Parties CC
Circuit Court Rules
Parties
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 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 a motion on notice by any defendant, it shall appear that such joinder may embarrass or delay the trial, the Judge may order separate trials, or make such other order as may be right, and provided also that no person shall be made a plaintiff without his consent.
2. 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. When 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. It shall not be necessary that every defendant shall be interested as to all the relief sought, or as to every cause of action included in any proceedings against him; but the Judge 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 has no interest.
3. The plaintiff may, at his option, join as defendants 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.
4. [1] No action, cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Judge may in every action, cause or matter deal with the subject in controversy so far as regards the rights and interests of the parties actually before him. The Judge may, at any stage of the proceedings, either upon or without the application of any party, and on such terms as may appear to him to be just, order that the name of any party, whether plaintiff or defendant, who has been improperly joined, be struck out, and that 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 Judge to adjudicate upon and settle all the questions involved in the cause or matter, be added as a plaintiff or a defendant. 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 consent in writing thereto. Every person whose name is so added as defendant shall be served with a Civil Bill in such manner as may be prescribed by any Order of the Court, and the action, cause or matter, as against such party, shall be deemed to have begun only on the making of the Order adding such party.
5. An infant may sue by his next friend, and in such case there shall be lodged with the Civil Bill a written authority authorising the commencement and prosecution of the suit on behalf of the infant and the use of the name of such person as next friend, signed by such person.
6. An infant may defend by his guardian ad litem appointed for that purpose in accordance with Order 19 of these Rules.
7. When proceedings have been brought on behalf of or against an infant, the Court may appoint a next friend or guardian ad litem to act for or on behalf of such infant, and may change any next friend or guardian ad litem, and appoint another in his place, and may also direct that any money or other personal property to which such infant may be declared entitled in such proceedings be secured or invested for the benefit of such infant in such manner as the Judge shall consider advisable.
8. [2] (1) In this rule, the “2015 Act” means the Assisted Decision-Making (Capacity) Act 2015, and expressions used have the meanings assigned to them by the 2015 Act.
(2) Where there is in force in respect of a relevant person a decision-making representation order which authorises a decision-making representative appointed in respect of the person to institute, prosecute or defend such proceedings, the relevant person shall sue or defend by his or her decision-making representative, and service on the decision-making representative shall be good and sufficient service.
(3) Where there is in force in respect of a relevant person as the donor a registered enduring power of attorney in respect of which a notification of lack of capacity has been accepted, which includes authority to act on the donor’s behalf in relation to the institution, prosecution or defence of proceedings, the relevant person shall sue or defend by his or her attorney, and service on the attorney shall be good and sufficient service.
(4) Where there is in force in respect of a relevant person as the donor a registered enduring power under the Act of 1996, which includes authority to act on the donor’s behalf in relation to the institution, prosecution or defence of proceedings, the relevant person shall sue or defend by his or her attorney under the Act of 1996, and service on the attorney under the Act of 1996 shall be good and sufficient service.
(5) Where there is in force in respect of an intending party or party to proceedings as the appointer a registered co-decision-making agreement which provides for the making jointly by the appointer and a co-decision-maker of decisions concerning proceedings, the originating document or defence, and each subsequent document delivered in the proceedings shall be signed by, or shall include a certificate that the decision to issue and deliver same was made jointly by, the appointer and co-decision-maker.
(6) Where any issue arises as to, or arising from, the capacity of any adult party to proceedings, the Court may, of its own motion having heard the parties, or on the application by motion on notice of any party, or person sufficiently interested, make such orders or give such directions concerning the further conduct of the proceedings as are necessary in the interests of justice.
(7) A ward of court may sue or defend by his or her committee
9. 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 Judge 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.
10. Save in actions founded on tort, when there are numerous persons having the same interest in one action or matter, one or more of such persons may sue or be sued, or may be authorised by the Judge to defend, in such action or matter, on behalf of or for the benefit of all persons so interested.
