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Rules of the Superior Courts

Order: 15

Parties

The below amendment(s) have been made to this instrument which can be viewed by clicking on the link(s):

No15-S.I. No. 149 Of 2010: Rules Of The Superior Courts (Land And Conveyancing Law Reform Act 2009) 2010
No15-S.I. No. 503 Of 2010: Rules Of The Superior Courts (Derivative Actions) 2010
No15-S.I. No. 255 Of 2015: Rules Of The Superior Courts (Companies Act 2014) 2015
No15-S.I. No. 83 Of 2016: Rules Of The Superior Courts (Order 15) 2016


I. General.

1. (1) All persons may be joined in one action as plaintiffs in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where, if such persons brought separate actions, any common question of law or fact would arise; provided that if, upon the application of any defendant, it shall appear that such joinder may embarrass or delay the trial of the proceeding, the Court may order separate trials or make such order as may be expedient.

(2) In a case under this rule judgement may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment but the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief, unless the Court shall otherwise direct.

2. Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just.

3. Where in an action any person has been improperly or unnecessarily joined as a co-plaintiff, and a defendant has set up a counter-claim or set-off, he may obtain the benefit thereof by establishing his counterclaim or set-off as against the parties other than the co-plaintiff so joined, notwithstanding the misjoinder of such plaintiff or any proceeding consequent thereon.

4. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. Judgement may be given against such one or more of such defendants as may be found to be liable, according to their respective liabilities, without any amendment.

5. It shall not be necessary that every defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him; but the Court may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.

6. The plaintiff may, at his option, join as parties to the same action 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.

7. Where the plaintiff is in doubt as to the person from whom he is entitled to redress he may join two or more defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined as between all parties.

8. 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 shall be considered as representing such persons; but the Court may, at any stage of the proceedings, order any of such persons to be made parties either in addition to or in lieu of the previously existing parties. This rule shall apply to trustees, executors and administrators sued in proceedings to enforce a security by sale or otherwise.

9. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court to defend, in such cause or matter, on behalf, or for the benefit, of all persons so interested.

10. Where in proceedings concerning a trust a compromise is proposed, and some of the persons interested in the compromise are not parties to the proceedings, but there are other persons in the same interest before the Court and assenting to the compromise, the Court, if satisfied that the compromise will be for the benefit of the absent person and that to require service on such persons would cause unreasonable expense or delay, may approve the compromise and order that the same shall be binding on the absent persons, and they shall be bound accordingly, except where the order has been obtained by fraud or non-disclosure of material facts.

11. Any person proceeding to prove a will in solemn form, or to revoke the probate of a will, may, if the will affects real estate, apply to the Court for an order authorising him to cite or make the heir or heirs-at-law, or other person or persons having or pretending interest in such real estate, a party or parties to the action, and the Court, on being satisfied by affidavit that the will in question does affect or purport to affect the real estate, may make an order authorising the person applying to cite the heir or heirs-at-law or such person or persons as aforesaid; provided always that the Court may give any special directions which it may think the justice of the case requires.

12. Subject to the provisions of the Acts and these Rules, in all probate actions the rules as to parties and as to citations to see proceedings in use in the Court of Probate immediately before 1st January, 1878, shall continue to be in force. Citations to see proceedings shall issue from the Central Office.

13. No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a summons or notice in manner hereinafter mentioned, or in such other manner as the Court may direct, and the proceeding as against such party shall be deemed to have begun only on the making of the order adding such party.

14. Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court at any time before trial by motion or at the trial of the action in a summary manner.

15. Where a defendant is added or substituted the plaintiff shall, unless otherwise ordered by the Court, file an amended copy of and take out a summons and serve such new defendant with such summons or notice in lieu thereof in the same manner as original defendants are served. If a statement of claim has been delivered previously to such defendant being added, the same shall, unless otherwise ordered by the Court, be amended in such manner as the addition or substitution of such new defendant shall render necessary or desirable, and a copy of such amended statement of claim shall be delivered to such new defendant at the time when he is served with the summons or notice or afterwards within four days after his appearance.

II. Person under disability.

16. An infant may sue as plaintiff by his next friend in the manner heretofore in use, and may, in like manner, defend by his guardian appointed for that purpose. On the infant's attaining full age, the next friend or guardian may apply on affidavit to the Registrar in the Central Office for a certificate that the plaintiff or defendant lately an infant may proceed or defend in his own name.

17. A person of unsound mind may sue as plaintiff by his committee or next friend, and may defend by his committee or guardian appointed for that purpose.

18. An infant shall not enter an appearance except by his guardian ad litem. No order for the appointment of such guardian shall be necessary, but the solicitor applying to enter such appearance shall make and file an affidavit in the Form No. 4 in Appendix A, Part II.

19. Every infant served with a petition or notice of motion or other document in a matter, shall appear on the hearing thereof by a guardian ad litem, in all cases in which the appointment of a special guardian is not provided for. No order for the appointment of such guardian shall be necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in rule 18 mentioned.

20. Before the name of any person shall be used in any cause or matter as next friend of any infant or other party, or as relator, such person shall sign a written authority to the solicitor for that purpose, and the authority shall be filed in the proper office.

21. In all causes or matters to which any infant or person of unsound mind, whether so found by inquisition or not, or person under any other disability, is a party, any consent as to the mode of taking evidence or as to any other procedure shall, if given with the consent of the Court by the next friend, guardian, committee or other person acting on behalf of the person under disability, have the same force and effect as if such party were under no disability and had given such consent. Provided that no such consent by the committee of any person of unsound mind shall be valid as between him and such person, unless given with the sanction of the President of the High Court.

