District Court Rules

ORDER 43

JOINING CLAIMS AND PARTIES

1 — DEFINITIONS

1 Definitions

1. In this Order—

‘birth certificate’ means a certified extract from the Register of Births showing the date of a person’s birth;

‘person under a disability’ means a child or a person of unsound mind.

2 — JOINING CLAIMS

2 Joining claims

2. (1) Two or more claims may be made in one originating document, either alternatively or otherwise, so long as the claims are not mutually inconsistent or based on inconsistent allegations of fact.

(2) Despite sub-rule (1), if it appears to the Court that claims joined in a civil proceeding cannot be conveniently tried together, the Court may order separate trials or may exclude any claim, and may order the necessary amendments, and may make such order as to costs as the Court considers just.

3 — JOINING MULTIPLE PARTIES

3 Joining claimants

3. (1) All persons may join as claimants in one civil proceeding in whom any right to relief arising out of the same transactions is claimed to exist, whether jointly, severally, or in the alternative, where, if all of those persons brought separate civil proceedings, a common question of law or fact would arise, but the total amount awarded in a civil proceeding on any single claim form may not exceed the maximum amount which the Court has jurisdiction to award in a civil proceeding, regardless of the number of claimants who may share in, or be awarded a portion of, that amount.

(2) Despite sub-rule (1), if the Court is satisfied on an application by a respondent by notice of motion, that joining all of those persons may embarrass or delay the trial, the Court may order separate trials, or make such other order as it considers just.

(3) When numerous persons have the same interest in one claim (whether as claimants or as respondents), one or more of those persons may sue or be sued, or may be authorised by the Court to defend, in the civil proceedings, on behalf of or for the benefit of all of the interested persons.

(4) sub-rule (2) does not apply to claims in tort.

(5) No person may be made a claimant without his or her consent.

4 Joining respondents

4. (1) All persons may be joined as respondents in one civil proceeding against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative.

(2) When the claimant is in doubt as to the person from whom he is entitled to redress, he may join two or more respondents, to the intent that the question as to which, if any, of the respondents is liable, and to what extent, may be determined as between all parties.

(3) When a person residing outside the Court district within which the civil proceedings must be begun under any enactment or these Rules, but within the State, is a necessary and proper party to a civil proceeding properly begun in the Court against a person within the Court district, the first mentioned person may be served with the claim notice or other document without special permission of the Court.

(4) It is not necessary that every respondent be interested in resisting all or every relief sought, or in defending every cause of action included in a civil proceeding in which he or she is a respondent; but the Court may make any order which it considers just, to prevent any respondent from being embarrassed, or put to unnecessary expense, by being required to attend any hearing or application in which he or she has no interest.

5 Respondents to a claim in contract

5. The claimant may, at his or her option, join as respondents to the same civil proceeding all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.

6 Court may join necessary parties

6. (1) No claim or cause of action may be defeated by reason of the failure to join particular persons as parties.

(2) The Court may in every civil proceeding deal with the subject in controversy so far as regards the rights and interests of the parties actually before the Court.

(3) The Court may, at any stage of civil proceedings, either on or without the application of any party, and on such terms as the Court considers just, make an order:

(a) striking out the name of any party, whether claimant or respondent, who has been improperly joined, or

(b) adding as a claimant or as a respondent the name of any person who ought to have been joined as a party, or whose presence before the Court may be necessary in order to enable the Court to adjudicate on and settle all the questions involved in the civil proceeding.

(4) A person may not be added as a claimant:

(a) without his consent in writing, or

(b) if the person is under a disability, without the appointment of a guardian ad litem or next friend, who must give his or her consent in writing to act in that capacity.

(5) Every person whose name is added as a respondent must be served with the claim notice in the manner prescribed by an order of the Court or otherwise in a manner permitted by Order 41.

(6) A civil proceeding must be taken to have been begun against a person added as a respondent:

(a) on the date of the filing by a claimant of an application to join the party or

(b) where the Court does so of its own motion on the making of the order by the Court adding that person as a respondent.

(7) The Court may not of its own motion add a respondent without the consent in writing of all claimants.

4 — PARTIES UNDER A DISABILITY

7 Court may appoint next friend or guardian ad litem

7. (1) When civil proceedings have been brought on behalf of or against a person under a disability, the Court may appoint a next friend or guardian ad litem to act for or on behalf of the person under a disability.

