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District Court Rules

Order: 44

Applications by notice of motion : S.I. No. 17 of 2014
1 — PRE-TRIAL APPLICATIONS: GENERAL

1 Application of this Order

1. (1) Unless otherwise provided by these Rules, this Order applies to any interlocutory or other application in a civil proceeding.

(2) Nothing in this Order limits the power of the Court to make any interlocutory order or give a direction (whether in the presence of some only or all of the parties) without the issue of a notice of motion in an appropriate case.

2 Form and timing of application

2. (1) An application in a proceeding made on notice to any person must be made in writing, by notice of motion, unless the Court otherwise orders, and must be supported by an affidavit.

(2) An application by notice of motion is made when the notice of motion is filed in accordance with rule 4.

(3) Unless any statute or rule otherwise provides, the moving party in any application to the Court other than an ex parte application or an application for an adjournment must give at least 48 hours’ notice in writing to the Clerk of the Court at which such application is to be made. This filing of a notice of motion or notice of application for issue is deemed to be notice to the Clerk of intention to make the application contained in the notice on the return date assigned to it.

3 Notice of application to other parties or persons

3. On the return date of a notice of motion the Court may order that the person making the application give notice of it to any other person having a sufficient interest.

4 Form and filing

4. (1) A notice of motion must be in Form 44.01, Schedule C, modified as appropriate to the case and must include particulars of the order, direction or other relief sought as appropriate to the case, a summary of the grounds of the application and, where relevant, a statement of the provisions of law including the provisions of any enactment or these Rules relied on in making the application.

(2) A notice of motion must be filed with the Clerk assigned to the Court area in which the proceedings concerned have been issued and assigned a return date by the Clerk.

(3) Where the grounds for the order, direction or other relief sought include the failure or refusal of the opposing party to agree a matter, copies of the correspondence or documents passing between the parties concerned, relevant to the subject matter of the motion must be attached to the original notice of motion.

(4) Where more than one order, direction or other relief is sought against the same party in the same civil proceeding:

      (a) so far as practicable, all such orders, directions or other reliefs must be sought in the same notice of motion and a party must not suffer any adverse consequence in the costs to which the party is found to be entitled by reason of having sought several orders, directions or other reliefs in the same notice of motion; and

      (b) where practicable, a party must seek all of the interlocutory orders, directions or other reliefs which the party seeks in the civil proceeding on the same return date.

5 Service

5. (1) The applicant must serve a copy of a notice of motion and a copy of any affidavit in support of the notice of motion on every person to whom notice of the motion is to be given unless otherwise provided by these Rules or by an order of the Court.

(2) Every notice of motion must be served on every other party against whom any relief is sought in the motion not less than seven days before the return date.

6 Return date

6. (1) If a notice of motion has not been served a Clerk may, at the request of the party who filed it, amend the notice of motion on or before the return date named in the notice of motion to name another return date.

(2) In any other case, a notice of motion may only be amended by the Court.

(3) A notice of motion must not be amended under sub-rule (1) more than once.

7 Copies for Court

7. (1) The claimant or other moving party must have available in Court on the return date of any motion, for use by the Judge, copies of:

      (a) any notice of motion before the Court on that return date; and

      (b) any affidavit (and any exhibits) delivered by any party in support of or in opposition to the motion.

(2) Sub-rule (1) does not limit the ability of any party to rely on any affidavit or document at the hearing of an application by motion.

8 Adjournment

8. The Court may adjourn the hearing of an application by notice of motion on such terms as it thinks just.

9 Absence of party served with notice of motion

9. (1) If any person to whom a notice of motion is addressed fails to attend, the Court may hear the application if satisfied that the notice of motion was duly served.

(2) If on an application by notice of motion the applicant fails to attend, the Court may dismiss the application or make such other order as the Court thinks just.


2 — APPLICATIONS TO SET ASIDE OR VARY

10 Application to discharge, set aside or vary an order

10. (1) The Court may, on an application by notice of motion (Form 44.02, Schedule C, modified as appropriate to the case) by the person affected, on notice to the applicant for the original order, discharge, set aside or vary an order which affects a person where the application for the order—

      (a) was made on notice to that person, but the person did not attend the hearing of the application; or

      (b) was not made on notice to that person.

(2) An order under sub-rule (1) may be subject to such terms as to costs or otherwise as the Court considers just.