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County Court Rules (Northern Ireland) 1981

Type Ni-Statutory-Rule

Publication 1981-01-01

Last updated 2025-11-26

State In force

Jurisdiction Northern Ireland

Department Government Printer for Northern Ireland

Source legislation.gov.uk

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(2) Where the court allows another party to call and cross-examine the person who made the statement, it may give such directions as it thinks fit to secure the attendance of that person as a witness and as to the procedure to be followed.

Statement admissible under section 1 of the Act of 1971: contents of notice

25

If—

(a) a party has indicated an intention to adduce hearsay evidence of a statement made by a person who will not be called to give evidence; and

(b) another party wishes to attack the credibility of the person who made the statement,

that other party shall, so far as is reasonable in the circumstances, notify the party tendering the hearsay evidence of his intention.]

Statement admissible by virtue of section 2 of the Act of 1971: contents of notice

26

(1) If the statement is contained in a document produced by a computer and is admissible by virtue of section 2 of the Act of I 97 I, the notice shall be in Form 121 and there shall be annexed to it a copy or transcript of the document containing the statement, or of the relevant part thereof, and must contain particulars of—

(a) a person who occupied a responsible position in relation to the management of the relevant activities for the purposes of which the computer was used regularly during the material period to store or process information;

(b) a person who at the material time occupied such a position in relation to the supply of information to the computer, being information which is reproduced in the statement or information from which the information contained in the statement is derived;

and where there are two or more persons who fall within my of the foregoing sub-paragraphs and some only of those persons are at the date of service of the notice capable of being called as witnesses at the hearing, the person, particulars of whom are to be contained in the notice, must be such one of those persons as is at that date so capable.

(2) The notice must also state whether the computer was operating properly throughout the material period and, if not, whether any respect in which it was not operating properly or was out of operation during any part of that period was such as to affect the production of the document in which the statement is contained or the accuracy of its contents.

(3) If the party giving the notice alleges that any person, particulars of whom are contained in the notice, cannot or should not be called as a witness at the hearing for any of the reasons specified in Rule 27, the notice must contain a statement to that effect specifying the reason relied on.

Reasons for not calling a person as a witness

27

The reasons referred to in Rules 25(2) and 26(3) are that the person in question is dead, or beyond the seas, or unfit by reason of his bodily or mental condition to attend as a witness, or that despite the exercise of reasonable diligence it has not been possible to identify him, or that he cannot reasonably be expected to have any recollection of the matters relevant to the accuracy or otherwise of the statement to which the notice relates.

Counter-notice requiring person to be called as a witness

28

(1) Subject to paragraphs (2) and (3), any party on whom a notice under Rule 24 is served may, within ten days of service of the notice on him, give to the chief clerk and to the parry who gave the notice a counter-notice in Form 122 requiring that party to call as a witness at the hearing any person (naming him) particulars of whom are contained in the notice.

(2) Where any notice under Rule 24 contains a statement that any person, particulars of whom are contained in the notice, cannot or should not be called as a witness for the reason specified therein, a party shall not be entitled to serve a counter-notice under this Rule requiring that person to be called as a witness at the hearing unless he contends that that person can or, as the case may be, should be called, and in that case he must include in his counter-notice a statement to that effect.

(3) Where a statement to which a notice under Rule 24 relates is one to which Rule 30 applies, no party on whom the notice is served shall be entitled to serve a counter-notice under this Rule in relation to that statement, but the foregoing provision is without prejudice to the right of any party to apply to the court under Rule 30 for directions with respect to the admissibility of that statement.

(4) If any party by whom a notice under Rule 24 is served tails to comply with a counter-notice duly served on him under this Rule, then, unless any of the reasons referred to in Rule 27 applies in relation to the person named in the counter-notice, and without prejudice to the powers of the court under Rule 31, the statement to which the notice under Rule 24 relates shall not be admissible at the hearing as evidence of any fact stated therein by virtue of section 1 or 2 of the Act of 1971, as the case may be.

Determination of question whether person can or should be called as a witness

29

(1) Where a question arises whether any of the reasons specified in Rule 27 applies in relation to a person, particulars of whom are contained in a notice under Rule 24, the court may, on the application of any party to the proceedings, determine that question before the hearing in accordance with Order 14 or give directions for it to be determined before the hearing and for the manner in which it is to be determined.

(2) Unless the court otherwise directs, notice in Form 123 of any application under paragraph (1) shall be served on every other party to the proceedings.

(3) Where any such question as is referred to in paragraph (1) has been determined thereunder, no application to have it determined afresh at the hearing of the proceedings may be made unless the evidence which it is sought to adduce in support of the application could not with reasonable diligence have been adduced at the time of the disposal of the application under paragraph (1).

Directions with respect to statement made in previous proceedings

30

Where a party has given notice in accordance with Rule 24 that he desires to give in evidence at the hearing a statement falling within section 1(1) of the Act of 1971 which is contained in a record of direct oral evidence given in some other legal proceedings (whether civil or criminal), any party to the proceedings may apply to the court in accordance with Order 14 for directions as to whether, and if so on what conditions, the party desiring to give the statement in evidence will be permitted to do so and (where applicable) as to the manner in which that statement and any other evidence given in those proceedings is to be proved.

Power of the court to allow statement to be given in evidence

31

(1) Without prejudice to section 1(2)(a) of the Act of 1971 and Rule 30, the court may, if it thinks it just to do so, allow a statement falling within section 1(1) or 2(1) of the Act of 1971 to be given in evidence at the hearing of the proceedings notwithstanding that—

(a) the statement is one to which Rule 24(1) applies and that the party desiring to give the statement in evidence has failed to comply with that Rule; or

(b) that party has failed to comply with any requirement of a counter-notice relating to that statement which was served on him in accordance with Rule 28.

(2) Without prejudice to the generality of paragraph (1), the court may exercise its power under that paragraph to allow a statement to be given in evidence at the hearing if a refusal to exercise that power might oblige the party desiring to give the statement in evidence to call, as a witness at the hearing, an opposite party or a person who is or was at the material time the servant or agent of an opposite party.

Restriction on adducing evidence as to credibility of supplier of information, etc.

32

Where—

(a) a notice given under Rule 24 relates to a statement which is admissible by virtue of section 1 of the Act of 1971; and

(b) the person who originally supplied the information from which the record containing the statement was compiled, is not called as a witness at the hearing of the proceedings; and

(c) none of the reasons mentioned in Rule 27 applies so as to prevent the party who gave the notice from calling that person a witness;

no other party to the proceedings shall be entitled, except with the leave of the court, to adduce in relation to that person any evidence which could otherwise be adduced by him by virtue of section 4 of the Act of 1971 unless he gave a counter-notice under Rule 28 in respect of that person or applied under Rule 30 for a direction that that person be called as a witness at the hearing of the proceedings.

Notice required of intention to give evidence of certain inconsistent statements

33

(1) Where a person, particulars of whom were contained in a notice given under Rule 24, is not to be called as a witness at the hearing, any party who is entitled and intends to adduce in relation to that person any evidence which is admissible for the purpose mentioned in section 4(1)(b) of the Act of 1971 shall, within ten days after service of that notice upon him, give notice of his intention to do so in Form 124 to the chief clerk and to the party who gave the notice under Rule 24.

(2) If the statement was made otherwise than in a document, the notice must contain particulars of—

(a) the time, place and circumstances at or in which the statement was made;

(b) the person by whom, and the person to whom, the statement was made; and

(3) If the statement was made in a document, a copy of the document, or of the relevant part thereof, must be annexed to the notice and the notice must contain such (if any) of the particulars mentioned in paragraph 2(a) and (b) as are not apparent on the face of the document or part.

(4) The court may, if it thinks it just to do so, allow a party to give in evidence at the hearing of proceedings any evidence which is admissible for the purpose mentioned in the said section 4(1)(b) notwithstanding that that party has failed to comply with paragraph (1).