(2) The Court may change a next friend or guardian ad litem, and appoint another person in his or her place.

8 Child may sue by next friend

8. (1) A child may sue by his or her next friend appointed for that purpose.

(2) Where a child sues by his or her next friend, a written authority signed by the proposed next friend (Form 43.01, Schedule C) authorising the commencement and conduct of the civil proceeding on behalf of the child and the use of the name of the proposed next friend as next friend must be filed with the claim notice.

9 Child may defend by guardian ad litem

9. (1) A child may defend by his or her guardian ad litem appointed for that purpose.

(2) Where a child defends by his or her guardian ad litem, a written authority signed by the proposed guardian ad litem authorising the conduct of the defence of the civil proceeding on behalf of the child and the use of the name of the proposed guardian ad litem as guardian ad litem must be filed with the appearance and defence.

10 Person of unsound mind may sue by committee or next friend and may defend by committee or by guardian ad litem

10. A person of unsound mind whether or not so found by inquisition may sue by his or her committee or next friend, and may defend by his or her committee or by a guardian ad litem appointed for that purpose.

11 Compromise of claim by a person under disability

11. (1) If in a civil proceeding a claim is made by or on behalf of or against a person under a disability, no compromise, payment of money or acceptance of an offer, whenever entered into or made, so far as it relates to that claim, is valid without the approval of the Court.

(2) Application for approval must be by notice of motion (which may be in the Form 43.02, Schedule C, with the necessary modifications) filed not later than 28 days after the compromise, payment or acceptance.

(3) No affidavit is required in support of the notice of motion.

(4) The Court may dispense with the requirement of a notice of motion if the application for approval is made at the hearing of the civil proceeding.

(5) On the application, evidence must be given of the date of the compromise, payment or acceptance and the date of birth of the person under disability, and the dates must be stated in any order approving the compromise, payment or acceptance.

(6) If the acceptance of an offer of compromise is approved, the person under a disability must be taken to have made or accepted the offer at the time of approval.

12 Court may direct investment of an award to a child

12. (1) The Court may, subject to the provisions of Order 12A, direct that any money or other personal property to which a child is declared entitled in proceedings before the Court, or the proceeds of any order to pay to a child issued under the Personal Injuries Assessment Board Act 2003, be secured or invested for the benefit of the child in the manner the Court considers advisable.

(2) A copy of any order made under this rule must, where appropriate, be sent by the Clerk to the Accountant.

13 Interim payments

13. (1) Unless the Court otherwise decides, no interim payment out of any money secured or invested on behalf of a child may be made except under an order of the Court made on the application of the child’s next friend or guardian ad litem.

(2) An application for an interim payment may be made by motion (which may be in the Form 43.03, Schedule C) at any sitting of the Court for the Court district in which the civil proceedings were heard.

14 Proceeding in own name on attaining majority

14. When a child attains majority while proceedings to which this Order relate are still before the Court, an application may be made ex parte by the former child’s solicitor, next friend or guardian ad litem at any sitting of the Court for the Court area in which the proceedings are being heard for an order that the claimant or respondent, formerly a child, may proceed or defend in his or her own name.

15 Payment out of sums invested on attaining majority

15. (1) A person who, on attaining majority, seeks the payment of any money which was secured or invested for his or her benefit while the person was a child, may, where the order directing investment of the award to the child so provides, apply for payment out by request in writing to the Clerk (which may be in the Form 43.04, Schedule C) and:

(a) producing to the Clerk his or her birth certificate and a form of identifying document including a photograph of the person sufficient to identify the person as the person entitled to payment, and

(b) filing with the Clerk a certified copy of his or her birth certificate.

(2) If satisfied by the production of the person’s birth certificate and other identifying document, and any other information the Clerk in his or her discretion requires, the Clerk may authorise payment out of the balance of any money remaining to the credit of the person.

(3) In any case of doubt, the Clerk may list the request for payment out before the Court.

(4) In any other case, an application for payment out may be made ex parte to the Court.

(5) On hearing a request or application under this rule, the Court may by order direct the payment out to the person of any sum of money which the Court is satisfied is due to him or her, together with any accrued interest or investment gain, or may make any other order the Court considers just on the application.

16 Service of documents

16. Save where the Court otherwise orders, service of documents on a person under a disability must be in accordance with the provisions of Order 41.