11. Where proceedings are taken for the recovery of land, any tenant, under-tenant, or other person in actual possession of the property sought to be recovered, or any part thereof, may be named as defendant and the Civil Bill shall be directed to such tenant, under-tenant, or other person, with the addition of the words ‘‘and all persons concerned’’.
12. Where proceedings are taken as mentioned in the last preceding rule, any person not named in or served with the Civil Bill may by leave of the Judge appear and defend at the hearing, and the Judge may thereafter deal with such person, both as to costs and otherwise, as if he had originally been served with the Civil Bill as defendant.
13. When any person residing outside the Circuit, but inside the State, is a necessary and proper party to a proceeding properly instituted in the Court against some person within the Circuit, such first mentioned person may be served with the Civil Bill or other document without special leave.
14. Subject to the requirements of Rule 9 of Section 66 of the Chancery (Ireland) Act, 1867, wherever, in any action for the administration of the estate of a deceased person, or for the execution of the trusts of any deed or instrument, or for the partition or sale of any hereditaments, a judgment or order has been pronounced affecting the rights or interests of persons not parties to the action, the Court may direct that any persons interested in the estate, or under the trusts, or in the hereditaments, shall be served with notice of the judgment 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 judgment or order. Any person so served may within one month after such service apply to the Court to discharge, vary or add to the said judgment or order.
[1] Order 6 rule 4 substituted by SI 312 of 2007, effective 20 July 2007.
[2] Order 6 rule 8 substituted by SI 201 of 2023 effective 27 April 2023.
Third Party Procedure
ACTIONS BY AND AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN
1. Where in any action a defendant claims as against any person not already a party to the action (in this Order called ‘‘the third party’’)
(a) that he is entitled to contribution or indemnity;
(b) that he is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff;
(c) that any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and the third party or between any or either of them, the Court may give leave to the defendant to issue and serve a third party notice and may, at the same time, if it shall appear desirable to do so, give the third party liberty to appear at the trial and take such part therein as may be just, and generally give such directions as to the Court shall appear proper for having any question or the rights or liabilities of the parties most conveniently determined and enforced and as to the mode and extent in or to which the third party shall be bound or made liable by the decision or judgment in the action.
2. The application for such leave shall be made by motion on notice to the plaintiff in accordance with Form 6C as set out in the Schedule of Forms attached hereto. Unless the plaintiff wishes to add the third party as a defendant, his attendance at the hearing of the motion shall not be necessary. If the plaintiff does attend he shall not be entitled to costs in respect of the motion except by special direction of the Court.
3. Application for leave to issue the third party notice shall, unless otherwise ordered by the Court, be made after the service of an Appearance and at any time prior to the trial of the action.
4. The third party notice shall state the nature and grounds of the claim or the nature of the question or issue sought to be determined and all information required to be set out in the indorsement of a Civil Bill as provided for in these rules and any directions of the Court given under Rule 1 hereof. The third party notice shall be issued and served in the same manner as in the case of a Civil Bill and shall be served within twenty-one days of the making of the Order unless otherwise directed by the Court. A copy of the Civil Bill and defence together with a copy of the Order joining the third party shall be served with the third party notice which said third party notice shall also be served upon the Plaintiff(s). Where the third party is joined as a defendant, an amended Civil Bill together with a copy of the Order joining the third party as a defendant shall be served upon all defendants by the plaintiff within twenty-one days of the making of the Order unless otherwise directed by the Court. Any amended defence of an original defendant to the proceedings shall be served upon the plaintiff within ten days from the date of service of the amended Civil Bill.
5. The third party shall, as from the time of service upon him of the third party notice, be a party to the action with the same rights in respect of defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant and shall be entitled to be served with all pleadings in the proceedings by the party filing and/or delivering same.
6. The third party notice shall call upon a third party to enter an appearance within a stated time after service (which shall not be less than ten days or other time limited for appearance by agreement of the parties or any order of the Court) to answer the claim of the defendant, and shall warn him of the consequences of failure to do so provided that the expiry of such time shall not entitle the Office to refuse to permit an appearance to be entered.