Counter-notice

34

Where—

(a) a party to proceedings serves a counter-notice under Rule 28 in respect of any person who is called as a witness at the hearing of the proceedings in compliance with a requirement of the counter-notice; and

(b) it appears to the court that it was unreasonable to require that person to be called as a witness;

then the court may determine the amount of any costs occasioned by reason of the service of the counter-notice on any other party, or direct that they shall be determined, and order that such amount be paid to that other party by the party who served the counter-notice.

ORDER 25 — Hearing and re-hearing

PART I — HEARING BY JUDGE

General

1

At the hearing of any action or other proceeding [[^f00242] the judge or district judge as the case may be] may hear the whole matter of the action or proceeding and give a decree thereon or grant any relief, redress, or remedy or make any order or give any direction he considers necessary to enable him to give a final decree on a day to which the hearing is adjourned.

Where proper parties are not before the court

2

Where at the hearing it appears to [[^f00242] the judge or district judge as the case may be] that there are any claims, estates, titles, rights, duties or liabilities upon which he cannot adjudicate by reason of all the proper parties not being before the court, he may order such parties to be made plaintiffs or defendants upon such terms as to adjournment, notices and costs as he thinks fit.

Where plaintiff does not appear or does not prove his claim

3

(1) If a plaintiff does not proceed with his civil bill or does not appear at the hearing of an action or other proceedings, the action or other proceedings may be struck out or dismissed without prejudice to the plaintiff’s proceeding by a new civil bill or other originating process.

(2) Where a plaintiff appears at the hearing of an action or other proceeding but fails to establish his case to the satisfaction of [[^f00242] the judge or district judge as the case may be], [[^f00242] the judge or district judge as the case may be] may dismiss the action or other proceeding either without prejudice to the plaintiff’s proceeding by a new civil bill or other originating process or on the merits as he thinks just.

(3) Where, an action or other proceeding has been dismissed without prejudice and a subsequent action or other proceeding for the same or substantially the same cause of action is brought before payment of any costs payable under the dismiss, [[^f00242] the judge or district judge as the case may be] may stay the subsequent action or other proceeding-until such costs have been paid.

Decree where defendant does not appear

4

(1) If the defendant (not being the Crown) does not appear, [[^f00242] the judge or district judge as the case may be], upon proof of service and of facts entitling the plaintiff to relief, may subject to paragraphs (2) to (4), give such decree or make such order as he considers just, and an endorsement of service or an affidavit of service or, where Order 6 Rule 3(2)(b) or Rule 3(7) applies the solicitor’s certificate referred to in Rule 12 of Order 6 may be accepted as proof of service.

(2) If the Crown does not appear on the hearing of any civil bill in which it is a defendant, the civil bill shall be adjourned to a date fixed by [[^f00242] the judge or district judge as the case may be], on such terms as to him may seem just.

(3) Notice of the date fixed shall be served upon the Crown in a manner to be directed by [[^f00242] the judge or district judge as the case may be], and shall set out that the case will be heard on the date named and such decree given or other order made as to [[^f00242] the judge or district judge as the case may be] may seem just, the Crown’s absence notwithstanding.

(4) If the Crown does not appear on the adjourned hearing [[^f00243] the judge or district judge as the case may be] may, upon proof of service of such notice, proceed to hear and determine the case and may give such judgment or make such other order as to him may seem just.

If proceedings discontinued, etc., counterclaim may proceed

5

Where the defendant sets up a counterclaim and the claim of the plaintiff is discontinued, struck out, stayed or dismissed, the counterclaim may be proceeded with and the defendant, on proof thereof, may have a decree.

Non-appearance on a counterclaim

6

If a person, not originally a party to the proceedings, who has been served with a counterclaim does not appear at the hearing, [[^f00243] the judge or district judge as the case may be] may proceed with the hearing and may give such decree or make such order as may be just against the person so served, or may adjourn the hearing and give such directions as he thinks fit.

Exclusion of counterclaim

7

Where [[^f00243] the judge or district judge as the case may be] is of opinion that a counterclaim would be better disposed of in independent proceedings, [[^f00243] the judge or district judge as the case may be] may of his own motion or on the application of any party order the counterclaim to be excluded.

Decree where counterclaim is established

8

(1) Where a counterclaim is established against the claim of the plaintiff and there is a balance in favour of one of the parties [[^f00243] the judge or district judge as the case may be] may grant a decree in Form 139; but such a decree shall not be made in a case where Order 21 Rule 4(1)(a) applies.

(2) Subject to Order 21 Rule 4(1)(a), nothing in paragraph (1) shall affect the discretion of [[^f00243] the judge or district judge as the case may be] to award costs in such proportions as he thinks fit.

Misjoinder of plaintiff not to defeat counterclaim

9

Where any person has been improperly or unnecessarily joined as a plaintiff, a defendant who has set up a counterclaim may proceed with the counterclaim against the other plaintiff.

Vexatious or irrelevant question

10

[[^f00243] The judge or district judge as the case may be] may disallow any question put in cross-examination to any party or witness which appears to [[^f00243] the judge or district judge as the case may be] to be vexatious or irrelevant.

Decision of questions without general order for execution of trusts, etc.

11

It shall not be obligatory on [[^f00243] the judge or district judge as the case maybe] in any proceedings—

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

(b) for the execution of a trust;

to give a decree or make an order for the general administration of the estate or execution of the trust, if the questions between the parties can be properly determined without such decree or order.

Injunctions

12

(1) In any proceedings in which an injunction has been or might have been claimed, a plaintiff may, before or after decree, apply for an injunction to restrain the defendant from—

(a) the repetition or continuance of the wrongful act or breach of contract complained of, or

(b) the commission of any wrongful act or breach of contract of a like kind, relating to the same property or right of arising out of the same contract;

and [[^f00244] the judge or district judge as the case may be], in addition to giving a decree for such damages and costs as the plaintiff may be entitled to, may grant the injunction on such terms as may be just.

(2) An application under this Rule may be made—

(a) before the hearing of the action or matter in accordance with Order 14 Rule 6; or

(b) at or immediately after the hearing, in which case the order shall be included in the decree; or

Inspection by judge

13

[[^f00244] The judge or district judge as the case may be] may inspect any property or thing concerning which any question may arise in any proceedings.

PART II — HEARING BY [ DISTRICT JUDGE]

General

14

In the hearing of any action to which this Part applies, the [[^f00245] district judge] shall have and may exercise all the powers vested in [[^f00244] the judge] other than committal for contempt or default.

Proceedings to be heard by the circuit registrar

15

[[^f00246] . . .]

Hearing by circuit registrar

16

Any action intended for hearing by the [[^f00250] district judge] shall, subject to the provisions of Order 26, be heard and determined in like manner as actions are heard and determined by [[^f00249] the judge].

17

Where by reason of death or unavoidable absence the [[^f00250] district judge] is not present at the hearing of any action to which this Part applies the chief clerk or other officer of the court present shall open and adjourn or as the case may be, adjourn the hearing to such day as he thinks convenient.

Decree where defendant does not appear

18

(1) If the defendant (not being the Crown) does not appear, the [[^f00250] district judge], upon proof of service and of facts entitling the plaintiff to relief, may, subject to paragraphs (2) to (4), give such decree or make such order as he considers just.

(2) If the Crown does not appear on the hearing of any civil bill in which it is a defendant, the civil bill shall be adjourned to a date fixed by the [[^f00250] district judge], on such terms as to him may seem just.

(3) Notice of the date fixed shall be served upon the Crown in a manner to be directed by the [[^f00250] district judge] and shall set out that the case will be heard on the date named and such decree given or order made as may seem just, the Crown’s absence notwithstanding.

(4) If the Crown does not appear on the adjourned hearing the [[^f00250] district judge] may, upon proof of service of such notice, proceed to hear and determine the case and may give such judgment or make such other order as to him may seem just.

Records, costs and court fees

19

Subject to Order 26 proceedings heard before the [[^f00250] district judge] shall for all purposes, including records, costs and court fees, be treated in like manner as if they had been heard before [[^f00249] the judge], save that as regards costs, Rule 19(1)(a) of Order 55 shall not apply.

