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RULE 17

Default of Appearance to Writ

Affidavit of Service

(1) Where a defendant fails to enter an appearance to a writ of summons within the time allowed and the plaintiff wishes to proceed under this rule, he shall file an affidavit of service of the writ on that defendant. (MR 102; ER 13/7.)

Affidavit of Search

(2) It is not necessary to file an affidavit of search prior to proceeding as permitted under this rule. (O. 41, r. 2.)

Claim for Debt or Liquidated Demand

(3) Where the plaintiff's claim against a defendant is solely for recovery of a debt or liquidated demand and that defendant fails to enter an appearance within the time allowed, the plaintiff may enter final judgment against that defendant for a sum not exceeding that claimed, interest if entitled, and costs, and may proceed with the action against any other defendant. (MR 103, 104; ER 13/1.)

Idem

(4) For the purposes of subrule (3), a claim may be treated as a claim for a liquidated demand notwithstanding that part of the claim is for interest accruing after the date of the writ, and the interest shall be computed from the date of the writ to the date of entering judgment. (ER 13/1.)

Claim for Unliquidated Damages

(5) Where the plaintiff's claim against a defendant is solely for unliquidated damages, and that defendant fails to enter an appearance within the time allowed, the plaintiff may enter judgment against that defendant for damages to be assessed and costs, and may proceed with the action against any other defendant. (MR 105, ER 13/2.)

Claim for Detention of Goods

(6) Where the plaintiff's claim against a defendant relates solely to the detention of goods, and that defendant fails to enter an appearance within the time allowed, the plaintiff, at his option, may enter either

(a) judgment against that defendant for the delivery of the goods, or their value to be assessed, and costs, or

(b) judgment for the value of the goods to be assessed and costs, and may proceed with the action against any other defendant. (MR 105; ER 13/3.)

Multiple Claims

(7) Where the plaintiff's claim against a defendant includes one or more of the claims referred to in subrule (3) or (6) and another claim, and that defendant fails to enter an appearance within the time allowed, the plaintiff may enter against that defendant such judgment in respect of any claim as he would be entitled to enter under those subrules if that were his only claim, and may proceed with the action against that defendant and any other defendant. (MR 106, 107; ER 13/5.)

Method of Assessment

(8) Where a plaintiff has obtained judgment for damages or value to be assessed, he may set the matter down for trial but, unless the Court otherwise orders, the trial shall be set down at the same time as the trial of the action or issues against any other defendant. (New.)

Plaintiff May Proceed

(9) Where the plaintiff does not enter default judgment against a defendant who has failed to enter an appearance within the time allowed, the plaintiff may proceed with the action upon serving a statement of claim. (MR 108, 109, 112.)

Idem

(10) Where a writ has been served, but by reason of the defendant having thereafter satisfied the claim it has become unnecessary for the plaintiff to proceed with the action, then, if the defendant fails to enter an appearance within the time allowed, the plaintiff, with the leave of the Court, may enter judgment against that defendant for costs. (MR 109a; ER 13/6.)

Court May Set Aside or Vary Default Judgment

(11) The Court may set aside or vary any judgment entered pursuant to this rule. (MR 110; ER 13/9.)

Idem

(12) Where a plaintiff has obtained judgment under subrule (5), (6), or (7), instead of proceeding to trial to assess the damages or the value of the goods, he may apply to the Court and the Court may

(a) assess the damages or value of the goods summarily upon affidavit or other evidence,

(b) order an assessment, an inquiry, or an accounting,

(c) give directions as to the trial or hearing of the assessment or determination of value, or

(d) make such other order as it thinks just. (New.)

RULE 18

Summary Judgement in Action

Application for

(1) In an action in which an appearance has been entered, the plaintiff, on the ground that there is no defence to the whole or part of a claim, or no defence except as to amount, may apply to the Court for judgment on an affidavit setting out the facts verifying the claim or part of the claim and stating that the deponent knows of no fact which would constitute a defence to the claim or part of the claim except as to amount. (MR 115, 116; ER 14/1, 14/2.)

