The Rules of the Supreme Court (Northern Ireland) (Revision) 1980

• (1) 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(2) of that Order, the action shall be stayed against that defendant only, but—

• (a) the sum recoverable under any judgment given in the plaintiffs 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 opinion that there was reasonable grounds for him to proceed with the action against the other defendant.

• (2) Where in an action for libel a party pleads the defence for which section 2 of the Libel Act 1843⁴⁹⁹ provides, Order 22, rule 7 shall not apply in relation to that pleading.

Statement in open court

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 open court 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 make 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 the judge before whom it is to be made.

Interrogatories not allowed in certain cases

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

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 the judge, 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.

Fulfilment of offer of amends [ ...]

8

• (1) An application to the Court under [⁵⁰¹ section 3 of the Defamation Act 1996] to determine any question as to the steps to be taken in fulfilment of an offer of amends made under that section must, unless the application is made in the course of proceedings for libel or slander in respect of the publication to which the offer relates, be made in chambers in the Queen’s Bench Division, but only a judge may determine such question.

• (2) No appearance need be entered to an originating summons by which such an application is made.

[E.r. 8]

• (3) ⁵⁰² The application must include—

• (a) a copy of the offer to make amends;

• (b) details of the steps taken to fulfil the offer to make amends;

• (c) a copy of the text of any correction and apology;

• (d) details of the publication of the correction and apology;

• (e) a statement of the amount of any sum paid as compensation;

• (f) a statement of the amount of any sum paid as costs; and

• (g) why the offer to make amends is unsatisfactory.

• (4) Where any step specified in section 2(4) of the 1996 Act has not been taken, the application must state—

• (a) what steps are proposed by the party to fulfil the offer to make amends and the date or dates on which each step will be fulfilled; or

• (b) that no proposal has been made to take that step to fulfil the offer to make amends.]

[ Summary disposal under the Defamation Act 1996

9

• (1) This rule applies to proceedings for summary disposal under sections 8 and 9 of the 1996 Act.

• (2) The Court may, at any stage of the proceedings—

• (a) treat any application, pleading or other step in the proceedings as an application for summary disposal; or

• (b) make an order for summary disposal without any such application.

• (3) The Court may, on any application for summary disposal, direct the defendant to elect whether or not to make an offer to make amends under section 2 of the 1996 Act.

• (4) When it makes a direction under paragraph (3), the Court will specify the time by which and the manner in which—

• (a) the election is to be made; and

• (b) notification of the election is to be given to the Court and other parties.

• (5) An application for summary disposal must be supported by an affidavit which—

• (a) states that it is an application under section 8 of the 1996 Act;

• (b) verifies the facts on which the application is based;

• (c) identifies concisely any point of law on which the application relies;

• (d) states that in the deponent’s belief the claim or the defence has no realistic prospect of success and that there is no reason why the claim should be tried; and

• (e) states whether or not the defendant has made an offer to make amends and whether or not the offer has been withdrawn.

• (6) An application for summary disposal may be made at any time after the service of the statement of claim.

• (7) Where the Court makes an order for summary disposal, the order will specify the date by which the parties should reach agreement about the content, time, manner, form and place of publication of the correction and apology.

• (8) Where the parties cannot agree on the content of any correction and apology within the time specified in the order of the Court, the plaintiff must—

• (a) prepare a summary of the judgment by the Court; and

• (b) serve it on all the other parties within 3 days of the date specified in the order.

• (9) Where the parties cannot agree the summary of the judgment prepared by the plaintiff, they must within 3 days of receiving the summary—

• (a) lodge with the Court and serve on all the other parties a copy of the summary showing amendments they wish to make to it; and

• (b) apply to the Court for the Court to settle the summary.

• (10) An application to settle the summary will be heard by the judge who gave the judgment.]

Interpretation

1

In this Order—

• “the Act” means The Consumer Credit Act 1974⁵⁰⁵ and a section referred to by number means the section so numbered in the Act and expressions which are defined in the Act have the same meaning in this Order as they have in the Act; and

a reference to proceedings or claims which relate to a regulated agreement shall be deemed to include a reference to proceedings or claims which relate to a security for a regulated agreement or to a debt or other liability arising under a regulated agreement.

Assignment of business

2

Proceedings under the Act shall be assigned to the Queen’s Bench Division, with the exception of proceedings relating to an agreement secured by a mortgage which shall be assigned to the Chancery Division.

Commencement of proceedings

3

• (1) Save as otherwise provided in these Rules, proceedings under the Act may be commenced by writ or originating summons.

• (2) Where proceedings brought by the creditor relate to a regulated agreement the originating process shall contain a statement clarifying which claim or claims relate to a regulated agreement.

Default of appearance or defence

4

• (1) Notwithstanding Order 13 or Order 19, no judgment in default of appearance or in default of defence in respect of claims which relate to a regulated agreement may be entered without the leave of the court unless the writ of summons contains a statement as required by rule 3(2) and there is produced a certificate by the plaintiff’s solicitors or (if he sues in person) an affidavit stating that—

• (a) the regulated agreement is not secured by a mortgage;

• (b) a default notice in proper form as required by sections 87 and 88 was duly served in sufficient time before the commencement of proceedings and has not been complied with by the debtor or surety;

• (c) it is not necessary to apply for an enforcement order granting leave to enforce (the creditor having complied with the relevant requirements of the Act and regulations made thereunder);

• (d) there has been no breach of the requirement in section 141(5) as to the joinder of parties to the proceedings; and

• (e) no notice of intention to apply for a time order or notice of intention to have a credit agreement reopened as extortionate has been filed in the Central Office or the Chancery Office (as the case may be) or received by the plaintiff.