7. Where a third party enters an appearance, he shall deliver his defence within ten days from the date thereof or within such further period as may be allowed by the Court or consented to by the defendant(s) in the proceedings.
8. After the third party enters an appearance, and before the expiration of the time limited for the delivery of defence, he may, after serving notice of the intended application upon the plaintiff and all defendants, apply to the Court to vary any directions given by the Court under Rule 1 of this Order.
9. The Court may decide all questions of costs as between a third party and the other parties to the action, and may order any one or more to pay the costs of any other or others or give such directions as to costs as the justice of the case may require.
Actions by and against firms and persons carrying on business in names other than their own
ACTIONS BY AND AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN
1. Any two or more persons claiming or being liable as co-partners and carrying on business within the jurisdiction may sue or be sued in the name of the respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action and in the names of such persons; and any party to an action may in such cases 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 of the accruing of the cause of action, co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the Court may direct.
2. When a Civil Bill is issued by partners in the name of their firm, the plaintiffs or their solicitors shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names, descriptions and places of residence of all the persons constituting the firm on whose behalf the action is brought. If the plaintiffs or their solicitors shall fail to comply with such demand, all proceedings in the action may, upon an application for that purpose, be stayed upon such terms as the Judge may direct. When the names of the partners are so declared, the action shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the Civil Bill, but all proceedings shall, nevertheless, continue in the name of the firm.
3. Where persons are sued as partners in the name of their firm under Rule 1 of this Order, the Civil Bill shall be served either upon any one or more of the partners personally or at the principal place, within the jurisdiction, of the business of the partnership, upon any person having at the time of service the control or management of the partnership business there; and, subject to these rules, such service shall be deemed good service on the firm so sued, whether any of the members thereof are out of the jurisdiction or not, and no leave to issue a Civil Bill against them shall be necessary; provided that in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the commencement of the action, the Civil Bill shall be served on every person within the jurisdiction sought to be made liable.
4. Where persons are sued as partners in the name of their firm, they shall appear individually in their own names; but all subsequent proceedings shall, nevertheless, continue in the name of the firm.
5. Debts owing by a firm carrying on business within the jurisdiction may be attached under Order 38, although one or more members of such firm may be resident abroad, provided that any person having the control or management of the partnership business, or any member of the firm within the jurisdiction, is served with the garnishee order. An appearance by any member pursuant to an order shall be a sufficient appearance by the firm.
6. The above Rules shall apply to actions between a firm and one or more of its members, and to actions between firms having one or more members in common, provided such firm or firms carry on business within the jurisdiction, but no execution shall be issued in such actions without leave of the Judge after motion on notice to the party so to be affected, and on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just.
7. Any person carrying on business within the jurisdiction in a name or style other than his own name which is not registered pursuant to the Registration of Business Names Act, 1963, may be sued in such name or style; and the plaintiff in such cases may apply by Notice of Motion to the Court for an Order directing the person who appears to have control or to be managing such business to furnish the name, description and place of residence of the person who at the time of the accruing of the cause of action was carrying on the business as aforesaid, in such manner and verified upon oath or otherwise as the Court may direct.
8. In all cases to which Rule 7 of this Order applies service of a Civil Bill or any other document may be effected by service in the manner provided by these Rules on the person carrying on business or on such person who at the time of the service appears to have control or to be managing the said business, at the place where the said business is carried on. Such service shall be deemed to be good service upon the person sued whether or not that person is out of the jurisdiction and no leave to issue the Civil Bill or other document shall be necessary.
9. In so far as the nature of the case will permit, all rules relating to the proceedings against firms shall apply to all cases to which Rule 7 of this Order applies.
Joinder of Claims
- Save as in the next succeeding Rule provided, 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, but, if it appears to the Judge that claims joined in any action or matter cannot be conveniently tried together, he may order separate trials or may exclude any claim, and may order the record to be amended accordingly, and may make such order as to costs as may seem just.