III. Administration and execution of trusts.

22. (1) In any case in which the right of an heir-at-law, or the next-of-kin, or a class, shall depend upon the construction which the Court may put upon an instrument and it shall not be known or shall be difficult to ascertain who is or are such heir-at-law or next-of-kin or class, and the Court shall consider that in order to save expense or for some other reason it will be convenient to have the questions of construction determined before such heir-at-law, next-of-kin or class shall have been ascertained by means of inquiry or otherwise, the Court may appoint some one or more persons to represent such heir-at-law, next-of-kin or class, and the judgement of the Court in the presence of such persons shall be binding upon the heir-at-law, next-of-kin or class so represented.

(2) In any other case in which an heir-at-law, or any next-of-kin, or a class shall be interested in any proceedings, the Court may, if, having regard to the nature and extent of the interest of such persons or any of them, it shall appear expedient on account of the difficulty of ascertaining such persons, or in order to save expense, appoint one or more persons to represent such heir, or to represent all or any of such next-of-kin or class, and the judgement or order of the Court in the presence of the persons so appointed shall be binding upon the persons so represented.

23. Any residuary legatee or next-of-kin entitled to a judgement or order for the administration of the personal estate of a deceased person may have the same without serving the remaining residuary legatees or next-of-kin.

24. Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, and who may be entitled to a judgement or order for the administration of the estate of a deceased person, may have the same without serving any other legatee or person interested in the proceeds of the estate.

25. Any residuary devisee or heir entitled to the like judgement or order may have the same without serving any co-residuary devisee or co-heir.

26. Any one of several cestuis que trustent under any deed or instrument entitled to a judgement or order for the execution of the trusts of the deed or instrument may have the same without serving any other cestui que trust.

27. In all cases of actions for the prevention of waste or otherwise for the protection of property, one person may sue on behalf of himself and all persons having the same interest.

28. Any executor, administrator, or trustee entitled thereto may have a judgement or order against any one legatee, next-of-kin or, cestui que trust for the administration of the estate or the execution of the trusts.

29. Any mortgagee or other incumbrancer on land entitled to a sale of the mortgaged lands may have a judgement or order for such sale without serving any other mortgagee or incumbrancer, or a trustee for such mortgagee or incumbrancer, unless such mortgagee, incumbrancer, or trustee is in the actual possession or receipt of the rents and profits of the mortgaged or incumbered lands; provided always, that a person, at whose suit or for whose benefit a receiver or sequestrator has been appointed or extended, or continues to receive the rents and profits of the lands, shall not be deemed to be in receipt of such rents and profits within the meaning of this rule.

30. The Court may require any person to be made a party to any action or proceeding, and may give the conduct of the action or proceeding to such person as the Court may think fit, and may make such order in any particular case as it may think just for placing the defendant on the record on the same footing in regard to costs as other parties having a common interest with him in the matters in question.

31. Wherever, in any action for the administration of the estate of a deceased person, or the execution of the trusts of any deed or instrument, or for the partition or sale of any hereditaments, a judgement or order has been pronounced or made—

      (a) for an account; or

      (b) under Order 33; or

      (c) affecting the rights or interests of persons not parties to the action;

the Court may direct that any person interested in the estate or under the trust or in the hereditaments shall be served with notice of the judgement or order; and after such notice such persons shall be bound by the proceedings in the same manner as if they had originally been made parties and shall be at liberty to attend the proceedings under the judgement or order. Any person so served may, within one month after such service, apply to the Court to discharge, vary or add to the judgement or order.

32. It shall not be necessary for any person served with notice of any judgement or order to obtain an order for liberty to attend the proceedings under such judgement or order, but such persons shall be at liberty to attend the proceedings upon entering an appearance in the same manner and subject to the same provisions as a defendant entering an appearance.

33. Notice of a judgement or order served pursuant to rule 31 shall be entitled in the action and there shall be indorsed thereon a memorandum in the Form No. 30 in Appendix G.

34. A memorandum of the service upon any person of notice of the judgement or order in any action under rule 31 shall be filed in the Central Office upon due proof by affidavit of such service. The memorandum shall be in the Form No. 31 in Appendix G.

35. Notice of a judgement or order served pursuant to rule 31 on an infant or person of unsound mind not so found by inquisition shall be served in the same manner as an originating summons in an action. At any time during the proceedings under any such order, the Court may require a guardian ad litem to be appointed for any infant or person of unsound mind not so found by inquisition, who has been served with notice of such order.

36. In any cause or matter to execute the trusts of a will it shall not be necessary to make the heir-at-law a party, but the plaintiff shall be at liberty to make the heir-at-law a party where he desires to have the will established against him.

37. If in any cause, matter, or other proceeding it shall appear to the Court that any deceased person who was interested in the matter in question has no legal personal representative, the Court may proceed in the absence of any person representing the estate of the deceased person or may appoint some person to represent his estate for all the purposes of the cause, matter or other proceeding on such notice to such persons, if any, as the Court shall think fit, either specially or generally by public advertisement, and the order so made, and any order consequent thereon, shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased person had been a party to the cause, matter or proceeding.

38. In any cause or matter for the administration of the estate of a deceased person no party other than the executor or administrator shall, unless by leave of the Court, be entitled to appear at any stage on the claim of any person not a party to the cause or matter against the estate of the deceased person in respect of any debt or liability. The Court may direct or give liberty to any other party to the cause or matter to appear, either in addition to or in the place of the executor or administrator, upon such terms as to costs or otherwise as the Court may think fit.