• (2) Notwithstanding Order 65 rule 9, where the leave of the Court is required for judgment in default of appearance or defence, the summons and a copy of the affidavit must be served on every other party to the proceedings.

Joinder of parties

5

• (1) Where the debtor or any surety has not been served with a writ or originating summons commencing proceedings relating to a regulated agreement, the Court may, on an application which may be made ex parte and shall be grounded upon an affidavit, dispense with the requirement in section 141(5) (all parties to a regulated agreement and any surety to be parties to any proceedings).

• (2) In proceedings relating to a regulated agreement where—

• (a) the plaintiff was not one of the original parties to the agreement, and

• (b) the former creditor’s rights and duties under the agreement have passed to the plaintiff by operation of law or assignment,

the requirement in section 141(5) shall not apply to the former creditor, unless the Court shall otherwise direct.

• (3) Notice of an application under paragraph (1) shall be served on such person as the Court may direct.

• (4) This rule shall apply without prejudice to Order 15.

Action to recover possession of goods under a regulated hire-purchase agreement

6

In an action to recover possession of goods under a regulated hire-purchase agreement the statement of claim or (as the case may be) the affidavit filed in support of the originating summons shall include the following particulars—

• (a) the date of the agreement and the parties thereto, with sufficient particulars to enable the debtor to identify the agreement, and details of any sureties;

• (b) where the plaintiff was not one of the original parties to the agreement, the means by which the rights and duties of the creditor under the agreement passed to him;

• (c) a statement that the agreement is a regulated agreement;

• (d) the place where the agreement was signed by the debtor (if known);

• (e) whether a default notice or a notice under section 76(1) has been served on the debtor, and the date and method of service;

• (f) the goods claimed;

• (g) the total price;

• (h) the amount paid by or on behalf of the debtor;

• (i) the date when the right to demand recovery of the goods accrued;

• (j) the amount of arrears accrued at the date when the right to demand recovery of the goods accrued;

• (k) the amount of any further balance under the agreement being the total price less—

• (a) the amount paid; and

• (b) any arrears; and

• (l) the amount (if any) claimed in addition to the delivery of the goods, stating the cause of action in respect of which each such claim is made.

Particulars to be given in other claims arising out of a regulated hire-purchase agreement

7

Where a plaintiff’s claim arises out of a regulated hire-purchase agreement but is not brought to recover possession of goods, the statement of claim or (as the case may be) the affidavit filed in support of the originating summons shall include the following particulars—

• (a) the date of agreement and the parties thereto, with sufficient particulars to enable the debtor to identify the agreement, and details of any sureties;

• (b) where the plaintiff was not one of the original parties to the agreement, the means by which the rights and duties of the creditor under the agreement passed to him;

• (c) a statement that the agreement is a regulated agreement;

• (d) the place where the agreement was signed by the debtor (if known);

• (e) whether a default notice or a notice under section 76(1) has been served on the debtor, and the date and method of service;

• (f) the goods let under the agreement;

• (g) the total price;

• (h) the amount paid by or on behalf of the debtor;

• (i) the amount (if any) claimed as being due and unpaid in respect of any instalment or instalments of the total price; and

• (j) particulars of any other claim and the circumstances in which it arises.

Conditional sale agreements

8

The provisions of rules 6 and 7 shall apply to conditional sale agreements as they apply to hire-purchase agreements subject to the following modifications—

• (a) for any reference to the debtor there shall be substituted a reference to the buyer; and

• (b) for any reference to a hire-purchase agreement or to goods let under the agreement, there shall be substituted a reference to the conditional sale agreement, or to goods to be sold under the agreement, as the case may be.

Enforcement Orders

9

• (1) Subject to paragraph (2), an application for an enforcement order shall be made by originating summons.

• (2) If, apart from the need to obtain an enforcement order, a creditor is entitled to payment of the money or to possession of the goods or land to which the regulated agreement relates, an application for an enforcement order shall be made in the course of an action to enforce the agreement.

• (3) The writ or originating summons commencing proceedings in which an enforcement order is sought shall be endorsed with or contain a statement of the circumstances rendering such an order necessary.

Orders under section 86(2), 92(1) or 92(2)

10

Rule 9 shall apply to an application for an order under section 86(2) (enforcement of a partly secured or unsecured regulated agreement on the death of the debtor or hirer), 92(1) (entry into premises to take possession of goods), or 92(2) (recovery of possession of land where debtor is in breach of a regulated conditional sale agreement) as it applies to an enforcement order.