PART III — SETTING ASIDE JUDGMENTS AND ORDERS

New hearing and re-hearing

20

(1) Where in any case it is shown to the satisfaction of [[^f00252] the judge or district judge as the case may be] that a decree has been obtained by fraud, misrepresentation, surprise, mistake or other irregularity, or because the civil bill or other initiating process did not come to the knowledge of the defendant in time, the person against whom the decree was obtained (in this Rule referred to as “the unsuccessful party”) may in accordance with this Rule apply for and obtain a hearing or re-hearing.

(2) An application for a hearing or re-hearing under this Rule shall, subject to paragraph (3), be made by motion ...; notice of such motion shall be lodged in the Office and shall be served on the solicitor for the party in whose favour the decree was obtained (in this Rule referred to as “the successful party”) or, where that party has sued in person, on that party within ten days from the day on which the unsuccessful party or his solicitor has notice of the decree or within such further time as [[^f00252] the judge or district judge as the case may be] may consider reasonable.

(3) Where the notice alleges that the unsuccessful party did not have knowledge of the initiating process or that the process which was sought to be served by post in accordance with the provisions of Order 6 did not come to his knowledge in time to defend the action or to appeal in the matter, then if the chief clerk is satisfied that the successful party consents to a hearing or re-hearing of the case, he may grant the application without the motion being made to the court and in so doing, unless the parties are agreed as to incidence and amount of the costs in the application, may make such order as to costs as he thinks fit.

(4) The notice shall be signed by the unsuccessful party or his solicitor and shall state the grounds upon which the hearing or re-hearing is sought and the nature of the fraud, misrepresentation, surprise, mistake or other irregularity relied upon and the motion shall be moved on the first convenient day after the end of a period of four days from the date of the service of the notice on the successful party or his solicitor.

(5) Except where [[^f00252] the judge or district judge as the case may be] otherwise directs, the service of the notice shall not operate as a stay of execution in the action unless the unsuccessful party lodges in the Office, together with a copy of the notice of motion, the amount for which the decree was made with costs.

(6) If it comes to the notice of the chief clerk that a decree may have been obtained by fraud, misrepresentation, surprise, mistake or other irregularity, he may bring the suspected irregularity to the attention of [[^f00252] the judge or district judge as the case may be] and [[^f00252] the judge or district judge as the case may be] may give such directions or make such further order as he considers just including an order for a hearing or re-hearing of the action.

(7) Upon any hearing or re-hearing under paragraph (1), (3) or (6) such order may be made (whether by way of affirmance, variation or rescission) subject to such conditions as [[^f00252] the judge or district judge as the case may be] thinks proper and on any such hearing or re-hearing the costs shall be in the discretion of [[^f00252] the judge or district judge as the case may be].

(8) Paragraphs (2) to (5) shall apply mutatis mutandis to the parties to a counterclaim.

[ ORDER 26 — Small Claims

Interpretation

1

In this Order—

“the applicant” means the person who makes the initial claim;

“the respondent” means the person against whom the initial claim is made;

“a counterclaim” means a claim which is made by the respondent against the applicant;

“the judge” means the district judge;

“a small claim” means an action to which Article 30(3) of the Order applies;

“small claims court” means a court which processes small claims;

“the small claims office” means the office of the small claims court which will process the small claim;

“the officer” means the person in the court office who processes the application for a small claim; and

“party” means the applicant or the respondent.

Proceedings to which this Order applies

2

No small claims application shall be made with regard to any claim which—

(a) is for damages for personal injuries;

(b) is for damages in respect of a road traffic accident;

(d) is made under Article 11 (Recovery of legacies, annuities, etc.) of the Order;

(e) concerns the title to land;

(f) is made under section 17 of the Married Women’s Property Act 1882;

(g) has been remitted by the High Court.

Commencement of proceedings under Article 30

3

(1) Subject to paragraph (2), where the claim is for a debt or other liquidated amount which does not exceed£5,000, the applicant may proceed by ordinary civil bill provided he includes, immediately after the Warning in the civil bill, the statement in Form 10A.

(2) If the respondent’s notice of intention to defend includes a request that the claim and any counterclaim be dealt with as a small claim, his request shall be granted.

Proceedings to which this Order does not apply

4

An application for a small claim must be made in Form 125.

Where proceeding; may be heard

5

The applicant must complete Part A of Form 125, setting out details of his claim, including any claim for interest under Article 45A of the Order or otherwise.

Application of the Arbitration Act (Northern Ireland) 1937

6

After completing Part A of Form 125, the applicant must bring or send the original Form, together with two copies and the appropriate fee, to any court office and that office will then forward the application on to the small claims office.

Issue of application

7

If there is more than one respondent, the applicant must bring or send one extra copy of Form 125 for each additional respondent.

Award

8

When the relevant forms and the appropriate fee are received in the small claims office, the officer will—

(a) complete Part B of the original Form 125 and the copy forms;

(b) file the original Form 125;

(c) return one copy of Form 125, together with Form 127 (application for default decree for liquidated amount) or 128 (application for default decree for unliquidated amount) to the applicant; and

(d) issue one copy of Form 125, together with Forms 126A (notice of dispute) and 126B (acceptance of liability) to the respondent.

Costs

9

Each court office shall keep a record of—

(a) the applications which are received; and

(b) the small claims office to which those applications are sent.

Interpretation

10

If the respondent intends to defend the claim or rely on a counterclaim he must, within 21 days of receiving the copy Form 125, lodge with the small claims office a notice of dispute in Form 126A which sets out the details of his defence and of any counterclaim he wishes to make, together with the appropriate fee.

ORDER 27 — European Small Claims Procedure

Interpretation

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Where proceedings may be commenced

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Particulars of claim

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Applications

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Issue of decree after postponement order

5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Forms

6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application of Order to conditional sale agreements and saving for other Rules etc.

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ORDER 28 — Payment into court by trustees

Payment into court by trustees

1

(1) Where a person desires to pay money or securities into court under section 63 of the Trustee Act (Northern Ireland) 1958[^f00260] he shall file in the Office an affidavit in Form 132 containing the information required thereby and shall pay the money or securities into court in accordance with Court Funds Rules.

(2) The costs incurred in the payment into court may be retained by the person making the payment into court.

(3) The chief clerk may require in addition to the affidavit such evidence as he thinks proper with regard to the matter in respect of which the payment is made into court.

(4) As soon as he receives it the chief clerk shall endorse on the affidavit a memorandum of the day on which it is filed and the affidavit shall be taken for all purposes to have been duly filed on the day so endorsed on it.

(5) On the filing of the affidavit, the chief clerk shall enter the matter in the books of the court, and shall send to each person mentioned in paragraph 4 of the affidavit at the address given therein a notice of the payment into court in Form 133.

(6) The persons filing the affidavit or any of them may apply to the chief clerk for a certificate in Form 134.

Application for payment out, etc.

2

Where a person desires to apply to the court for the investment or payment out of court of any money or securities paid into court under this Order, the following provisions shall apply—

(a) the application shall be made to [[^f00261] the judge] ex parte:

(b) [[^f00261] the judge] on the hearing of the ex parte application may require notice of the application to be served on such persons as he thinks fit, and fix a day for the further hearing;

(c) evidence in support of the application may be given by affidavit or in such other manner as [[^f00261] the judge] may direct.

ORDER 29 — [ Matrimonial Property Proceedings

1

(1) Where application is made under section 17 of the Married Women's Property Act 1882[^f00016] particulars of the question to be submitted to the decision of the judge shall be filed in the Office and thereupon a summons shall be issued in Form 135 and shall be served together with a copy of the particulars before the beginning of a period of 28 days ending on the entry day.

(2) All proceedings subsequent to the issue of the summons shall be had as if the proceeding had been commenced by an equity civil bill.

2

The judge shall direct what costs are to be allowed.

ORDER 30 — Consumer Credit Act 1974

1

In this Order “the Act” means the Consumer Credit Act 1974[^f00269], 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.

2

Except in relation to any provision of the Act which applies to agreements entered into before 19th May 1985, nothing in this Order shall apply to agreements entered into before that date and the Rules in force immediately before that date shall continue to apply to those agreements.