- No claim may be joined with one for the recovery of land except in respect of mesne profits or arrears of rent, or double rent in connection therewith, or any part thereof, and damages for breach of any contract under which the land, or any part thereof, is held, or for any wrong or injury to the said land, or any part thereof. An action for redemption, and a motion for delivery by a defendant of possession of mortgaged property therein, shall not be deemed a claim for the recovery of land within the meaning of this Rule.
Security for costs
1. When a party shall require security for costs from another party, he shall be at liberty to apply by notice to such party for such security; and in case the latter shall not, within seven days after service thereof, undertake by notice to comply therewith, the party requiring the security shall be at liberty to apply to the Court for such security by motion on notice grounded upon affidavit; and every such application shall be made before the party seeking the security takes any step save entering an appearance in the cause or matter after his right to such security shall have arisen, unless the Judge shall, under special circumstances, otherwise order.
2. A defendant shall not be entitled to an order compelling the plaintiff to give security for costs solely on the ground that the plaintiff resides outside the jurisdiction of the Court.
3. No defendant shall be entitled to an order for security for costs by reason of any plaintiff being resident out of the jurisdiction of the Court, unless upon a satisfactory affidavit that such defendant has a defence upon the merits.
4. In any action or matter in which security for costs is required, the security shall be of such amount and be given at such time or times, and in such manner and form, as the County Registrar shall direct, subject to an appeal to the Court.
5. Where a bond is to be given as security for costs, it shall, unless the Judge shall otherwise direct, be given to the party or person requiring the security, and not to an Officer of the Court.
Change of parties
1. An action, proceeding or matter, shall not become abated by reason of the death or bankruptcy of any of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite; and, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the verdict or the finding of the issues of fact and the judgment, or between the pronouncement and recording of the judgment or order, but the judgment or order may in such case be entered notwithstanding the death.
2. In case of the death, or bankruptcy, or devolution of estate by operation of law, of any party to an action, proceeding or matter the Judge may, if it be deemed necessary for the complete settlement of the questions involved, order that the personal representative, assignee, trustee, or other successor in interest, if any, of such party be made a party, or be served with notice, and on such terms as the Judge shall think just, and the Judge shall make such order for the disposal of the action, proceeding, or matter, as may be just.
3. In case of an assignment, creation, or devolution of any estate or title pendente lite, the action, proceeding, or matter, may be continued by or against the person to, or upon whom, such estate or title has come or devolved.
4. Where, by reason of the death, or bankruptcy, or any other event occurring after the commencement of an action, proceeding or matter, and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the action, proceeding, or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the Court upon an allegation of such change or transmission of interest or liability, or of such person interested having come into existence.
5. An order obtained as in the last preceding Rule mentioned shall, unless the Court shall otherwise direct, be served upon the continuing party or parties, or their Solicitors, and also upon each such new party unless the person making the application be himself the only new party, and the order shall from the time of such service, subject nevertheless to the next two following Rules, be binding on the person served therewith, and every person served therewith who is not already a party to the action, proceeding, or matter, shall be bound to enter an Appearance thereto within the same time, and in the same manner, as if he had been served with the originating document.
6. Where any person who is not under disability, or who although under disability, has a guardian ad litem in the action, proceeding, or matter, shall be served with such order as in Rule 4 of this Order mentioned, such person may apply to the Court to discharge or vary such order at any time within ten days from the service thereof.
7. Where any person being under disability, and not having a guardian ad litem in the action proceeding, or matter, is served with any order as in Rule 4 of this Order mentioned, such person may apply to the Court to discharge or vary such order at any time within ten days from the appointment of a guardian ad litem for such party, and, until such period of ten days shall have expired, such order shall have no force or effect as against such last mentioned person.
8. Where the plaintiff or defendant in action, proceeding, or matter, dies and the cause of action survives but the person entitled to proceed fails to proceed, the defendant (or the person against whom the action, proceeding or matter, may be continued) may apply by motion on notice to compel the plaintiff (or the person entitled to proceed), to proceed within such time as may be ordered; and, in default of such proceeding, judgment may be entered for or an order made in favour of the defendant, or, as the case may be, for or in favour of the person against whom the action, proceeding, or matter, might have been continued.