Time Orders

11

• (1) An application under [⁵⁰⁶ section 129(1)(b) or (ba)] for a time order shall be made by originating summons supported by an affidavit which shall include the following particulars—

• (a) the date of the agreement and the parties to it, with sufficient particulars to enable the creditor to identify the agreement, and details of any sureties;

• (b) if the creditor was not one of the original parties to the agreement, the name of the original party to the agreement;

• (c) the place where the agreement was signed by the debtor;

• (d) details of the notice served by the creditor giving rise to the application;

• (e) the total unpaid balance admitted to be due under the agreement and the amount of any arrears (if known) together with the amount and frequency of the payments specified by the agreement;

• (f) the debtor’s proposals as to payment of any arrears and of future instalments together with the reasons for the relevant breach of the agreement and details of his means; and

• (g) where the application relates to a breach of the agreement other than the non-payment of money, the reasons for that breach and the debtor’s proposals for remedying the breach.

• (2) Where in proceedings (other than mortgage actions to which Order 88 rule 4A applies) commenced by a creditor, a debtor or surety wishes to apply for a time order under section 129(1)(a) or section 129(1)(c), he shall forthwith file and serve on the other party or parties to the proceedings a notice of his intention so to apply.

• (3) If at the time of serving a notice under paragraph (2) the debtor or surety has not entered an appearance in the proceedings the notice must specify an address for service as if it were a memorandum of appearance.

• (4) After a notice under paragraph (2) has been served in an action begun by writ, judgment in default of appearance or in default of defence shall not be entered without the leave of the Court.

• (5) An application for leave under paragraph (4) must be made by summons supported by affidavit and, notwithstanding anything in Order 65 rule 9, the summons and a copy of the affidavit must be served on every other party to the proceedings.

• (6) ⁵⁰⁷ An applicant who is a debtor or hirer making an application for an order under section 129(1)(ba) must attach to the supporting affidavit a copy of the notice served on the creditor or owner under section 129A(1)(a).]

Powers of Court: regulated agreements

12

• (1) On the hearing of any application in proceedings which relate to a regulated agreement and, without prejudice to any of the Court’s other powers under the Act or otherwise, the Court may, whether or not the debtor or surety has entered an appearance, served any pleading or filed or served a notice under rule 11 or appears at the hearing, exercise the powers of the Court under sections 129 to 136.

• (2) Where, on an application for leave to enter judgment in default of appearance or defence the Court refuses such leave in respect of a claim or any part of a claim, it may make or give any such order or direction as it might have made or given if the application had been an application under Order 14 rule 1 or Order 86 rule 1 (as the case may be).

Application for variation, revocation etc of orders

13

An application for an order under section 130(6) (variation or revocation of time orders), 133(6) (revocation and payment after breach of return orders or transfer orders) or 135(4) (variation of conditional or suspended orders) may be made by summons issued in the same action or proceedings in which the order to be varied or revoked was made.

[ Unfair relationships]

14

• (1) Where a defendant desires [⁵⁰⁸ to apply in accordance with section 140B(2)(b) or (c) for an order under section 140B] he shall forthwith file and serve on the other party or parties to the proceedings a notice to that effect.

• (2) If at the time of serving a notice under paragraph (1) the debtor or surety has not entered an appearance in the proceedings, the notice must specify an address for service as if it were a memorandum of appearance.

• (3) After a notice under paragraph (1) has been served in an 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.

• (4) An application for leave under paragraph (3) must be made by summons supported by affidavit, and notwithstanding anything in Order 65 rule 9, the summons and a copy of the affidavit must be served on every other party to the proceedings.

• (5) On the hearing of an application for leave under paragraph (3) or of any proceedings in which a notice under paragraph (1) has been filed, the Court may, whether or not the debtor or surety has entered an appearance or appears at the hearing, exercise the powers of the Court under sections [⁵⁰⁸ 140A to 140D].

• (6) Where, on an application under paragraph (3), the Court refuses leave to enter judgment on a claim or any part of a claim, it may make or give any such order or direction as it might have made or given if the application had been an application under Order 14 rule 1 or Order 86 rule 1 (as the case may be) for judgment on the claim.

References to the Act and regulations

15

Every process issued under the Act shall be endorsed with a statement identifying the particular provision of the Act and any regulation made thereunder pursuant to which relief is sought.]

[⁵¹⁰ ...]

PART IV — CONVENTION PROCEEDINGS

Introductory

27

• (1) This Part of this Order shall apply to Convention proceedings and, subject to the provisions of this Part, Parts I, III and V of this Order shall apply, with the necessary modifications, to Convention proceedings as they apply to proceedings in the High Court under the 1967 Act or the 1987 Order.

• (2) Any reference in this Part of this Order to the nationality of a person who is not solely a United Kingdom national means that person’s nationality as determined in accordance with section 9 of the 1969 Act.

Originating summons

28

• (1) An applicant for a Convention adoption order shall state in his originating summons that he is applying for a Convention adoption order.

• (2) The originating summons—

• (a) need not contain paragraphs corresponding to paragraph 2, of Form 8 but

• (b) shall contain the additional information required by Part III of Appendix F.

Evidence as to nationality

29

• (1) Any document (or copy of a document) which is to be used for the purpose of satisfying the court as to the nationality of the applicant or of the child shall be attached to the originating summons.

• (2) Where the applicant claims that for the purposes of section 1(2)(a), 4(a) or 5(a) of the 1969 Act he or the child is a national of a Convention country, he shall attach to the originating summons a statement by an expert as to the law of that country relating to nationality applicable to that person.