ORDER 31 — PROCEEDINGS UNDER THE MATRIMONIAL CAUSES (NORTHERN IRELAND) ORDER 1978

1

Where application is made under Articles 35, 38 or 40 of the Matrimonial Causes (Northern Ireland) Order 1978, particulars of the question to be submitted to the decision of [[^f00281] the judge] shall be filed in the Office and thereupon a summons shall be issued in the form specified in Form 137 and shall be served together with a copy of the particulars [[^f00282] not less than 28 days before the date fixed for the hearing].

2

[[^f00281] The judge] shall direct what costs are to be allowed.

ORDER 32 — STATUTORY APPEALS, REFERENCES, APPLICATIONS AND CASES STATED

PART I — STATUTORY APPEALS, REFERENCES AND APPLICATIONS

Appeals

1

(1) This Rule shall apply, with any necessary modifications and subject to the provisions of the relevant enactment, to any appeal not otherwise provided for which under any enactment for the time being in force may lie to a county court against any order, determination, award or other decision of a tribunal (in this Order referred to as an “order”).

(2) Every such appeal (in this Order referred to as an “appeal”) shall be by way of re-hearing and where any question of fact is involved in an appeal, the evidence bearing on such question shall be given orally unless [[^f00283] the judge], as respects that evidence or any part thereof, otherwise directs.

(3) Every appeal shall be brought by notice of appeal intituled in the matter of the relevant enactment and as between the parties to the appeal, and shall set forth the grounds upon which the appellant relies.

(4) [[^f00284] Subject to paragraphs [[^f00285] (4A) to (4D)], every such notice] of appeal shall be served—

(a) within the time provided by the relevant enactment and if no time is so provided then within twenty-one days from the date on which the order was made or within such further period as [[^f00283] the judge], having regard to all the circumstances, may in his discretion allow;

(b) upon every body or person making, or affected by, the order; and

(4A) [^f00286] If the appeal is brought under section 35A or section 40B of the Immigration and Asylum Act 1999 (in this Rule referred to as “the Act”)[^f00287] against a decision of the Secretary of State to impose a penalty under section 32 of the Act or a charge under section 40 of the Act, the appeal notice must, subject to paragraph (4B), be served within twenty-eight days after receiving the penalty notice or charge notice.

(4B) If notice of objection has been given to the Secretary of State under section 35(4) or section 40A(3) of the Act[^f00288] within the time prescribed for doing so, the appeal notice must be served within 28 days after receiving notice of the Secretary of State’s decision in response to the notice of objection.]

(4C) [^f00289] If the appeal is brought under section 11 of the UK Borders Act 2007 (in this rule referred to as “the 2007 Act”) against a decision of the Secretary of State to impose a penalty under section 9(1) of the 2007 Act, the appeal notice must, subject to paragraph (4D), be served within twenty-one days from the date on which the penalty notice was received.

(4D) If notice of objection has been given to the Secretary of State under section 10 of the 2007 Act within the time prescribed for doing so, the appeal notice must be served within twenty-one days from the date on which the notice of the Secretary of State’s decision in response to the notice of objection was received.]

(5) Every appeal shall be entered in the Office by the appellant who shall send by prepaid post to, or leave at, the Office—

(a) a true copy or notice of the order if in his possession; and

(b) a true copy of the notice of appeal and endorsement of each service thereof;

so as to be received in the Office not later than [[^f00290] 28 days before the date fixed for the hearing].

(6) Every appeal shall be to the equity sittings held next after the expiration of a period of fifteen days from the day on which notice of appeal is served.

(7) An appellant may by his notice appeal against the whole or any part of the order and the notice shall state whether the whole or part only, and if part of which part, of the order is impugned.

(8) Upon the entry of an appeal the chief clerk may require the secretary, registrar or other proper officer of the tribunal to furnish to the Office a copy of the order.

(9) The chief clerk may make and issue to any party, or any person interested, a copy of the order.

(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) Subject to the provisions of this Rule, [[^f00291] the judge] shall, in relation to an appeal, have the like powers and authorities as he has in the exercise of the jurisdiction of the court in equity matters.

(12) Subject to the provisions of the relevant enactment and of this Rule, the procedure, rules and practice for the time being in force in county courts with respect to equity proceedings shall apply to every appeal.

References

2

Rule 1 shall with any necessary modifications apply to any matter or proceedings not otherwise provided for where under any enactment for the time being in force any matter, question or issue whether of law or of fact may be submitted or referred to a county court for its opinion or decision.

Applications

3

Any applications (other than an application by way of appeal or reference) under the provisions of any enactment for the time being in force, not otherwise provided for, may be brought either in the manner in which similar or analogous applications are brought in the county court or in the manner (subject to any necessary modifications) in which appeals may be brought under this Order.

PART II — CASES STATED

Application of this Part

4

This Part shall apply, subject to the provisions of the relevant enactment and of the Rules of the Court of Judicature, to any case stated which, under the provisions of any enactment for the time being in force, may be stated for the opinion of the Court of Appeal.

Stating of case

5

(1) The judge may state a case on the application of any party.

(2) An application for a case stated shall be made in the manner and within the time provided by the relevant statute, and if not so provided, then such an application shall be made in writing by delivering it to the chief clerk within a period of [[^f00292] twenty-one days] commencing on the date on which the decision was given and a copy shall be given to the other party.

(3) The written application shall set out the precise point of law involved in the decision with which the applicant is dissatisfied.

(4) Subject to any directions of [[^f00293] the judge] in special circumstances, a case stated shall be prepared by the party applying for it and shall be submitted in draft form to the other party or parties for approval within one month from the day on which [[^f00293] the judge] directs the case to be stated.

(5) The party to whom the draft case is submitted shall within three weeks from the day on which it is submitted to him return it with his observations thereon to the party who prepared it.

(6) Every case stated shall be divided into paragraphs numbered consecutively and shall concisely state such facts and refer to such documents as may be necessary to enable the Court of Appeal to decide any question raised thereby.

Submission and transmission of case

6

(1) The party or parties preparing a case stated shall, within two months from the day on which [[^f00293] the judge] directs the case to be stated or such longer time as [[^f00293] the judge] may allow, submit it to [[^f00293] the judge] for approval and settlement.

(2) Any dispute between the parties as to the contents of the case stated shall be determined by [[^f00293] the judge].

(3) [[^f00293] The judge] shall within two months from receipt of a case stated approve and settle the case and shall—

(a) sign it and insert the date of such signature;

(b) where more than one party applies for a case stated, direct which applicant is to have carriage; and

(4) Subject to paragraph (2), the chief clerk on receiving the signed case stated shall—

(a) endorse thereon the date of receipt; and

(b) transmit to the applicant a signed case with the date of transmission also endorsed.

(5) Where any enactment or any order of [[^f00293] the judge] requires a party having carriage of a case stated to fulfil any condition precedent (whether by way of giving security for costs, or of entering into a recognizance for the due prosecution of the case, or otherwise) to the entry of the case stated in the Court of Judicature, the chief clerk shall not transmit the case to the applicant until that condition has been fulfilled.

(6) Where any such condition precedent is not fulfilled, or the party preparing the draft case does not submit it to [[^f00293] the judge] for approval and settlement, within the time fixed by the enactment or by these Rules or such longer time as [[^f00293] the judge] may allow, the application shall be deemed to be withdrawn and thereupon, if the case was stated—

(a) after the determination of the proceedings, that determination shall stand affirmed;

(b) before the determination of the proceedings, the proceedings, shall stand adjourned until the next succeeding sittings ....

(7) Where the party to whom a draft case states has been submitted under Rule 5(5) makes default in complying with that Rule, the party having carriage may proceed in accordance with paragraph (1).

[ PART IIA — APPEALS FROM MAGISTRATES’ COURTS

Interpretation

7

In this Order the expression—

“enactment” means an Act or statutory instrument or any provision of an Act or statutory instrument;

“Supreme Court” includes any division or judge of that Court;

“tribunal” means any court, authority, body or person making the order.

ORDER 33 — Decrees

Record of decrees

1

The chief clerk shall enter in the books of the court a minute of every decree made by the court.

