LODGMENTS AND TENDERS IN LIEU OF LODGMENT
1 — INTERPRETATION
‘claim’ includes a counterclaim and any claim made by third party notice;
‘claimant’ includes a respondent who serves a counterclaim and a party who makes a claim by third party notice;
‘lodgment’ means a lodgment of money in Court in accordance with rule 2;
‘notice of lodgment’ means a notice served in accordance with rule 2(3);
‘qualified party’ means a party identified in rule 9(1);
‘respondent’ includes a respondent by counterclaim and a party against whom a third party claim is made;
‘tender offer’ means an offer made under rule 9(2).
2 — LODGMENT
2. (1) The respondent may in respect of any claim in a civil proceeding, at any time up to the time prescribed for filing and service of the respondent’s appearance and defence, lodge in Court a sum of money which he or she alleges is sufficient to satisfy the claim.
(3) A notice of the making of the lodgment (Form 45.01, Schedule C) must be made in writing in a document other than the appearance and defence.
(8) Neither the fact nor the amount of a lodgment may be intimated in a defence or other pleading or document filed in Court (other than the notice of lodgment or any notice of acceptance of a lodgment).
3 Time for accepting a lodgment
3. (1) The party whose claim a lodgment is intended to meet may accept the amount lodged (Form 45.02, Schedule C) within 28 days after the notice of lodgment was served, or at any later time with the written consent of the party who made the lodgment.
(2) Where a late lodgment or an increase to a lodgment is made in accordance with rule 6, the party whose claim the lodgment or increased lodgment is intended to meet may accept the amount lodged within 28 days after the notice of lodgment or notice of increased lodgment was served, or at any later time with the written consent of the party who made the lodgment or increased lodgment.
4 Consequences of accepting a lodgment
4. (1) On acceptance of a lodgment, the amount lodged may be paid to the party accepting it, without any judgment or order by the Court, provided that the party accepting the lodgment has lodged with the Clerk or with the Accountant a signed notice of acceptance of the lodgment in full satisfaction of the claim, save as to costs and, where acceptance of the lodgment requires the consent of the party who made the lodgment, the written consent of that party to late acceptance of the lodgment.
(2) If the amount of costs to which a party who has accepted a lodgment is entitled cannot be agreed between the parties concerned, the Court may, on the application of the claimant or respondent, as the case may be, determine the scale of costs to apply.
5 Where a party is under a disability
5. (1) Despite rule 3, and subject to the provisions of section 63 of the Civil Liability Act, 1961 (No 41 of 1961), where the party whose claim a lodgment is intended to meet is under a disability, then, together with the notice of acceptance of the lodgment there must be served on the party who made the lodgment a notice of motion (Form 44.01, Schedule C, with the necessary insertions and modifications) to have the acceptance of the lodgment approved by the Court.
(2) After a notice of motion has been served in accordance with sub-rule (1), no further step in the proceedings may be taken except with the permission of the Court.
6 Permission to make a late lodgment
6. (1) Despite rule 2(1), a party may make a lodgment, or may make a further payment into court to increase an existing lodgment—
(a) in any case where an amendment has been made to the statement of claim in the claim notice (or, as the case may be, the counterclaim or third party notice) in which the claim is made, within 28 days after the amended pleading is served on the party making the lodgment; or
(b) with the written consent of the party whose claim is intended to be met by the lodgment, within such further period as is permitted in that party’s consent, the original of which must be lodged with the Clerk; or
(2) A party who makes or increases a lodgment in accordance with sub-rule (1) must serve a notice of lodgment (or notice of increased lodgment) on the party whose claim is intended to be met.
7 Liability for costs where a lodgment is not accepted
7. (1) Where a party does not accept the amount lodged within the time prescribed, that party is liable for all costs incurred after the lodgment (or increased lodgment) in respect of the proceeding unless the Court decides that the amount due in respect of the claim is greater than the amount lodged in respect of the claim.
(2) Where a Court decides that the amount to which a party is entitled in respect of a claim is less than the amount lodged to meet that claim, the Court must give judgment for the party making the claim for the amount the Court finds to be due, but must award to the party who made the lodgment the costs incurred in respect of the proceedings after the lodgment.
(4) Despite sub-rules (1) and (2), the Court may, due to the special circumstances of the case specifically identified by the Court, order that the party who did not accept the lodgment—
8 Investment of money lodged
8. The party making a lodgment may by notice to the Clerk or the Accountant request that the lodgment either be placed in a current account or be invested. The party making a lodgment is entitled to payment of any investment gain accruing and the proceeds of any such gain must be paid out to the party who made the lodgment or that party’s solicitor on the conclusion of the proceedings, subject to any order the Court may make. Any investment gain does not form part of the lodgment.
3 — TENDER OFFER BY QUALIFIED PARTY IN LIEU OF LODGMENT
9 Qualified parties
(2) Where a qualified party is entitled to make or increase a lodgment on the qualified party’s own behalf or on behalf of any other party under Part 2 of this Order or by order of the Court, then the qualified party may, in lieu of lodging money in Court, make an offer of tender of payment to the party whose claim is intended to be met.
(5) A tender offer must be made in writing in accordance with Form 45.03, Schedule C and must state whether liability is admitted or denied and, subject to rule 2, is to be taken to be part of the pleadings.
(7) Where a tender offer has been accepted, the qualified party who made the tender offer must pay the sum specified in the tender offer within 28 days of receipt of notice of acceptance of the tender offer.
(8) A qualified party whose tender offer has been accepted but who has failed to pay the sum specified in the tender offer within 28 days of receipt of notice of acceptance of the tender offer continues to be liable to pay the sum specified and is also liable to pay interest on the sum specified at the rate fixed for judgments of the Court for each day after that 28 day period for which the specified sum or any part of the specified sum remains unpaid.
(9) Any party or qualified party may apply to the Court in relation to any tender offer or any matter relating to a tender offer and the Court may make any order or give any directions on that application as the Court considers just and proper.