Statement at hearing

30

The requirement that the conditions in section 1(2), (3) and (4) or (5) of the 1969 Act are satisfied immediately before the order is made may be established by—

• (a) oral evidence at the hearing of an application for a Convention adoption order, or

• (b) a document executed by the applicant containing a statement to that effect attested in accordance with rule 44 and such a statement shall be admissible in evidence without further proof of the signature of the applicant.

Orders

31

Within 7 days after a Convention adoption order has been drawn up, the Master shall by notice to the Registrar General request him to send a copy of the adoption order to the designated authorities of any Convention country—

• (a) of which the child is a national;

• (b) in which the child was born;

• (c) in which the applicant habitually resides; or

• (d) of which the applicant is a national.

Additional provisions for cases where child is not a United Kingdom national

Scope of rules 34 to 37

32

Rules 34 to 37 shall apply to any case where the child is not a United Kingdom national, and in such a case—

• (a) the provisions in Part III of this Order, other than rule 19 (agreement to adoption), and

• (b) paragraphs 9 to 14 of Form 8

shall apply with the necessary modifications to take account of section 1(6)(a) of the 1969 Act.

Evidence as to foreign law relating to consents and consultations

33

The applicant shall file, with his originating summons, a statement by an expert as to the provisions relating to consents and consultations of the internal law relating to adoption of the Convention country of which the child is a national.

Form of consent etc

34

• (1) Any document signifying the consent of a person to, or otherwise containing the opinion of a person on the making of, the Convention adoption order shall be in a form which complies with the internal law relating to adoption of the Convention country of which the child is a national: provided that where the court is not satisfied that a person consents with full understanding of what is involved, it may call for further evidence.

• (2) A document referred to in paragraph (1) shall, if sufficiently witnessed, be admissible as evidence of the consent or opinion contained therein without further proof of the signature of the person by whom it is executed.

• (3) A document referred to in paragraph (1), if executed before the date of the applicant’s originating summons referred to in rule 28(2), shall be attached to that summons.

Notice of hearing

35

• (1) On serving notice of the hearing or notice of presentation on the parties as required under rule 20, the applicant shall also serve notice on any person:—

• (a) whose consent to the making of the order is required, not being an applicant, or

• (b) who, in accordance with the internal law relating to adoption of the Convention country of which the child is a national has to be consulted about, but does not have to consent to, the adoption.

• (2) Any person served or required to be served with notice under this rule shall be treated as if he had been served or was required to be served with notice under rule 20.

Master to receive opinions on adoptions

36

For the purposes of these rules and of section 1(7)(a) of the 1969 Act, the Master is the proper officer of the court to whom any person whose consent is required under, or who is consulted in pursuance of, the internal law relating to adoption of the Convention country of which the child is a national may communicate his consent or other opinion on the adoption.

Proceedings under section 6 of the 1969 Act

Application to annul or revoke adoption

37

• (1) An application for an order under section 6(1) or (2) of the 1969 Act shall be made by originating summons issued out of the office in Form 13; and the person filing the summons shall be described as the applicant and the adopted person and any adopter, not being the applicant, shall be described as a respondent.

• (2) An application under section 6(1) of the 1969 Act shall not, except with the leave of the court, be made later than 2 years after the date of the adoption to which it relates.

Application to declare adoption invalid or determination invalid or affected

38

An application for an order or decision under section 6(3) of the 1969 Act shall be made by originating summons issued out of the Office in Form 14; and the person filing the summons shall be described as the applicant and the adopted person and any adopter, not being the applicant, shall be described as a respondent.

Evidence in support of application

39

• (1) Evidence in support of an application under section 6 of the 1969 Act shall be given by means of an affidavit in Form 15 which shall be filed within 14 days after the issue of the originating summons.

• (2) Where the application is made under section 6(1) or (3) of the 1969 Act there shall be exhibited to the affidavit a statement of the grounds upon which the applicant intends to rely and, subject to rule 45, there shall be filed with the affidavit expert evidence of any provision of foreign law relating to adoption on which the applicant intends to rely,

• (3) The court may order any deponent to give oral evidence concerning the grounds stated in, or exhibited to, his affidavit.

Guardian ad litem

40

Where the adopted person is under the age of 18 on the date on which an application under section 6 of the 1969 Act is made, rules 17 and 18 shall apply to the application as they apply to an application for an adoption order.

Notice of order made under Section 6 etc

41

• (1) Where under section 6 of the 1969 Act the court has ordered that an adoption be annulled or revoked or that an adoption of a determination shall cease to be valid in Northern Ireland, the Master shall serve notice of the order on the Registrar General, and shall state in the notice—

• (a) the date of the adoption;

• (b) the name and address of the authority which granted the adoption; and

• (c) the names of the adopter or adopters and of the adopted person as given in the affidavit referred to in rule 39.

• (2) A notice under paragraph (1) in respect of the annulment or revocation of an adoption shall request the Registrar General to send a copy of the adoption order to the designated authorities of any Convention country—

• (a) in which the adoption was granted;

• (b) of which the adopted person is a national; or

• (c) in which the adopted person was born.