5 — TRUSTEES, EXECUTORS AND ADMINISTRATORS

17 Trustees, executors and administrators

17. (1) Trustees, executors and administrators may sue and be sued on behalf of, or as representing, the property or estate of which they are trustees or representatives, without joining any of the persons beneficially interested in the trust or estate, and must be taken to represent the persons beneficially interested in the trust or estate.

(2) The Court may, at any stage of the proceedings, order any of the persons beneficially interested in the trust or estate to be made parties either in addition to or in lieu of the previously existing parties.

6 — PARTNERS

18 Partners may sue or be sued in firm name

18. Two or more persons claiming or being liable as partners and carrying on business in the State may sue or be sued in the name of the firm of which those persons were partners when the cause of action accrued and in the names of those persons.

19 Court may direct provision of particulars of all partners

19. Any party to a civil proceeding by or against partners suing in the name of a firm may apply by notice of motion to the Court for a statement of the names, descriptions and places of residence of the persons who were, at the time the cause of action accrued, partners in the firm, to be provided and verified as the Court directs.

20 Claimants must provide particulars of all partners

20. (1) When a claim notice is issued by partners in the name of their firm, the claimants or their solicitors must, on receipt of a written demand by any respondent, immediately confirm in writing the names, descriptions and places of residence of all the persons constituting the firm on whose behalf the action is brought.

(2) If the claimants or their solicitors fail to comply with a demand under sub-rule (1), all proceedings on the claim may, on an application for that purpose, be stayed on such terms as the Court directs.

(3) When the particulars of the partners are provided, the claim may proceed in the same manner, and the same consequences in all respects follow, as if each of the partners had been named as claimants in the claim notice, but the civil proceedings must nevertheless continue in the name of the firm.

21 Service on partners

21.Where persons are sued as partners in the name of their firm, the claim notice must be served in accordance with Order 41, rule 10.

22 Appearance and defence

22. Where persons are sued as partners in the name of their firm, the appearance must show individually the names of the persons on whose behalf it is filed; but the defence may be in the name of the firm and all subsequent proceedings may nevertheless continue in the name of the firm.

23 Application to proceedings between a firm and a partner

23. (1) The provisions of this Order apply to civil proceedings between a firm and one or more of its members, and to civil proceedings between firms having one or more members in common, provided that the firm or firms carry on business within the State.

(2) No execution may be issued in proceedings mentioned in sub-rule (1) without the permission of the Court, which must be sought by motion on notice to the party to be affected.

7 —PERSONS USING BUSINESS NAMES AND CARRYING ON ACTIVITIES AS A CLUB

24 Person trading under a business name

24. (1) A person carrying on business in the State in a name or style other than his or her own name, which is not registered under the Registration of Business Names Act, 1963, may be sued in the name or style under which he or she carries on business.

(2) The claimant may in such a case apply by notice of motion to the Court for an order directing the person who appears to have control or to be managing the business to provide and verify as the Court directs the name, description and place of residence of the person who at the time the cause of action accrued was carrying on the business concerned.

(3) In cases to which sub-rule (1) applies, service of a claim notice or any other document may be effected by service in accordance with Order 41 on the person carrying on business or on the person who at the time of service appears to have control or to be managing the business, at the place where the business is carried on.

(4) Service in accordance with sub-rule (3) must be taken to be effective service on the person sued whether or not that person is in or outside the State, and the permission of the Court to issue the claim notice or other document is not necessary.

25 Person carrying on activity as a club

25. (1) Persons carrying on any activity in the State as a club may, in addition to any other manner in which they may be sued, be sued in the name of the club, whether or not the club is registered under the Registration of Clubs (Ireland) Act, 1904.

(2) The claimant may in such a case apply by notice of motion to the Court for an order directing the persons who appear to have control or to be managing the activity to provide and verify as the Court directs the names, description and places of residence of the persons who at the time the cause of action accrued were the officers or trustees of the club or the persons otherwise in control of the activity carried on by the club.

(3) In cases to which sub-rule (1) applies, service of a claim notice or any other document may be effected by service in accordance with Order 41 on one of the persons who at the time of service appears to be an officer or trustee of the club, or to have control of the activity carried on by the club, at a place where the activity is carried on.

26 Provisions concerning firms to apply in a claim against a person trading under a business name or against a club

26. In so far as the nature of the case permits, the provisions of these Rules relating to proceedings against firms apply to all cases to which rule 24 or rule 25 applies.