Order for

(2) On the hearing of an application under subrule (1 ), the Court may

(a) give such directions as may be required for the examination of a party or witness, or for the production of a book or document or copy thereof, or for the making of further inquiries,

(b) grant judgment for the plaintiff on the whole or part of the claim,

(c) impose terms on the plaintiff, including a stay of execution of any judgment, until the determination of the defendant's counterclaim or third-party proceeding,

(d) allow the defendant to defend the whole or part of the claim, either unconditionally or on terms relating to giving security, time, the mode of trial, or otherwise,

(e) order an inquiry, assessment, or accounting under Rule 32,

(f) give directions as to the trial or hearing of the claim or part thereof on affidavit or otherwise,

(g) with the consent of all the parties, dispose of the action finally in a summary manner, with or without pleading or affidavits,

(h) where the claim is for the delivery of a specific article, order the delivery of the article,

(i) where the claim is for the possession of land on the ground of forfeiture for non-payment of rent, grant relief against the forfeiture,

(j) award costs, or

(k) grant any other order or judgment it thinks just. (MR 115, 117, 118, 120, 120a, 120b, 120c, 120d; ER 14/3,14/4,14/6, 14/7, 14/9, 14/10.)

Continuing Proceedings After Summary Judgment

(3) Where a plaintiff obtains judgment under subrule (2), he may continue the action in respect of any remaining part of the claim, any other claim, or against any other defendant. (MR 119; ER 14/8.)

Summary Judgment on Counterclaim or Third-party Proceeding

(4) This rule applies, mutatis mutandis, to a counterclaim or third-party proceeding. (ER 14/5.)

Setting Aside or Varying Summary Judgment

(5) A judgment given against a party who does not appear at the hearing of an application under this rule may be set aside or varied by the Court. (ER 14/11.)

Summary Judgment for Defendant

(6) In an action in which an appearance has been entered, the defendant, on the ground there is no merit in the whole or part of the claim, may apply to the Court for judgment on an affidavit setting out the facts verifying the defendant's contention that there is no merit in the whole or part of the claim and stating that the deponent knows of no facts which would substantiate the whole or part of the claim. (New.)

Order for Summary Judgment for Defendant

(7) On the hearing of an application under subrule (6) the Court may

(a) dismiss the action,

(b) make any order referred to in subrule (2), applied mutatis mutandis,

(c) grant any other order it thinks just. (New.)

RULE 19

Pleadings Generally

Contents

(1) A pleading shall be as brief as the nature of the case will permit and shall contain a statement in summary form of the material facts on which the party relies, but not the evidence by which the facts are to be proved. (MR 198.)

Idem

(2) The effect of any document or the purport of any conversation referred to in a pleading, if material, shall be stated briefly and the precise words of the documents or conversation shall not be stated, except in so far as those words are themselves material. (MR 217, 220.)

Idem

(3) A party need not plead a fact if it is presumed by law to be true or if the burden of disproving it lies on the other party. (MR 221; ER 18/7.)

Idem

(4) A party need not plead the performance of a condition precedent necessary for his case, unless the other party has specifically denied it in his pleadings. (MR 210, 217; ER 18/7.)

Form

(5) A pleading shall be divided into paragraphs numbered consecutively, each allegation being contained in a separate paragraph. (MR 200; ER 18/6.)

Matters Arising Since Commencement

(6) A party may plead a matter which has arisen since the commencement of the proceeding. (MR 278; ER 18/9.)

Inconsistent Allegations

(7) A party shall not plead an allegation of fact or a new ground or claim inconsistent with his previous pleading. (MR 212.)

Alternative Allegations

(8) Subrule (7) does not affect the right of a party to make allegations in the alternative or to amend or apply for leave to amend a pleading. (ER 18/ 10.)

Raising a Point of Law

(9) A party may raise any point of law by his pleadings. (MR 282; ER 18/11.)

Status Admitted

(10) Unless the incorporation of a corporate party or the office or status of a party is specifically denied, it shall be deemed to be admitted. (MR 223a.)

Where Particulars Necessary

(11) Where the party pleading relies on misrepresentation, fraud, breach of trust, wilful default, or undue influence, and where particulars may be necessary, full particulars (with dates and items if applicable) shall be stated in the pleading. If the particulars of debt, expenses, or damages are lengthy, the party may refer to this fact and instead of pleading the particulars shall deliver the particulars in a separate document either prior to or with the pleading. (MR 202; ER 18/12.)

Particulars in Libel or Slender

(12) In an action for libel or slander,

(a) where the plaintiff alleges that the words or matter complained of were used in a derogatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of that sense, and

(b) where the defendant alleges that in so far as the words complained of consist of statements of fact, they are true in substance and in fact, and that in so far as they consist of expressions of opinion, they are fair comment on a matter of public interest, he shall give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters he relies on in support of the allegation that the words are true. (MR202, 218a; ER 82/3.)