• (3) Where under Article 55(1) the court has ordered that a Convention adoption order be revoked, the notice to the Registrar General under Article 55(4) shall request the Registrar General to send a copy of the adoption order to the designated authorities of any Convention country—

• (a) of which the adopted person is a national; or

• (b) in which the adopted person was born.

SUPPLEMENTARY

Evidence as to specified or notified provisions

42

• (1) Where the applicant seeks to satisfy the court as to any question which has arisen or is likely to arise concerning a provision:—

• (a) of the internal law of the Convention country of which the applicant or any other person is or was a national,

• (b) which has been specified in an order—

• (i) under section 17(8) of the Adoption Act 1976 (a ‘specified provision’), or

• (ii) under section 54(4) of the Adoption Act 1976 (a ‘notified provision’),

expert evidence of the specified or notified provision shall, where practicable, be attached to the originating summons.

• (2) Paragraph (1) shall apply, in the case of a person who is or was a United Kingdom national, for the purposes of a notified provision in respect of a specified country as it applies for the purposes of a notified provision in respect of a Convention country of which a person is or was a national.

Interim order

43

Where the applicant is a national or both applicants are nationals of a Convention country, the court shall take account of any specified provision (as defined in section 1(8) of the 1969 Act) of the internal law of that country before any decision is made to postpone the determination of the application and to make an interim order.

Witness of documents

44

A document shall be sufficiently attested for the purposes of this Part of these rules if it is witnessed by one of the following persons—

• (a) if it is executed in Northern Ireland, the guardian ad litem, a Lay Magistrate, any officer of the Court of Judicature appointed by the Lord Chief Justice in accordance with section 112 of the Judicature (Northern Ireland) Act 1978,

• (b) if it is executed elsewhere, any person specified in rule 7(2), (3) or (4), according to the country in which it is executed.

Service of documents

45

• (1) Any document to be served for the purposes of this Part of this Order may be served out of the jurisdiction without the leave of the court.

• (2) Any document served out of the jurisdiction in a country in which English is not an official language shall be accompanied by a translation of the document in the official language of the country in which service is to be effected or, if there is more than one official language of the country, in any one of those languages which is appropriate to the place in that country where service is to be effected.

Translation of documents

46

Where a translation of any document is required for the purposes of Convention proceedings, the translation shall, unless otherwise directed, be provided by the applicant.

1

• (1) In this Order unless the context otherwise requires—

• “the 2008 Act” means the Human Fertilisation and Embryology Act 2008⁵¹³ and expressions which are defined in the 2008 Act have the same meaning as in that Act;

• “the 1987 Order” means the Adoption (Northern Ireland) Order 1987⁵¹⁴ as applied with modifications by the Parental Orders Regulations and expressions which are defined in the 1987 Order have the same meaning as in that Order;

• “the Parental Orders Regulations” means the Human Fertilisation and Embryology (Parental Orders) Regulations 2010⁵¹⁵;

• reference to a Form by number is reference to the Form as numbered in Appendix H;

• “the birth mother” means the woman who carried the child;

• “the other parent” means any person, other than the birth mother, who is a parent of the child but is not one of the petitioners and includes any man who is the father by virtue of section 35 of the 2008 Act or any woman who is a parent by virtue of section 42 or 43 of the 2008 Act;

• “the birth parents” means the birth mother and the other parent;

• “the Office” means the Office of Care and Protection and the Master means “the Master” (Care and Protection).]

Proceedings

2

Any hearing of an application under the [⁵¹⁶ 2008] Act or the 1987 Order shall be dealt with in chambers unless the court otherwise directs.

Commencement of proceedings

3

• (1) An application for a parental order shall be made by originating summons in Form 1 issued out of the Office.

• (2) The applicants shall be [⁵¹⁶ the persons who may apply for a parental order pursuant to section 54 of the 2008 Act] and the respondents shall be the birth parents (except where the applicants seek to dispense with their consent) and any other persons or body in whom the parental rights and duties relating to the child are vested at the time of the application.

• (3) The court may at any time direct that any other person or body be made a respondent to the summons.

• (4) On filing the originating summons the applicants shall pay the appropriate fee and supply three copies of the originating summons together with any other documents required to be supplied.

Appointment of guardian ad litem

4

• (1) As soon as practicable after the originating summons has been filed, the Master shall appoint a guardian ad litem of the child and shall send to him a copy of the originating summons together with any documents attached thereto.

• (2) The guardian ad litem shall be an officer of a Board or of an HSS trust or a person employed by such other organisation as the Department may approve.

Duties of guardian ad litem

5

• (1) With a view to safeguarding the interests of the child before the court the guardian ad litem shall—

• (a) investigate so far as is reasonably practicable the matters set out in [⁵¹⁷ section 54(1) to (8) of the 2008 Act];

• (b) so far as he considers necessary, investigate any matter contained in the originating summons or other matter which appears relevant to the making of a parental order;

• (c) on completing his investigations make a report in writing to the court, drawing attention to any matters which, in his opinion, may be of assistance to the court in considering the application and shall so notify the applicants that he has done so;

• (d) perform, at any time before the final determination of the application, such other duties as appear to him to be necessary or as the court may direct.