8 — CHANGE OF PARTIES

27 Claim does not abate on death or bankruptcy

27. (1) A claim does not abate by reason of the death or bankruptcy of a party, if the cause of action survives or continues.

(2) A claim or civil proceeding does not become defective by the assignment, creation, or devolution of any estate or title pendente lite (or pending administration of an estate).

(3) Whether the cause of action survives or not, a claim does not abate by reason of the death of any party between the verdict or the finding of the issues of fact and the judgment, or between the announcement and recording of the judgment or order.

(4) In any such case, the judgment or order of the Court may be recorded or entered notwithstanding the death.

28 Court may join personal representative

28. (1) This rule applies where a party to civil proceedings dies or is adjudicated bankrupt, or the estate of a party to civil proceedings devolves by operation of law.

(2) In a case to which this rule applies, the Court may, if it considers it necessary for the complete settlement of the questions involved, order that the personal representative, assignee, trustee, or other successor in interest of a party:

(a) be made a party to the civil proceedings; or

(b) be served with notice of the civil proceedings,

on such terms as the Court thinks just, and the Court may make such orders for the disposal of the civil proceedings as it considers just.

29 Continuation of civil proceedings pending administration of an estate

29. Where any estate or title to any property is assigned, created or devolved pendente lite (or pending administration of an estate), a civil, proceeding may be continued by or against the person to, or on whom, the estate or title has come or devolved.

30 Change of parties on death or bankruptcy or other event

30. (1) This rule applies where:

(a) the death or bankruptcy of a party or another event which occurred after the civil proceeding was begun causes a change or transmission of the legal interest or liability; or

(b) a person interested in the claim or civil proceeding has come into existence after the civil proceeding was begun.

(2) Where, in a case to which sub-rule (1) applies, it becomes necessary or desirable that:

(a) a person who is not already a party should be made a party; or

(b) a person who is already a party should be made a party in another capacity,

the Court may, by order made ex parte, order that the proceedings be carried on between the continuing parties, and a new party or parties, where the Court is satisfied that there has been a change or transmission of a legal interest or liability as specified in sub-rule (1)(a), or that a person interested has come into existence as specified in sub-rule (1)(b).

31 Service of an order under rule 30

31. (1) Unless the Court otherwise directs, an order obtained under rule 30 must be served on each of the continuing parties (or their solicitors) and on each new party (unless the person making the application is himself or herself the only new party).

(2) Subject to rules 32 and 33, an order under rule 30 is from the time of service binding on the person served, and every person served with an order under rule 30 who is not already a party to the civil proceedings must, if a respondent, file and serve an appearance and serve a defence within the same time, and in the same manner, as if he or she had been served with the claim notice.

32 Application to discharge or vary an order under rule 30

32. Where:

(a) a person who is not under a disability; or

(b) a person who although under disability, has a guardian ad litem in the civil proceedings,

is served with an order under rule 30, the person may apply to the Court to discharge or vary the order under rule 30 at any time within ten days from the service of the order under rule 30 on him or her.

33 Service of an order under rule 30 on a person under a disability

33. Where a person under a disability who does not have a guardian ad litem in the civil proceeding is served with an order under rule 30, the person may apply to the Court to discharge or vary the order under rule 30 at any time within ten days from the appointment of a guardian ad litem for the person and, until the period of ten days has expired, the order under rule 30 has no force or effect against the person under a disability.

34 Order on failure to proceed following death of a party

34. (1) Where:

(a) a claimant in a civil proceeding dies, and

(b) the cause of action survives,

but the person entitled to proceed fails to proceed, the respondent (or the person against whom the action, proceeding or matter, may be continued) may apply by motion on notice to compel the claimant (or the person entitled to proceed), to proceed within a period to be fixed by the Court.

(2) Where the Court makes an order on an application under sub-rule (1), the court may make an order that, in default of proceeding within the time fixed by the Court, the claim be dismissed with costs.

9 — CONSOLIDATION

35 Consolidation or hearing together

35. (1) If two or more civil proceedings are pending in the Court, and—

(a) some common question of law or fact arises in both or all of them;

(b) the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or

(c) for any other reason it is desirable to make an order under this rule—

the Court may order the proceedings to be consolidated, or to be heard at the same time or one immediately after the other, or may order any of them to be stayed until after the determination of any other of them.

(2) Any order for the hearing together of two or more proceedings or for the hearing of one immediately after the other, is subject to the discretion of the Court.

[SI 17/14]

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