar not otherwise provided for |
40.00 |
Praecipe |
|
|
|
|
|
COPIES OF DOCUMENTS |
|
|
|
69. On making a copy or a certified copy for each folio |
4.00 |
|
|
For every second or subsequent copy if “carbon” or by duplicating process for each folio |
2.00 |
|
|
70. For examining a plain copy and marking the same as an office copy — |
|
|
|
(a) in the case of a photographic or xerox copy for each sheet |
2.00 |
Praecipe |
|
(b) in any other case for each folio |
4.00 |
Praecipe |
|
71. On an application to be allowed to copy any document filed or lodged in Court, for each document |
4.00 |
Praecipe |
|
TRANSLATIONS |
|
|
|
72. On a certified translation by an Interpreter of the Court |
8.00 |
Praecipe plus 4.00 |
|
73. On checking, correcting and certifying a translation not made by an interpreter of the Court |
8.00 |
Praecipe plus 4.00 per folio |
|
Note — On presentation of the praecipe which must be signed and dated, it must bear a stamp for at least the first folio of translation. The folios will be reckoned on the English translation when ready and the fee must be made up to the full amount before the translation can be delivered. |
|
|
|
TREASURY |
|
|
|
|
|
|
|
74. On a certificate of the amount and description of any moneys, funds or securities, including the request therefor 16.00 Praecipe |
|
|
|
75. On a transcript of an account for each opening, including the request thereof |
16.00 |
Praecipe |
|
76. (a) On paying, lodging, tranferring or deposing funds in Court |
16.00 |
Direction |
|
(b) On paying out of Court any money lodged or deposited in Court |
16.00 |
Direction |
|
77. On a request to the Treasury for information in writing respecting any moneys, funds or securities in court or any transaction in his office |
16.00 |
Request |
|
TAXATION OF COSTS |
|
|
|
78. On taxing a bill of costs — |
|
|
|
(a) where the amount allowed does not exceed $50 |
20.00 |
Praecipe |
|
(b) where the amount allowed exceeds |
|
|
|
|
|
|
|
$50 for every additional $50 allowed or fraction thereof |
8.00 |
Praecipe |
|
Provided that the registrar may in any case require the bill of costs to be stamped before taxation with the whole or part of the amount of fees which would be payable if the bill was allowed by him at the full amount thereof. |
|
|
|
79. On certificate or allocatur of the result of the taxation |
16.00 |
Praecipe |
|
Note — Where a plaintiff is entitled to a lump sum for costs under Appendix 2 the same fees shall be payable as if a bill of costs had been taxed for the amount of such lump sum, and a certificate or allocatur, had been signed. |
|
|
|
80. On the withdrawal of a bill of costs which has been lodged for taxation such fee (not exceeding the amount which would have been payable under Fee No. 78 if the bill had been allowed in full) as shall appear to the Registrar to be fair and reasonable.
|
|
|
|
COMPANIES |
|
|
|
81. On presenting a petition under one or more of the following |
300.00 |
Praecipe |
|
(a) to confirm the reduction of a share premium account; |
— |
— |
|
(b) to approve the issue of shares at a discount; |
— |
— |
|
(c) to confirm a reduction of a capital redemption reserve fund; |
— |
— |
|
(d) to confirm a reduction of reduction of capital; or |
— |
— |
|
(e) to approve a compromise or scheme of arrangement |
— |
— |
|
82. On presenting a petition under one or more of the following |
300.00 |
Praecipe |
|
(a) to cancel an alteration of objects; |
— |
— |
|
(b) to cancel any variation of the rights |
|
|
|
attached to any class of shares; |
— |
— |
|
(c) to restore a name to register of companies; |
— |
— |
|
(d) for relief by officers of a company — — |
|
|
|
83. On presenting a petition for which no fee is specifically provided |
300.00 |
Praecipe |
|
84. On a certificate as to debts |
200.00 |
Praecipe |
|
COMMISSIONS |
|
|
|
85. On sealing or issuing a Commission to take oaths or affidavits or acknowledgements in the High Court |
400.00 |
Praecipe |
|
86. Upon an application for the production of records or documents to be given the evi- dence: |
|
|
|
(a) Where the records or documents are left in Court |
16.00 |
Praecipe |
|
(b) Where an officer is required to produce the records or documents in Court |
120.00 |
Praecipe |
|
87. For the attendance of an officer of the Court as a witness for every half day or part thereof that he is necessarily absent from his office |
120.00 |
Praecipe |
|
88. On taking or re-taking an affidavit or a decla- ration in lieu of an affidavit, or a declaration or an acknowledgment for each person making the same |
8.00 |
Praecipe |
|
And in addition for each exhibit referred to therein and required to be marked |
6.00 |
Praecipe |
|
89. On each document referred to in a deposition and required to be marked |
6.00 |
Praecipe |
|
90. On taking an affidavit before an Advocate and Solicitor who is appointed as Commissioner for Oaths |