• (2) With a view to obtaining the directions of the court on any matter, the guardian ad litem may at any time make such interim report to the court as appears to him to be necessary and in such a case the Master shall notify the applicants.

• (3) The guardian ad litem shall attend any hearing of the application if so required by the court.

• (4) Any report made to the court under this rule shall be confidential.

Agreement

6

• (1) Any document signifying the agreement of the birth parents to the making of a parental order shall be in Form 2 and shall, if executed in Northern Ireland, be witnessed by a Lay Magistrate.

• (2) If the document is executed outside Northern Ireland it shall be witnessed by one of the persons specified in rule 7(2), (3) or (4) of Order 84, according to the country in which it is executed.

• (3) If the document is executed before the commencement of proceedings, it shall be filed with the originating summons.

Notice of hearing

7

• (1) Within 14 days of being notified by the guardian ad litem that he has made his report to the court, the applicants shall apply to the Master to fix a date for the hearing of the application.

• (2) On an application under paragraph (1) the Master shall fix a date and time for the hearing and shall take account of any directions given under paragraph (6).

• (3) The Master shall inform the applicants and the guardian ad litem of the date and time fixed for hearing and the applicants shall serve notice of the hearing in Form 3 on all the parties and any Board, HSS trust or voluntary organisation which has at any time provided accommodation for the child.

• (4) If the applicants have no solicitor acting for them the Notice in Form 3 shall be signed by the Master.

• (5) Anyone wishing to object to the making of a parental order, shall within 14 days of the date of service on him of the Notice of Hearing give the Master written notice of his intention to object in Form 4.

• (6) If at any stage before the hearing of the application it appears to the court that directions for the hearing are required the court may give such directions as it considers necessary.

Objections

8

• (1) Where the Master receives notice of objection under rule 7(5) he shall notify the judge, the applicants (or their solicitor) and the guardian ad litem, and the judge shall give such directions as appear appropriate.

• (2) The judge may direct that the person who served such notice of objection shall appear before him in his chambers on a date fixed by him and upon hearing the nature of or grounds for the objection made by him or his legal representative on his behalf give such directions or make such orders as appear just.

The hearing

9

• (1) Subject to any directions given under rule 8(2) on the hearing of the summons, any person served with a Notice of Hearing under rule 7(3) may attend and be heard on the question whether a parental order should be made.

• (2) Any member or employee of a Board, HSS trust or other body may address the court if he is duly authorised in that behalf.

• (3) The judge shall not make a parental order except after the personal attendance before him of the applicants.

• (4) If there are special circumstances which appear to the court to make the attendance of any other party desirable, the court may direct that that party shall attend.

Proof of identity of child, etc.

10

Where the child who is the subject of the proceedings is identified in the originating summons by reference to a birth certificate which is the same, or relates to the same entry in the Register of Births, as a birth certificate exhibited to a form of agreement, the child so identified shall be deemed, unless the contrary appears, to be the child to whom the form of agreement refers.

Notices and copies of orders etc

11

• (1) A parental order shall be made in Form 5.

• (2) Within 7 days of the making of the parental order the Master shall send a copy of the order to the Registrar General.

• (3) Where a parental order is made or refused the Master shall serve notice to that effect on every respondent.

• (4) A copy of a parental order may be supplied to the applicants.

• (5) A copy of a parental order may be supplied to any other person with the leave of the court.

Application in respect of removal of, or for return of, child

12

• (1) An application under Article 28(1) or 30(1) or (2) of the 1987 Order shall be made by sending a notice of application in Form 6 to the Master.

• (2) Subject to paragraph (4), the Master shall serve a copy of the notice of application, together with a notice of the date of hearing on the parties to the proceedings for a parental order, on any guardian ad litem who has been appointed at the date of the application and on any other person or body, not being the child, as the court thinks fit.

• (3) Anyone who wishes to object to the application shall, within 14 days of the service of the application on him, send written notice of his objection to the Master.

• (4) The Master shall serve a copy of the written notice of objection on each person served with a copy of the application.

• (5) The court may at any time give directions, as to the appointment of a guardian ad litem of the child or, as to the conduct of the application under this rule.

• (6) Where an application under this rule is determined the Master shall serve notice of the effect of the determination on all parties.

Application for amendment of orders and revocation of directions

13

• (1) An application under Article 52 of the 1987 Order for the amendment of a parental order, or, for the revocation of a direction, for the marking of an entry in the Register of Births or the Parental Order Register, to the Registrar General, may be made ex parte in the first instance, but the court may require notice of the application to be served on such persons as it thinks fit.

• (2) Where the application referred to in paragraph (1) is granted, the Master shall send to the Registrar General a notice specifying the amendments or informing him of the revocation and shall give sufficient particulars of the order to enable the Registrar General to identify the case.

Service of documents

14

The person effecting service of any document under this Order shall make, sign and file a certificate showing the date, place and mode of service. If he has failed to effect service of any document, he shall make, sign and file a certificate of non-service showing the reason why service has not been effected.

Costs

15

On the determination of proceedings to which this Order applies, the judge may make such order as to the costs as he thinks just and, in particular, may order the applicants to pay—

• (a) the expenses incurred by the guardian ad litem,

• (b) the expenses incurred by any respondent in attending the hearing, or such part of those expenses as the judge thinks proper.