Set-off or Counterclaim

(13 ) A defendant in an action may set off or set up by way of counterclaim any right or claim, whether the set-off or counterclaim is for damages or not, so as to enable the Court to pronounce a final judgment on all claims in the same action. (MR 199; ER 18/17.)

Filing and Delivery of Pleadings

(14) A pleading shall be filed and a copy delivered to all parties of record and shall contain the style of proceeding, the description of the pleading, and the name and address for delivery of the party delivering the same. (MR 206, 207; ER 18/6.)

Pleading After the Statement of Claim

(15) In a pleading subsequent to a statement of claim a party shall plead specifically any matter of fact or point of law that

(a) he alleges makes a claim or defence of the opposite party not maintainable,

(b) if not specifically pleaded, might take the other party by surprise, or

(c) raises issues of fact not arising out of the preceding pleading. (MR 211; ER 18/8 (1).)

Order for Particulars

(16) The Court may order a party to deliver further and better particulars of a matter stated in a pleading. (MR 203; ER 18/12 (3) .)

Demand for Particulars

(17) Before applying to the Court for particulars, a party shall demand them in writing from the other party. (MR 203a; ER 18/12.)

Demand for Particulars Not a Stay of Proceedings

(18) A demand for particulars shall not operate as a stay of proceedings or give an extension of time, but a party may apply for an extension of time for delivering a pleading on the ground that he cannot answer that pleading until particulars are provided. (MR 204.)

Denial Required if Fact Not Admitted

(19) An allegation of fact in a pleading, if not denied or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant or mentally incompetent person. (MR 209; ER 18/13.)

General Denial Sufficient

(20) It is not necessary in a pleading to deny specifically each allegation made in the preceding pleadings, but a general denial is sufficient with respect to those allegations which are not admitted. (MR 213; ER 18/13.)

Substance to Be Answered

(21) Where a party in a pleading denies an allegation of fact in the previous pleading of the opposite party, he shall not do so evasively but shall answer the point of substance. (MR 215; ER 18/13 Note 6.)

Denial of Contract

(22) Where a contract, promise, or agreement is alleged in a pleading, a bare denial of it by the opposite party shall be construed only as a denial of fact of the express contract, promise, or agreement alleged, or of the matters of fact from which it may be implied by law, and not as a denial of the legality or sufficiency in law of that contract, promise, or agreement. (MR 216.)

Allegation of Malice

(23) It is sufficient to allege malice, fraudulent intention, knowledge, or other condition of the mind of a person as a fact, without setting out the circumstances from which it is to be inferred. (MR 218; ER 18/12.)

Scandalous, Frivolous, or Vexatious Matters

(24) At any stage of a proceeding the Court may order to be struck out or amended the whole or any part of an endorsement, pleading, petition, or other document on the ground that

(a) it discloses no reasonable claim or defence as the case may be, or

(b) it is unnecessary, scandalous, frivolous, or vexatious, or

(c) it may prejudice, embarrass, or delay the fair trial or hearing of the proceeding, or

(d) it is otherwise an abuse of the process of the Court,

and may order the proceeding to be stayed or dismissed or judgment to be entered and may order the costs of the application to be paid as between solicitor and client. (MR 223, 225, 284, 531; ER 18/19, 41/6.)

Idem

(25) No evidence is admissible on an application under subrule (24) (a). (New.)

General Relief

(26) A pleading need not ask for general or other relief. (MR 230; ER 18/15.)

RULE 20

Statement of Claim

Form

(1) A statement of claim shall be in Form 11. (New.)

Delivery

(2) The plaintiff shall file and deliver a statement of claim either with the writ of summons or within 21 days after appearance. (MR 225; ER 18/1.)

Altering Claim From That Endorsed on the Writ

(3) In his statement of claim the plaintiff may alter, modify, or extend his claim without amending the endorsement on the writ. (MR 228; ER 18/25.)

Place of Trial

(4) A statement of claim shall show the proposed place of trial. (MR 229; ER 18/6.)

Specific Relief

(5) A statement of claim shall state the specific relief which the plaintiff claims, and may ask for relief in the alternative. (MR 230; ER 18/15.)

RULE 21

Statement of Defence and Counterclaim

Form

(1) A statement of defence shall be in Form 12. (New.)

Bills of Exchange

(2) In an action on a bill of exchange, a promissory note, or a cheque, a statement of defence in denial shall deny some matter of fact, e.g., the drawing, making, endorsing, accepting, presenting, or notice of dishonour of the bill or note. (MR 235; ER 18/13.)