Interpleader
1. Relief by way of interpleader may be granted:
(a) where the person seeking relief (in this Order called “the applicant”) is under liability for any debt, money, goods or chattels, for or in respect of which he is, or expects to be, sued by two or more parties (in this Order called “the claimants”) making adverse claims thereto;
(b) where the applicant is a Sheriff, or other officer charged with the execution of process by or under the authority of the Court, and claim is made to any money, goods, or chattels taken or intended to be taken in execution under any process, or to the proceeds or value of any such goods or chattels, by any person other than the person against whom the process issued.
2. The applicant must satisfy the Court by affidavit or otherwise:
(a) that the applicant claims no interest in the subject-matter in dispute, other than for charges or costs; and
(b) that the applicant does not collude with any of the claimants; and
(c) that the applicant is willing to pay or transfer the subject-matter into Court or to dispose of it as the Judge may direct.
3. The applicant shall not be disentitled to relief by reason only that the titles of the claimants have not a common origin, but are adverse to and independent of one another.
4. Where the applicant is a defendant, application for relief may be made at any time after service of the Civil Bill.
5. The applicant may issue an Interpleader Application in accordance with Form 3 in the Schedule of Forms hereto calling on the claimants to appear and state the nature and particulars of their claims and either to maintain or relinquish them.
6. If the application is made by a defendant in an action the Judge may stay all further proceedings in the action.
7. If the claimants appear in pursuance of the application, the Judge may order either that any claimant be made a defendant in any action already commenced in respect of the subject-matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the latter case may direct which of the claimants is to be plaintiff and which defendant.
8. The Judge may, with the consent of both claimants, decide their claims in summary manner, and on such terms as may be just.
9. Where the question is a question of law, and the facts are not in dispute, the Judge may decide the question without directing the trial of an issue.
10. If a claimant, having been duly served with an application calling on him to appear and maintain or relinquish his claim, does not appear in pursuance of the application, or, having appeared, neglects or refuses to comply with any order made after his appearance, the Judge may make an order declaring him and all persons claiming under him, forever barred against the applicant and persons claiming under him, but the order shall not affect the rights of the claimants as between themselves.
11. Except where otherwise provided by statute, the judgment in any action or any issue ordered to be tried or stated in an interpleader proceeding, and the decision of the Judge in a summary way under Rule 8 of this Order, shall be final and conclusive against the claimants and all persons claiming under them.
12. Where goods or chattels have been seized in execution by a sheriff, or other officer charged with the execution of process of the Court, and any claimant alleges that he is entitled under a bill of sale or otherwise, to the goods or chattels by way of security for debt, the Judge may order the sale of the whole or part thereof, and direct the application of the proceeds of sale in such manner and upon such terms as may be just.
13. The rules applicable to discovery shall, with the necessary modifications, apply to interpleader proceedings.
14. The Judge may, in or for the purposes of any interpleader proceedings, make all such orders as to costs and all other matters as may be just and reasonable.
15. A claim made to or in respect of any goods or chattels taken or about to be taken in execution under the process of the Court shall be in writing. On the receipt of the claim the Sheriff or such other officer shall forthwith give notice thereof to the execution creditor in accordance with Form 29 of the Schedule of Forms annexed hereto, or to the like effect, and the execution creditor shall, within four days after receiving the notice, give notice to the Sheriff or such other officer in accordance with Form 30 of the Schedule of Forms annexed hereto that he admits or disputes the claim, in the form in the said Schedule, or to the like effect. If the execution creditor admits the title of the claimant and gives notice as directed by this rule, he shall only be liable to such Sheriff or officer for any fees and expenses incurred prior to the receipt of the notice admitting the claim.