Interest amount awarded by decree

2

Subject to Article 127 of the judgements Enforcement (Northern Ireland) Order 1981 the amount awarded by decree (not being a penal sum for securing principal and interest) including any interest and costs thereby awarded shall, subject to any direction by [[^f00320] the judge], carry interest at the rate of [[^f00321] 8] per centum per annum from the date on which the decree was made.

Recovery of value added tax

3

(1) Subject to paragraph (2), in a decree there shall be added after the words “witnesses’ expenses” the words “and, in addition, any sum for value added tax recoverable by the plaintiff [or (in the case of a dismiss) defendant]”.

(2) Paragraph (1) shall not apply [[^f00322] . . .] where value added tax is not recoverable by the successful party under Rule 4 of Order 55.

(3) Before serving notice of intent under the judgement Enforcement Rules (Northern Ireland) 1981 to enforce a decree which orders the recovery of value added tax as provided for in Rule 4 of Order 55, the party in whose favour the decree was given shall forward the decree together with a certificate in Form 153 to the Office and the chief clerk shall endorse on the decree a statement to the effect that value added tax in the appropriate amount has been certified.

Lodgment of decree

4

(1) It shall be the duty of the party in whose favour any order is made by [[^f00320] the judge] to forward the appropriate form of decree to the Office for signing and sealing; and, in the event of an appeal, such form of decree shall be lodged a reasonable time before the hearing.

(2) Where the court makes an attachment of earnings order or an order under Article 107 of the Judgments Enforcement (Northern Ireland) Order 1981 or stays enforcement of any decree or order on the ground of the debtor’s inability to pay, the party in whose favour such order or decree is made shall, in addition to complying with paragraph (1), at the same time forward a copy thereof to the Office.

(3) The chief clerk shall, after comparing the form of order or decree referred to in paragraph (1) with the copy forwarded under paragraph (2), certify such copy before transmitting it to the Enforcement of Judgments Office in accordance with Article 116 of the said Order of 1981.

Amounts for which decree issued to be in decimal currency

5

A decree for the payment of a sum of money must state the sum in decimal currency.

Issue of decree

6

—[[^f00323] . . .]

(2) For the purposes of enabling all parties in whose favour a decree is given, either wholly or in part to secure execution thereon, the chief clerk may issue to the parties so entitled such number of decrees as may appear to him requisite to implement the orders of the court; and where more than one decree is or is to be issued there shall be endorsed on the face of every decree issued the words “issued to enable AB to obtain the relief provided for him herein”.

Decrees for debt or damages

7

(1) A decree for debt or damages [[^f00324] . . .] shall be in Form 138.

(2) A decree where a counterclaim has been established shall be in Form 139.

(3) A decree for debt or damages in favour of a minor shall be in Form 140 and an order appointing a guardian to a minor and approving settlement of claims shall be in Form 141.

(4) A dismiss of a civil bill for debts or damages shall be in Form 142.

Decrees for recovery of land

8

(1) A decree for the recovery of land shall be in [[^f00325] Form 56,] Form 143 or Form 144 as appropriate.

(2) A dismiss of a civil bill claiming recovery of land shall be in Form 145.

Stay of execution of decrees in ejectment

9

In all cases of decrees in ejectment, [[^f00326] the judge] may grant such stay of execution as he considers reasonable in the circumstances.

Stay of execution and removal thereof

10

(1) The chief clerk shall endorse or cause to be endorsed on a decree the terms of any stay of execution granted by the court.

(2) A decree shall not issue until such stay be removed.

(3) A party seeking to remove a stay of execution upon default in complying with such terms shall lodge in the Office an affidavit setting out particulars of the default.

(4) Where such default is in the payment of a sum by instalments or some or one of them, the affidavit shall set out particulars of and the amounts of the several instalments (if any) which have been paid and particulars of the default including the amount then due on foot of the decree.

(5) The chief clerk shall, before issuing a decree, write and sign or cause to be written and signed on the face of the decree a statement that the stay of execution has been removed.

(6) [^f00327] Where the decree is such as is referred to in paragraph (4), the statement shall specify the total amount of the instalments (if any) paid to the date of the affidavit lodged under paragraph (3) and the decree shall issue for the whole amount remaining due on foot of the decree after deducting such instalments (if any) as have been paid thereunder as shown in the said affidavit but with the addition to the costs therein stated of a sum of £10.00

(7) [^f00328] In the application of this rule to decrees issued under Order 26, references to “affidavit” shall be construed as references to a “statement of truth” and paragraph (6) shall be read as if the words from “but with” to the end were omitted.]

Decree for balance of rent and costs under section 61 of the Landlord and Tenant Law Amendment Act, Ireland, 1860

11

A decree for the balance of rent and costs under section 61 of the Landlord and Tenant Law Amendment Act, Ireland, 1860[^f00329] shall be in Form 146.

Decree for payment of legacy or a distributive portion of the assets of an intestate

12

A decree for payment of a legacy shall be in Form 147 and a decree for payment of a distributive portion of the assets of an intestate shall be in Form 148.

Decrees in action of detinue

13

In actions [[^f00330] for wrongful interference with goods] the decree, if for the plaintiff—

(a) may be in Form 149 and may be for the value of the goods detained together with a sum to be stated in the decree by way of damages for the detention and costs, but it may be part of the decree that the decree shall not issue if the defendant on or before a named day pays a specified sum for damages for the detention and costs and also returns the goods to the plaintiff and if the plaintiff accepts the same;

(b) may be in Form 150 and may order the return of the goods, detained together with a sum to be stated in the decree by way of damages for the detention and costs.

Decree rectifying or setting aside deed

14

A decree rectifying a deed shall be in Form 151 and a decree setting aside a deed shall be in Form 152.

Order for preparation and execution of a deed

15

Where an order directs any deed to be prepared and executed, it shall state by what party the deed is to be prepared and to whom it is to be submitted for approval and who is to bear the costs thereof; and if the parties cannot agree as to the form of the deed, [[^f00331] the judge] may, on the application of either party, settle the same himself or name counsel by whom the same is to be settled, subject to the final approval of [[^f00331] the judge] and his discretion as to costs.

Sale of land

16

(1) Where any land is ordered to be sold, the order shall direct who is to have the conduct of the sale, where the sale is to be held and by whom the conditions and contracts of sale and the abstract of title, if any such are necessary, is to be prepared.

(2) Where any land is ordered to be sold, any party bound by the order and in possession of the estate, or in receipt of the rents or profits thereof, shall be compelled to deliver up possession or receipt to the purchaser, or such other person as may be named in the order.

(3) Unless otherwise ordered, where an order is made directing any land to be sold—

(a) the land shall be sold with the approval of [[^f00332] the judge] or subject to a reserved price fixed by the court at the best price that can be got;

(b) all such parties as [[^f00332] the judge] directs shall join in the sale and conveyance and, where any party refuses or neglects to sign any necessary document, [[^f00332] the judge] may make an order vesting the land or authorising a specified person to sign such document on behalf of the party so refusing or neglecting; and

(c) the person authorised by the conditions of sale to receive the purchaser’s deposit shall forthwith upon the privity of the Accountant General lodge the amount of such deposit in accordance with Court Funds Rules and when the sale is complete the balance of the purchase money shall be lodged in like manner.

(4) A sale retained within the court shall be conducted in accordance with this Rule and Rule 18 and Order 34.

Sale of personal property

17

(1) Where an order directs any personal property to be sold, the property shall be sold by public auction or private contract as [[^f00332] the judge] directs and shall, unless otherwise ordered, be sold with the approval of [[^f00332] the judge] at the best price that can be got.

(2) Where any personal property is directed to be sold by public auction or to be detained or preserved, a receiver or such other person as [[^f00332] the judge] directs shall, if [[^f00332] the judge] so directs, superintend the sale, detention or preservation, and, where such property is directed to be sold by private contract, it shall be the duty of the receiver or other person as aforesaid unless [[^f00332] the judge] otherwise directs, to see that the directions of [[^f00332] the judge] are carried out.

(3) This Rule shall not apply to an execution which is required to be made by the Enforcement of Judgments Office under a decree to which the Judgments Enforcement (Northern Ireland) Order 1981 applies.