8.00 |
|
|
Note — The fees under Fee Nos. 90 and 91 shall be payable to the commis- sioner and shall be in lieu of the Court fees of $4.00 and $3.00 chargeable under Fee No. 88. |
|
|
|
91. For each exhibit referred to in an affidavit sworn before an Advocate and Solicitor who is appointed as a Commissioner for Oaths |
8.00 |
|
|
92. (a) On approving — |
|
|
|
(i) a guarantee |
40.00 |
Praecipe |
|
(ii) an undertaking in lieu of a guarantee |
20.00 |
Praecipe |
|
(b) (i) on vacating a guarantee |
40.00 |
Praecipe |
|
(ii) on discharging an undertaking in lieu of a gurantee |
20.00 |
Praecipe |
|
Provided that, when the vacating or dis- charged is unconditional, Fee No. 92(b) shall be impressed after the order has been made but before it is perfected. |
|
|
|
93. On taking a recognisance or bond, whether one or more than one recogniser of obliger, and whether entered into by all at one time or not |
80.00 |
Praecipe |
|
94. On assignment of a bond |
40.00 |
Praecipe |
|
95. On vacating a recognizance |
32.00 |
Praecipe |
|
96. (Deleted). |
|
|
|
97. On re-registering the same |
16.00 |
Praecipe |
|
98. On sealing or issuing any document, not being a judgment or order, where no other fee is prescribed by this Appendix: |
|
|
|
|
|
|
|
Provided that this fee is not payable on a writ of habeas corpus |
20.00 |
Praecipe |
|
SHERIFF’S OFFICE |
|
|
|
99. For each attempt at service on each person of any process or proceeding required to be served by the Court or Sheriff |
8.00 |
Praecipe |
|
100. And if more than 2 miles from the High Court, for every additional mile |
4.00 |
Praecipe |
|
101. For executing every writ of execution, order or committal, arrest or attachment of property |
40.00 |
Praecipe |
|
102. On marking a writ of execution for renewal |
20.00 |
Praecipe |
|
103. For releasing property seized by instruction of party issuing the writ of execution, order of attachment arrest or attachment of property |
32.00 |
Praecipe |
|
104. Commission of 5 per cent to be charged on the first $1,000 and 2½% upon all above that sum when levied by seizure and sale such sum to include the auctioneer’s commission |
|
To be deducted by the Sheriff |
|
Note — Where the sale is made by private contract, only half the commission will be payable. |
|
|
|
105. Commission of 4% to be charged on all money received by the Sheriff under garnishee summons |
|
To be deducted by the Sheriff |
|
106. Commission of 4% to be charged on all money received by the Sheriff under an Order for the attachment before judgment of money belonging to the debtor in the hands of a third party |
|
To be deducted by the Sheriff |
|
107. Commission of 2% to be charged on all money received by the Sheriff in satisfaction of a writ of seizure and sale where an execution is withdrawn, satisfied or stopped |
|
To be deducted by the Sheriff |
|
108. Commission of 2% to be charged on the estimated value of the property seized or the amount stated in the writ whichever is the lesser where the execution is withdrawn, satisfied or stopped |
To be paid in cash to the Sheriff by the Execution Creditor |
|
|
109. For each man in possession necessarily employed in taking charge of any property under seizure |
Actual Cost |
Paid in cash to the Sheriff or direct payment on vouchers certified by the Sheriff |
|
110. For removal of goods or animals to place of safe keeping, when necessary |
Actual Cost |
Paid in cash to the Sheriff |
|
111. Where goods or animals are removed for warehousing and taking charge of the same, including feeding of animals, 6% on the value of the goods or animals removed or the sum indorsed on the writ of execution, whichever is the less. No fees for keeping possession of the goods or animals shall be charged after the goods or animals have been removed |
12% |
Paid in cash to the Sheriff |
|
112. For advertising and giving publicity to the sale by auction |
Actual Cost |
Paid in cash to the Sheriff |
|
Note — (a) In every case where the execu- tion is withdrawn, satisfied or stopped the fees shall be paid by the person at whose instance the sale is stopped, and the amount of any costs or charges payable under this Appendix shall be taxed by the Judge, in case the Sheriff and the party liable to pay such costs and charges dif- fer as to the amount thereof. |
|
|
|
(b) The charges laid down under items 109, 110, 111 and 112 shall be collected in cash and deposited in Court and the amounts actually incurred for the services specified in the said items shall be paid out of such deposit by the Sheriff to the persons employed to render such services, any balance to be paid out to the person making the deposit. |
|
|
|
113. For the return of any writ of process and filling same, exclusive of the fee paid on filing
|
16.00 |
Praecipe |
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