16. Where the execution creditor does not in due time, as directed by the last preceding rule, admit or dispute the title of the claimant to the goods or chattels, and the claimant does not withdraw his claim thereto by notice in writing to the Sheriff or such officer, the Sheriff or such officer may issue an interpleader application, and should the claimant withdraw his claim by notice in writing to the sheriff or such officer, or the execution creditor in like manner serve an admission of the title of the claimant prior to the return day of such application, and at the same time give notice of such admission to the claimant, the Judge may in and for the purposes of the interpleader proceedings, make all such orders as to costs, fees, charges and expenses as may be just.
Persons of unsound mind
1. Every originating application to the Court to have a person declared to be of unsound mind shall be commenced by Civil Bill in which Form 2F of the Schedule of Forms annexed hereto being a Civil Bill as to Capacity signed by the applicant and by his Solicitor (if any), and prior to the issue of such Civil Bill there shall be filed two affidavits, whereof one shall be made some person having an interest in the wellbeing of the person alleged to be of unsound mind, and the other by a medical practitioner.
2. The affidavit of the person having an interest in the wellbeing of such person shall set forth:
(i) the name and residence of the person alleged to be of unsound mind and of his next of kin, so far as same are known to the deponent; and
(ii) the evidence of the alleged unsoundness of mind within the personal knowledge of the deponent; and
(iii) the particulars of the property required to be protected and to be applied for the said person’s advantage.
3. The affidavit of the medical practitioner shall set forth distinctly and particularly:
(i) the nature of the alleged unsoundness of mind; and
(ii) the evidence as to demeanour, conversation, acts and physical causes upon which the opinion of the deponent as to soundness or unsoundness of mind is founded.
4. The applicant or his Solicitor shall issue the Civil Bill and affidavits with the County Registrar, and as soon as shall be practicable after the issuing thereof, shall cause a copy of such Civil Bill to be served upon the person alleged to be of unsound mind, and upon the person with whom he resides, or under whose care he is, together with a notice of the issuing of such affidavits.
5. An Appearance and Defence to such Civil Bill shall be entered and delivered as the case may be in the manner and within the times specified in Order 15.
6. Upon the expiration of the time for Appearance, or, where an Appearance has been entered, upon the expiration of the time for a Defence the applicant or his Solicitor may serve notice of trial, and shall serve the same upon all persons who have been served with the Civil Bill, and upon such other persons (if any) as have entered an appearance thereto.
7. If the applicant or his Solicitor does not serve notice of trial within ten days after delivery of the Defence, then the person alleged to be of unsound mind, or any person who shall have entered an appearance on his behalf, may do so, or may apply to the Court by motion on notice to the applicant to have such Civil Bill dismissed for want of prosecution or may serve a notice of trial in accordance with Order 33 rules 4 and 5 of these rules.
8. Upon the hearing of such Civil Bill, the Judge, if he shall consider the evidence in support of the application insufficient, may require such other evidence as may seem to him necessary or expedient, and may direct a medical practitioner, other than the practitioner upon whose affidavit the Civil Bill was grounded, to report confidentially to the Judge upon the circumstances of the case, and may adjourn the hearing pending the receipt of such report.
9. If the Judge is of opinion upon the hearing of the Civil Bill that such person is of unsound mind and incapable of managing his person or property, and that the property requires to be protected and applied for his advantage, he may declare that such person is of unsound mind and incapable of managing his person or property, and that such property requires to be protected and applied for his advantage; and in that event he shall appoint, or give directions for the appointment of, a guardian of the person and property of the said person, and may commit to such guardian the care of the said person, and the management of his property. In any case in which the Judge may think proper he may appoint different persons guardians of the person and of the property. Where an order is made directing the appointment of such a guardian or guardians, the person to be appointed, unless otherwise ordered, shall give security to be approved by the Judge for the faithful discharge of his duties, and shall duly account for what he shall receive as such guardian, and shall pay the same as the Judge shall direct.