Form of affidavit of value

18

Where an affidavit is made for the purpose of enabling the court to fix reserve biddings, the value of the property shall be stated in an exhibit so as not to be disclosed by the affidavit when filed.

Proof of payment of duty payable

19

Before making any payment under or issuing an order directing the payment or transfer of any fund in respect of which any death duties are payable to the revenue it shall be the duty of the chief clerk to require a certificate from the proper officer of, or the production of the receipt for, the payment of the duty chargeable in respect of the fund.

Order of High Court

20

Where the High Court has heard and determined an appeal from a decree of a county court, the party entitled to the benefit of the order made on appeal shall deposit in the Office the order of the High Court or an office copy thereof.

ORDER 34 — Sale Of Land By The Court

Application of this Order

1

This Order shall apply to the conduct of a sale which is to be retained within the court.

Approval of [ judge] or reserved bidding

2

The sale shall be subject to the approval of [[^f00333] the judge] or to a reserved bidding to be fixed by the court.

Counsel, valuers and auctioneers

3

[[^f00333] The judge] may from time to time appoint court conveyancing counsel, court valuers and court auctioneers either generally or for particular sales at such scales of fees as he may fix; and in default of any such appointments by [[^f00333] the judge], the [[^f00334] district judge] may nominate or approve appointments for particular sales.

Bidding by parties

4

A party to the suit shall not bid at the sale unless liberty to bid is given in the order for sale or the permission of [[^f00333] the judge] is obtained on application made on notice to the other parties to the suit.

Lodgment and approval of documents

5

(1) The solicitor for the party having carriage shall lodge in the Office for the approval of the [[^f00334] district judge] and his directions thereon—

(a) all documents of title in his possession or power;

(b) unless dispensed with by the [[^f00334] district judge], the abstract of title;

(d) a draft advertisement; and

(e) if so directed by the [[^f00334] district judge], a draft case for court counsel, drawing attention to any difficulties in connection with the title or the actual occupation of the property requiring special mention in the conditions of sale.

(2) The above documents when approved by the [[^f00334] district judge] together with a copy of the certificate of the [[^f00334] district judge] on has inquiry as to incumbrancers shall, if so directed by him, be submitted to court counsel and, where no such direction is given, the documents mentioned in Rule 7 may be lodged for approval in the Office at the same time as the documents mentioned in paragraph (1).

Joining of persons not before the court

6

If counsel advises that any person necessary to make title is not before the court, the consent of such person to the sale and his undertaking to join in the purchase deed shall be procured in writing, and his signature verified by affidavit and failing such consent, notice of the order for sale shall be served on such person.

Procedure following return of papers from counsel

7

On receiving the papers back from counsel, the solicitor having carriage shall—

(a) re-lodge the papers in the Office for settling and fixing of dates by the [[^f00335] district judge] and shall at the same time lodge—

(i) draft form of affidavit to be made by the court valuer in Form 155;

(ii) draft reserved bidding report in Form 156, to be marked as exhibit “B” to such affidavit;

(iii) an envelope marked “B” and endorsed with the title of the suit, to contain the valuer’s reserved bidding report when completed;

(iv) draft auctioneer’s affidavit of biddings in Form 157; and

(v) draft bidding paper in Form 158; and

(b) send to the court valuer a copy of the advertisement and the documents mentioned in sub-paragraphs (i) to (iii) of paragraph (a) together with a covering letter instructing him as to—

(i) the completion and return to the solicitor of the affidavit mentioned in paragraph (a)(i) with the copy advertisement marked as exhibit “A” thereto; and

(ii) the completion and forwarding to the Office, before the date fixed for the sale, of the reserved bidding report mentioned in paragraph (a)(ii), which report shall be marked as exhibit “B” to the affidavit.

Attendance at sale

8

The solicitor having carriage shall attend the sale and arrange for the completion by the court auctioneer of the documents mentioned in Rule 7(a)(iv) and (v), and relodging of all papers in the Office.

Where sale is subject to approval of [ judge]

9

Where a sale is subject to the approval of [[^f00336] the judge]—

(a) the certificate of the [[^f00335] district judge] shall be in Form 159; and

(b) the solicitor having carriage shall on notice to the proposed purchaser and the other parties make application to [[^f00336] the judge] by notice of motion in Form 160 for confirmation of the sale, and [[^f00336] the judge] may either confirm the sale by order in Form 161 or make such other order thereon as he thinks fit having regard to the court valuer’s report and the biddings.

Where sale is subject to reserved price

10

(1) Where the sale is subject to a reserved price fixed by the court, the purchaser or his solicitor may attend the sitting of the [[^f00335] district judge] on the day fixed by the advertisement, and if there be any objection to the confirmation of the sate it shall be stated at that sitting.

(2) Where the reserved price fixed by the court has been reached the [[^f00335] district judge] may confirm the sale by certificate in Form 162 and direct that the deposit be forthwith lodged in court to the credit of the suit, and the certificate of the [[^f00335] district judge] confirming the sale shall be binding on all parties from the date thereof unless it is discharged or varied on application to [[^f00336] the judge] by notice of motion made before the expiration of eight days from that date.

(3) Where the [[^f00335] district judge] refuses to confirm the sale, he shall certify his refusal in Form 16 and direct that further proceedings shall be by way of either—

(a) an application to [[^f00337] the judge] under Rule 9; or

(b) advertisement for re-sale by tender, subject to the approval of [[^f00337] the judge] with such consequential directions thereon as he considers necessary;

and where he directs further proceedings under paragraph (b) he shall order the return of the deposit made by the highest bidder.

Order for execution of conveyance or for possession

11

A notice of motion for an order for the execution of a conveyance or for possession shall be in Form 164, an order for the execution of a conveyance shall be in Form 165 and an order to put a Purchaser in possession shall be in Form 166.

ORDER 35 — Ejectment Proceedings

Record of ejectments

1

(1) The chief clerk shall enter in a book to be kept for that purpose particulars of all decrees in ejectment and for each such decree shall enter the names of the plaintiffs and defendants and the tenements recovered as specified in the civil bill concerning the same.

(2) The book kept under paragraph (1) shall be open for inspection during the hours when the Office is open on payment to the chief clerk of the prescribed fee.

Amount of rent due

2

At the hearing of every ejectment proceeding for non-payment of rent, the chief clerk shall enter in the ejectment book the sum of money ascertained to be due and owing for rent, and the time up to which the same is due and the chief clerk, before he signs his name to such decree, shall compare with such entry the statement in the decree in such ejectment of the amount of rent so ascertained to be due; and the clerk shall certify on such decree the amount of rent so ascertained, and the date up to which the same is due.

Costs

3

[[^f00338] The judge or district judge as the case may be], upon the hearing of any ejectment proceedings where there is more than one defendant, may order that the costs of the proceedings shall be paid by and recovered from one or more of such defendants and not from the other or others of them.

Restitution

4

(1) Where the defendant in ejectment proceedings for non-payment of rent, or any other person evicted by a decree for possession had in such ejectment proceedings, is entitled to redeem the lands and is desirous to obtain an order of restitution to be restored to the possession of the land after such decree has been executed, such person shall serve a notice upon the plaintiff the said ejectment proceedings, in Form 167, [[^f00339] not less than 28 days before the date on] which the application for such order of restitution is intended to be made.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The order of restitution, ordering a defendant to be restored to the possession of lands from which he had been evicted by a decree in ejectment proceedings for non-payment of rent, shall be in Form 168.

(4) When notice of an application for an order of restitution has been served pursuant to the said section [[^f00342] 94] the plaintiff in the ejectment proceedings, if he intends claiming any rent not included in the ejectment decree, or which may have become due since the signing of the decree, shall give three days’ notice of his intention to the party so applying for such order of restitution.

(5) Where a decree for possession in ejectment proceedings for non-payment of rent has been executed, and the landlord has been put into possession, [[^f00343] . . .] any further rent has become due in respect of said lands, the party applying to the court for an order of restitution to be restored to the possession of the said lands mentioned in the said decree for possession shall, before such order of restitution issues, pay over or lodge in court such further rent as may be awarded by the court, in addition to the sum ascertained by the said decree to be due for rent and costs.