Custody, inspection and disclosure of documents and information

16

• (1) All documents relating to proceedings for a parental order shall, while they are in the custody of the court, be kept in a place of special security.

• (2) A party who is an individual and is referred to in a confidential report supplied to the court by a guardian ad litem may inspect, for the purposes of the hearing, that part of such report as refers to him, subject to any direction given by the court that—

• (a) no part of the report shall be revealed to that party, or

• (b) the part of the report referring to that party shall be revealed only to that party’s legal advisers, or

• (c) the whole or any other part of the report shall be revealed to that party.

• (3) Any person who obtains any information in the course of, or relating to, proceedings for a parental order shall treat that information as confidential and shall only disclose it if—

• (a) the disclosure is necessary for the proper exercise of his duties, or

• (b) the information is requested—

• (i) by a court (whether in Northern Ireland or not) having power to determine proceedings for parental orders and related matters, for the purpose of the discharge of its duties in that behalf; or

• (ii) by a person who is authorised in writing by the Department to obtain the information for the purposes of research.

• (4) Save as required or authorised by a provision of any enactment or of this Order or with the leave of the court, no document or order held by or lodged with the court in relation to proceedings for a parental order shall be open to inspection by any person, and no copy of any such document or order, or of an extract from any such document or order, shall be taken by or issued to any person.]

Interpretation

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

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

3

• (1) All the executors or administrators of the estate or trustees of the trust, as the case may be, to which an administration action 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

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 under Order 28, rule 8, in relation to the action.

Judgments and orders in administration actions

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 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

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.

Application by plaintiff for summary judgment

1

• (1) In any action in the Chancery Division begun by writ indorsed with a claim—

• (a) for specific performance of an agreement (whether in writing or not) for the sale, [⁵¹⁸ purchase, exchange, mortgage or charge] 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 recission 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

2

• (1) An application under rule 1 shall be made by summons supported by an affidavit verifying the facts on which the cause of action is based and stating that in the deponent’s belief there is no defence to the action.

[⁵¹⁹ . . .]

• (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

3

Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies 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

4

• (1) A defendant may show cause against an application under rule 1 by 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 such capacity—

• (a) to produce any document;

• (b) if it appears to the court that there are special circumstances which make it desirable that he should do so, to attend and be examined on oath.

Directions

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 the action.

Costs

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 unconventional leave to defend, then, without prejudice to Order 62, 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

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.

Receiver’s register

1

Every receiver appointed by the Court in an action to enforce registered debentures or registered debenture stock shall, if so directed by the Court, keep a register of transfers of, and other transmissions of title to, such debentures or stock (in this Order referred to as “the receiver’s register”).

Registration of transfers, etc.

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 debenture or debenture stock by virtue of any transfer or other transmission of title, and on production of such evidence of identity and title as to 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 of 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

3

• (1) Any person aggrieved by any thing 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.

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.

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 certificate, 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 Chancery Office, 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 Chancery Office 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 certificates 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

6

• (1) Where an action to enforce any debentures or debenture stock an order is made for payment in respect of the debentures or stock, the Accountant General 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 other 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 Accountant General.

Application and interpretation

1

• (1) This Order applies to any action (whether begun by writ or originating summons) by a mortgagee or a mortgagor or by any person having the right to foreclose or redeem any mortgage, being an action in which there is a claim for any of the following reliefs, namely—

• (a) payment of moneys secured by the mortgage,

• (b) sale of the mortgaged property,

• (c) foreclosure,

• (d) delivery of possession to the mortgagee by the mortgagor 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 mortgagee.

• (h) ⁵²⁰ an enforcement order or a time order where a regulated agreement is secured by a mortgage.]

• (2) ⁵²¹ In this Order—

• “the Act of 1974” means the Consumer Credit Act 1974⁵²²;

• “enforcement order”, “time order” and “regulated agreement” have the same meaning as in section 189(1) of the Act of 1974; and

• “mortgage” includes a legal and an equitable mortgage and a legal and an equitable charge, and references to a mortgagor, a mortgagee and mortgaged property shall be construed accordingly.]

• (3) An action to which this Order applies is referred to in this Order as a mortgage action.

• (4) These Rules apply to a mortgage action subject to the following provisions of this Order.

Assignment of certain actions to Chancery Division

2

Without prejudice to Order 1, rule 10, any action in which there is a claim for—

• (a) payment of moneys secured by a mortgage of any real or leasehold property, [⁵²³ ...]

• (b) delivery of possession to the mortgagee of any such property by the mortgagor or by any other person who is alleged to be in possession of the property, [⁵²⁴ or]

• (c) ⁵²⁵ an enforcement order or a time order where a regulated agreement is secured by a mortgage of any such property]

shall be assigned to the Chancery Division.

Commencement of action

3

The writ or originating summons by which a mortgage action is begun shall be indorsed with or contain a statement showing—

• (a) ⁵²⁶ where the mortgaged property is situated including its postal address (if any); and]

• (b) if the plaintiff claims possession of the mortgaged property, whether the property consists of or includes a dwelling house and, if so, whether the dwelling house is one to which [⁵²⁷ Part III of] the Rent (Northern Ireland) Order 1978⁵²⁸ applies.