10. In any case in which the Judge shall declare a person to be of unsound mind and incapable of managing his person or property, or in any case in which he shall dismiss the Civil Bill, the Judge may make such order as to costs and expenses of and incidental to the proceedings as to him shall seem right.
11. The medical practitioner visiting and reporting under the direction of the Court shall be allowed such fee as the Judge may think proper. Such fee shall be dealt with by the Judge and as part of the expenses of the proceedings, but shall in the first instance be paid by the petitioner, or by the Solicitor having carriage of the proceedings, as the Judge may direct.
12. The Judge may at any time direct the investment of any fund the property of the person of unsound mind in such securities, and subject to such conditions as may seem proper, and direct such accounts as he shall think necessary to be passed by the guardian of the property, at such time and in such manner as he shall appoint, and all such accounts shall be taken by the County Registrar and shall be filed in the Office.
13. Should the property increase in value, the guardian shall notify the fact to the County Registrar; and if the property is enlarged by such increase beyond the jurisdiction of the Court, the County Registrar shall notify this fact to the Court and to the Registrar of Wards of Court.
14. When any judgment or order has been made by the Court declaring any person to be of unsound mind and incapable of managing his person or property, the County Registrar shall forthwith send notice of such judgment or order with a sealed copy thereof to the Registrar of Wards of Court, and such notice shall set forth the then known amount of such person’s property and the net income arising therefrom.
15. Where, under order of the Court, any person resides in an institution or mental hospital for the care of the insane, one of the Inspectors of Mental Hospitals shall forward to the County Registrar once in each year, for the information of the Court, a report as to the care, treatment and general condition of such person.
16. Every guardian of a person of unsound mind shall once at least in each year, and as often as he shall be required by the Court, furnish to the County Registrar a return setting forth, as nearly as the circumstances of each case will permit, the particulars which Committees of Lunatics are required to furnish to the Registrar of Wards of Court under the General Orders in Lunacy (27th June, 1879) or such other General Orders as may be from time to time in force.
17. The Court may discharge from control and regulation of the Court any person of unsound mind so found, upon being satisfied that he has been restored to sound mind and to the capacity for managing his property; but no order for discharge shall be made by the Court until the Judge has personally examined the person to be discharged.
18. Upon the death of any person of unsound mind so found, it shall be the duty of the guardians appointed by the Court to file with the County Registrar a certificate or other evidence of the death of such person with a verified statement setting forth the circumstances of such person’s property, and the claims, if any, against it in respect of costs, maintenance, or otherwise, in the matter of the lunacy, and the Judge, upon being satisfied that all such claims have been duly discharged, and (if required by the Judge) upon probate or letters of administration being exhibited to the County Registrar, shall by order direct the matter to be dismissed out of the jurisdiction of the Court.
19. Every application to the Court subsequent to the judgment upon a Civil Bill as to Capacity shall be made by motion grounded upon an affidavit setting forth the facts relevant to the application.
20. Subject to the foregoing rules, the rules and practice in relation to persons of unsound minds and wardship for the time being relating to the jurisdiction of the President of the High Court shall, so far as applicable, apply to all proceedings in respect of persons of unsound mind in the Circuit Court.
Magennis v Toal
Toal v Magennis
Circuit Case.
5 March 1910
[1910] 44 I.L.T.R 108
Cherry L.J.
Armagh, March 5, 1910
[Cherry, L.J., made the order sought. He accordingly directed the administratrix to be put on the record, and he affirmed the decrees and dismiss. The following was the operative part of the order in the first case putting the administratrix on the record:—“Whereupon it appearing to the Court that the plaintiff and respondent in this matter died on the 17th May, 1909, after the decree of the Civil Bill Court, and after service of notice of appeal to the Judges of Assize, and that administration of his estate and effects was on the 28th day of Aug., 1909, duly granted by the King’s Bench Division (Probate) of the High Court of Justice in Ireland to Ellen Magennis, of Ballintemple. It is hereby ordered and decreed that the appeal lodged in this matter be continued in the name of the said Ellen Magennis as such administratrix in the place of the said John Magennis.”