(6) Where the landlord has been put into possession of lands under a decree for possession in ejectment proceedings for non-payment of rent, and the tenant or party entitled to apply for an order of restitution requires such landlord to account for the profits of the lands received by him whilst he was so in possession, such tenant or party so applying for an order of restitution shall, in the notice that such application will be made, inform the landlord that he will be called on to account, at the hearing of the application for such order of restitution, for such profits.

(7) Where there are several defendants in ejectment proceedings for non-payment of rent, and a decree is made ordering the costs to be paid by some or one of the defendants to the exclusion of the others, should the parties or party who are so exonerated from the payment of costs by such decree apply for an order of restitution to be restored to the possession of the premises after such decree has been executed, they or he shall in addition to the rent and arrears of rent due out of said premises, lodge in court the costs payable to the plaintiff in the suit, if not previously, paid.

ORDER 36 — Partition Suits

Abstract of title

1

The plaintiff in a partition suit shall, at the time of lodging the civil bill, also lodge therewith a short abstract of title to the lands sought to be partitioned, which abstract shall show the respective shares a estates which the several owners are alleged to have in the lands.

2

If the lands sought to be partitioned are held subject to any agreement or condition restraining or prohibiting assignment or subdivision, or if they form part of an estate upon which the assignment or subdivision of holding without the consent of the landlord is contrary to or not warranted by the practice prevalent upon such estate, the plaintiff shall at the hearing produce the consent in writing of the landlord, or his agent duly authorised for that purpose that the lands in the civil bill mentioned be partitioned or sold as the court may direct.

3

If the lands sought to be partitioned are charged with any advance repayable to the Department of Finance, in manner provided by any statute authorising the advance of public money to tenants upon the security of their holdings, the plaintiff shall at the hearing produce the consent in writing of that Department, that the lands in the civil bill mentioned be partitioned or sold as the court may direct.

Examination of and report on lands

4

In partition suits [[^f00344] the judge] may employ a surveyor or other person to examine the lands sought to be partitioned, and to report in writing to [[^f00344] the judge], by a day to be named, the manner in which, according to the opinion of such surveyor or other person, the lands should be partitioned, and the report shall be accompanied by a map showing the boundaries of the lands proposed to be partitioned.

(2) The surveyor or other person appointed shall be remunerated by the parties to the suit or such of them as [[^f00344] the judge] may direct.

(3) The report of the surveyor or other person appointed under paragraph (1), together with said map, shall be lodged by him in the Office at least fifteen days before the day named for making the report to [[^f00344] the judge].

(4) The report and map when lodged in the Office shall be open to the inspection of all parties to the suit without payment of any fee.

Decree

5

[[^f00344] The judge] may either adopt such report, and make a decree in accordance with the terms thereof, or may make such other decree as he may think fit.

ORDER 37 — Applications under section 37 of the Landlord and Tenant Law Amendment Act, Ireland, 1860

Notice of application

1

A notice of application to annul or vary a precept, order or conviction under section 37 of the Landlord and Tenant Law Amendment Act, Ireland, 1860[^f00345] (in this Order referred to as “the Act of 1860”) shall be in Form 169 or Form 170 and shall be served [[^f00346] not less than 28 days before the date fixed for the hearing].

Claim for compensation

2

Where a party claims compensation for any loss or damage caused by the procuring of a precept or order mentioned in section 35 of the Act of 1860, he shall serve notice in Form 171 on the opposite party from whom he claims the compensation [[^f00346] not less than 28 days before the date fixed for the hearing].

Venue and service of notices

3

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) A notice under Rule 1 or Rule 2 shall be served and entered in like manner as a civil bill.

ORDER 38 — Administration of estates

Lodgment of accounts by representatives of a deceased person

1

(1) Accounts lodged in accordance with Article 17 of the Order shall set out—

(a) particulars of the property or assets which the testator or intestate died possessed of or entitled to;

(b) the amount, produce and value of such property and assets respectively;

(d) the amounts, and particulars of the debts, legacies and funeral and testamentary expenses of the testator or intestate paid by or on account of the executor or administrator;

and shall show the balance applicable to the purposes of the will of the testator or, as the case may be, distributable amongst the next-of-kin of the intestate, or the property or the chattels then undisposed of.

(2) The accounts shall be signed by the executor or administrator and verified on oath by the executor or administrator.

(3) The accounts shall be lodged in the Office within one month from the date when he has been required in writing to do so by any person entitled so to require under Article 17 of the Order within such extended time as the chief clerk may direct.

Power to order advertisements

2

(1) In any proceeding for a legacy or distributive share of the property or assets of a testator or, intestate, [[^f00347] the judge] may order the party suing to give notice, either by advertisement or otherwise, requiring persons having claims on or against the property and assets of the deceased to produce and verify such claims.

(2) All costs relating to such notice shall be borne and paid in such manner and by such parties as [[^f00347] the judge] shall direct.

(3) [[^f00347] The judge] may adjourn the hearing of the proceedings to some future sittings and from time to time as occasion may require so as to allow sufficient time for publishing and giving such notice.

Lodgment of money in court

3

In any proceedings for a legacy or distributive share of the property or assets of a testator or intestate, [[^f00347] the judge] may, if he thinks fit, order money to be paid into court in accordance with Court Funds Rules.

Administration suits

4

(1) An administration suit may be commenced at any time after the death of the testator or intestate.

(2) Subject to Rules 2 and 3 of Order 36 [[^f00347] the judge] in administering the estate of a deceased person shall not be bound, for the purpose of distribution of any land, to sell and convert the land but may partition the land among the persons entitled to shares of the estate and for equality of partition may make a decree against any one or more of such persons for any excess in the value of the part or parts allotted to him or them.

ORDER 39 — Actions by and against firms and persons carrying on business in firm names

Partners may sue and be sued in name of their firm

1

(1) Two or more persons claiming or alleged to be liable as partners and carrying on business within Northern Ireland may sue and be sued in the name of the firm in which they were partners when the cause of action arose.

(2) Where partners sue or are sued in the name of their firm in accordance with this Rule, a statement that the plaintiffs are suing or the defendants are sued as a firm shall be included in the civil bill and in the title of the action.

(3) Where partners sue or are sued in the name of their firm, the partners shall, on demand made in writing by or on behalf of any other party, forthwith deliver to the party making the demand a statement of the names and places of residence of all the persons constituting the firm.

(4) If the partners fail to comply with the demand, [[^f00348] the judge or district judge as the case may be] may, on application by any other party, order them to furnish and verify by oath or otherwise a statement of the names and places of residence of the persons who were partners in the firm when the cause of action arose.

(5) If the partners fail to comply with the order, [[^f00348] the judge or district judge as the case may be] may—

(a) if the partners are plaintiffs, direct the proceedings to be stayed until the order is complied with;

(b) if the partners are defendants, order that they be debarred from defending the action.

(6) When the names and places of residence of the partners have been stated, proceedings shall continue in the name of the firm.

Action not in firm name

2

Nothing in Rule 1 shall prevent partners from suing or being sued otherwise than in the firm name.

Actions between a firm and its members

3

The provisions of these Rules as to actions by or against firms shall apply to actions between a firm and one or more of its members, and between firms having one or more members in common, if the firm carries on business within Northern Ireland, but no enforcement proceedings shall be taken without leave of [[^f00348] the judge or district judge as the case may be], and on an application for leave to take such proceedings all such accounts and inquiries may be directed to be taken and made and all such directions may be given as may be just.

Individuals carrying on business

4

A person carrying on business [[^f00349] in Northern Ireland] in any name may [[^f00349] (whether or not he is within the jurisdiction)] be sued in that name as if it were a firm name, and so far as the nature of the case will permit, all the provisions of these Rules relating to actions against firms shall apply.