Claims for possession: non-appearance by a defendant

4

• (1) ⁵³⁰ Where in a mortgage action in the Chancery Division begun by originating summons, being an action in which the plaintiff is the mortgagee and claims delivery of possession or payment of moneys secured by the mortgage 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 as references to any such defendant.

This rule shall not be taken as 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.

[⁵³¹ ...]

• (3) ⁵³²] 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.

[⁵³³ ...]

• (4) ⁵³²] Service under paragraph (2) or [⁵³⁴ (3)], 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.

[⁵³⁵ ...]

• (5) ⁵³⁶] 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 [⁵³⁴ (4)].

[ Claim for possession: notice to be sent to defendant in default of payment

4A

• (1) ⁵³⁸ Where the plaintiff—

• (a) claims in a mortgage action delivery of possession of land which comprises or includes a dwelling house because of failure to pay monies secured by the mortgage; or

• (b) applies for the removal or variation of a stay or suspension contained in an order for delivery of possession made as a result of such a claim in a mortgage action relating to such land,

he shall, when serving a copy of the notice of appointment or any summons (not being an originating summons) for such a claim or application also serve on the defendant a notice in Form No. 10A in Appendix A.]

• (2) Paragraph (4) of rule 4 shall apply to service of a notice under this rule as it applies to service under paragraph (2) or (3) of that rule save that a copy of the notice in Form 10A [⁵³⁹ ...] shall be attached to the certificate proving service.]

Claim for possession of land: notice to occupiers

4B

• (1) ⁵⁴⁰ Where the plaintiff—

• (a) claims in a mortgage action delivery of possession of land which comprises or includes a dwelling house, or

• (b) applies for the removal or variation of a stay or suspension contained in an order for delivery of possession as a result of such a claim made in a mortgage action,

he shall, not less than four clear days before the date fixed for the first hearing of the summons or application and unless the court otherwise directs, post to or insert through the letter box at the property a sealed envelope addressed to “The Occupier” and containing a notice in Form 10C of Appendix A.

• (2) Paragraph (4) of rule 4 shall apply to service of a notice under this rule as it applies to service under paragraph (2) or (3) of that rule save that a copy of the notice in Form 10C shall be attached to the certificate proving service.]

Action in Chancery Division for possession or payment: evidence

5

• (1) ⁵⁴¹] The affidavit in support of the originating summons by which an action [⁵⁴² (other than an action to which rule 5A applies)] to which this rule applies is begun must comply with the following provisions of this rule.

This rule applies to a mortgage action in the Chancery Division begun by originated summons in which the plaintiff is the mortgagee and claims delivery of possession or payment of moneys secured by the mortgage or both.

• (2) ⁵⁴³ The affidavit must exhibit—

• (a) the original mortgage or a true copy thereof, and

• (b) where the mortgage secures a regulated agreement, the original agreement or a true copy thereof

and the original mortgage (or, in the case of a registered charge, the certificate of charge) and the original agreement must be produced at the hearing of the summons.]

• (2A) ⁹⁴⁷ The affidavit must state whether the debt which is secured by the mortgage arose under a regulated agreement and, if so, specify—

• (a) the date on which any notice required by section 76 or section 87 of the Act of 1974 was given,

• (b) where the plaintiff has obtained or is now applying for an enforcement order, particulars of any enforcement order obtained or, as the case may be, the circumstances which render such an order necessary, and

• (c) the amount of a day’s interest.]

• (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 of case otherwise directs, the state of the account between the mortgagor and mortgagee with particulars of—

• (a) the amount of the advance;

• (b) ⁹⁴⁸ the amount of the periodic repayments and payments of interest required to be made;

• (bb) the rate of interest payable—

• (i) at the commencement of the mortgage;

• (ii) at the commencement of the proceedings; and

• (iii) at the date of the affidavit,]

• (c) the amount of any interest or instalments in arrears at the date of issue of the originating summons and at the date of the affidavit; and

• (d) the amount remaining due under the mortgage.

• (4) ⁹⁴⁹ Where the plaintiff claims delivery of possession, the affidavit must—

• (a) ⁹⁵⁰ give particulars of the inquiries made as to the occupation of the mortgaged property and of the plaintiff’s knowledge, information and belief as to—

• (i) whether or not the property is occupied; and

• (ii) if it is believed to be occupied, the identity of every person believed to be in occupation.]

• (b) state, in the case of a dwelling house, whether a charge has been registered pursuant to Article 6 of the Family Law (Miscellaneous Provisions) (Northern Ireland) Order 1984 [⁹⁵¹ or Article 6 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998⁹⁵²] and if so, on whose behalf, and whether he has served notice of the proceedings on the person on whose behalf the charge is registered.]

• (5) If the mortgage creates a tenancy other than a tenancy at will between the mortgagor and the mortgagee, the affidavit must show how and when the tenancy was determined and if by service of notice when the notice was duly served.

• (6) ⁹⁵³ Where the plaintiff claims payment of moneys secured by a mortgage, the affidavit must show how the payment is calculated, including—

• (a) the amount of the advance and the amounts and dates of any periodic payments and any interest claimed;