Service of civil bill on partners

5

(1) Subject to the following paragraphs of this Rule, where partners are sued in the name of their firm, service of a civil bill shall be good service on all the partners, whether any of them is out of Northern Ireland or not, if the civil bill is served—

(a) on a partner personally, or

(b) at the principal place of the partnership business in Northern Ireland, on any person having, or appearing to have, at the time of service, the control and management of the business there; [[^f00350] or]

(c) [^f00350] by post (as provided by Order 6 Rule 3(2)(b)) at the principal place of the partnership business in Northern Ireland;]

but where the partnership has, to the knowledge of the plaintiff, been dissolved before the commencement of the action, the civil bill shall be served upon every person within Northern Ireland sought to be made liable.

(2) Where a person carrying on business in a name other than his own is sued in that name as if it were a firm name, the civil bill may be served in accordance with the, foregoing provisions of this Rule as if he were a partner sued in the name of a firm and his business were a partnership business.

(3) Where a civil bill is served in accordance with this Rule, the endorsement or affidavit of service shall state whether the person served was served—

(a) as a partner; or

(b) as a person carrying on business in a name other than his own; or

(d) as a person occupying a dual position.

Execution of decree against a firm

6

(1) A decree against a firm may be enforced—

(a) against any property of the partnership in Northern Ireland;

(b) against any person who has been adjudged to be liable as a partner;

[[^f00351] where he has not served a notice of intention to defend in Form 42 and judgment has been entered in accordance with Order 12 or where he has failed to appear at the hearing.]

(2) If the person who has obtained the decree claims to be entitled to enforce it against a partner or otherwise, he may apply to [[^f00352] the judge or district judge as the case may be] for leave so to do, and the following provisions shall apply—

(a) he shall give to the alleged partner not less than three days’ notice of his application;

(b) the notice shall be served on the alleged partner personally;

(i) if liability is not disputed, may give leave for application to be made for enforcement under the Judgments Enforcement (Northern Ireland) Order 1981[^f00353];

(ii) if liability is disputed, may order the issue of liability to be tried in such manner as he thinks fit and may give any necessary directions for that purpose.

Proceedings under Articles 106 to 110 of the Judgments Enforcement (Northern Ireland) Order 1981

7

In Order 40, Part III, the expression “debtor” includes any person liable to execution under the foregoing provisions of this Order.

ORDER 40 — Enforcement of decrees

PART I — GENERAL

Examination of any party

1

Where any difficulty arises in or about the execution or enforcement of any decree for some relief other than the payment of money, the court may, except where, under Article 11 of the Judgments Enforcement (Northern Ireland) Order 1981 jurisdiction to grant such relief is vested in the Enforcement of Judgments Office, on the application of any party interested, make such order for the attendance and examination of any party or otherwise as may be just.

Application on change of parties after decree

2

(1) Where any change has taken place after decree, by death, assignment, or otherwise, in the parties entitled to enforce the decree or in the parties liable under a decree, the party claiming to be entitled to enforce the decree may apply on affidavit to the court for leave to issue an amended decree on surrender of the original decree and the court may, if satisfied that the party so applying is so entitled, order accordingly.

(2) [[^f00354] The judge] may, before making an order under paragraph (1), require such notice of the application to be served as he thinks fit.

(3) Notwithstanding anything contained in Order 1, the application referred to in paragraph (1) may be made to the court in which the order was made.

PART II — ENFORCEMENT BY COMMITTAL

Enforcement by committal

3

Decrees which under Article 55(4) of the Order and Order 57 Rule 5 are enforceable by committal may be enforced in the manner provided by Order 57 Rule 7.

PART III — PROCEDURE UNDER ARTICLES 106 TO 110 OF THE JUDGMENTS ENFORCEMENT (NORTHERN IRELAND) ORDER 1981

Enforcement civil bill

4

(1) Proceedings under Article 107 of the Judgments Enforcement (Northern Ireland) Order 1981 where no instalment order has been made by the Enforcement of Judgments Office under Article 30 of that Order shall be commenced by a civil bill in Form 172 (in this Order referred to as an “enforcement civil bill”) requiring the debtor to appear personally before the court on the date therein specified.

(2) On the hearing of an enforcement civil bill [[^f00354] the judge] may make—

(a) an order in Form 173 (in this Order referred to as an “enforcement order”) requiring the debtor to pay the amount due in such manner or by such instalments as [[^f00354] the judge] thinks fit; or

(b) such an order committing the debtor to prison as may be made under Rule 5(2).

Committal civil bill

5

(1) if the debtor makes default in paying the amount, or any instalment ordered under Rule 4 to be paid or due under an instalment order made by the Enforcement of Judgments Office under Article 30 of the Judgments Enforcement (Northern Ireland) Order 1981, the creditor may serve on the debtor a civil bill (in this Order referred to as a “committal civil bill”)

(2) A committal civil bill shall be in Form 174 and, shall set out—

(a) full particulars of the enforcement order which has not been complied with or of the order made under the said Article 30; and

(b) the amount or instalment (or instalments) in the payment of which default has been made;

and shall require the debtor to appear personally on the date and before the court therein specified, to show cause why he should not be committed to prison for his default in complying with that order. An order made under this Rule is in this Order referred to as a “committal order”.

Service of civil bills and hearing of proceedings under rules 4 and 5.

6

(1) Enforcement civil bills and committal civil bills shall be served personally on the debtor.

(2) Proceedings under Rules 4 and 5 shall be entered and conducted as if they had been commenced by ordinary civil bill, and county court rules and orders regulating procedure in relation to ordinary civil bills shall apply accordingly in so far as they are not inconsistent.

(3) Where proceedings under Rule 4 or Rule 5 are taken to enforce—

(a) a decree of a county court, the decree shall be produced in court at the hearing of the proceedings;

(b) a judgment or decree of any court other than a county court, a certified copy, or other sufficient evidence of such judgment or decree shall be so produced;

and where proceedings are taken under Rule 5 to enforce an order made by the Enforcement of Judgments Office under Article 30 of the Judgments Enforcement (Northern Ireland) Order 1981, a duly authenticated copy of the order shall be produced in court at the hearing.

(4) Upon the hearing of every enforcement civil bill and committal civil bill [[^f00355] the judge] may require evidence of any proceedings theretofore taken for the enforcement of the judgment or decree.

Committal order

7

(1) A committal order—

(a) shall be in Form 175;

(b) shall bear the date on which it was made; and

(2) A committal order shall be addressed to the Chief Superintendent or, as the case may be, Superintendent for the Constabulary Division in which the debtor resides or is to be found.

Discharge from custody

8

(1) A debtor taken into custody under a committal order shall not be released from custody unless he pays to the constable or the governor of the prison to which he is committed the full amount of the debt or instalment in respect of which such order was made and the costs of the order or upon receipt by the governor of the certificate of discharge prescribed under paragraph (5).

(2) A constable or prison governor to whom a sum of money is paid by a debtor in accordance with paragraph (1) shall issue to the debtor a receipt therefor and shall endorse on the committal order a certificate of the amount he has received and the date thereof and the constable or prison governor shall sign his name at the foot of the certificate.

(3) Such sum shall be transmitted forthwith together with the committal order certified in accordance with paragraph (2) to the chief clerk of the court which issued the order and the amount of such sum shall be entered into a record book kept for the purposes of this Rule and then transmitted to the creditor or his solicitor forthwith.

(4) The creditor or his solicitor on receiving the sum transmitted to him by the chief clerk under paragraph (3) shall send him a receipt therefor.

(5) The certificate prescribed for the purposes of Article 109 of the Judgments Enforcement (Northern Ireland) Order 1981 shall be in Form 176 signed by the solicitor for the creditor, or signed by the creditor and attested before a justice of the peace or a commissioner for oaths, that there has been paid to or on account of the creditor by or on behalf of the debtor—

(a) the debt or instalment in respect of which he was imprisoned;

(b) the costs of the committal order;

and the creditor or his solicitor shall, if the debtor so requires, furnish to the debtor a copy of such certificate.

PART IV — CHARGES UNDER ARTICLE 46 OF THE JUDGMENTS ENFORCEMENT (NORTHERN IRELAND) ORDER 1981

Proceedings under Article 14(c) of the County Courts (Northern Ireland) Order 1980 respecting land charged under Article 46 of the Judgments Enforcement (Northern Ireland) Order 1981

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