Contracts

(3) In an action for money due under a contract, a statement of defence shall specifically deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed. (MR 236.)

Damages

(4) No denial is necessary as to damages claimed or their amount, but they shall be deemed to be put in issue in all cases unless expressly admitted. (MR 237; ER 18/13.)

Delivery

(5) Where a defendant has entered an appearance he shall file and deliver his statement of defence and any counterclaim to the plaintiff within 14 days from the time limited for appearance or from the delivery of the statement of claim, whichever is the later. (MR 239; ER 18/2.)

Counterclaim

(6) A counterclaim shall be pleaded separately, shall be in Form 13, and may be included in the same document as the statement of defence. (ER 18/3.)

Idem

(7) The parties shall be referred to in a counterclaim in their original capacities and the terms "plaintiff by way of counterclaim" and "defendant by way of counterclaim" shall not be used except as provided in subrules (8) to (11). (New.)

Counterclaim Against Plaintiff and Another Person

(8) Where a defendant sets up a counterclaim which raises questions between himself and the plaintiff along with any other person, the defendant may join that person as a party against whom the counterclaim is made. (MR 244; ER 15/3, 18/8.)

Idem

(9) Where the person referred to in subrule (8) is not a party to the original action, his name shall be added to the style of proceeding as "defendant by counterclaim."

Idem

(10) Where the person referred to in subrule (8) is a party to the original action, the defendant shall deliver the counterclaim to him within the period in which he is required to deliver it to the plaintiff. (ER 15/3.)

Idem

(11) Where the person referred to in subrule (8) is not a party to the original action, a notice in Form 14 shall be filed and together with the counterclaim served on that person and he may enter an appearance to it, and Rules 17, 18, and 25 apply mutatis mutandis as though he were a defendant to a writ of summons. (MR 245, 246.)

Defence to Counterclaim

(12) A person served with a counterclaim becomes a defendant to the counterclaim from the time of service with the same rights and obligations in respect of his defence to the counterclaim or otherwise as a defendant. (MR 247; ER 15/3.)

Separate Trial of Counterclaim

(13) Where, on the application of a party against whom a counterclaim is made, it appears that the subject-matter of the counterclaim ought to be dealt with separately, the Court may order that the counterclaim be struck out or tried separately or may make such other order as it thinks just. (MR 248; ER 15/2.)

Where Action Stayed or Discontinued

(14) Where, in an action in which the defendant has set up a counterclaim, the action of the plaintiff is stayed, discontinued, or dismissed, the counterclaim may proceed. (MR 249; ER 15/2.)

Judgment

(15) Where a set-off or counterclaim establishes a defence to the plaintiff's claim, the Court may give judgment for the defendant for any balance in his favour or for such other relief as the Court thinks just. (MR 250; ER 15/2.)

RULE 22

Third-party Procedure

Issue of Third-party Notice

(1) Where a defendant who has entered an appearance claims against any person, whether or not that person is a party to the action (in these rules 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, or

(c) that any question or issue relating to or connected with the original 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 defendant and the third party, or between any or either of them,

the defendant may issue in the same manner as a writ of summons a third-party notice in Form 15 setting out a statement of the defendant's claim against the third party. (MR 170, 170a, 170i; ER 16/1.)

Delivery and Service of Third-party Notice

(2) A defendant issuing a third-party notice shall forthwith deliver to the plaintiff a copy of the notice and serve the third party with the notice and copies of all the pleadings delivered to that time. (ER 16/1.)

Issue of Third-party Notice by a Third Party

(3) Where a person served with a third-party notice claims to be entitled to claim over against another person, he may in the same manner as a defendant issue a third-party notice, and this rule applies mutatis mutandis. (MR 170h; ER 16/9.)

Application to Set Aside Notice

(4) At any time, upon application, the Court may set aside a third-party notice. (ER 16/4.)

Appearance

(5) A third party may enter an appearance in accordance with Rule 14. (MR 170c; ER 16/3.)

Effect of Appearance by Third Party

(6) Where the third party has entered an appearance to the third-party notice,

(a) he shall be served with all subsequent pleadings in the action, and

(b) he shall be in the same position in the third-party proceedings as though he were a defendant in an action brought by the party issuing the third-party notice as plaintiff against him for the relief claimed. (MR 170b, 170ee; ER 16/1.)

Statement of Defence

(7) Where a third party has entered an appearance and desires to dispute his liability to the party issuing the notice, he shall file and deliver his statement of defence to the party issuing the third-party notice within 14 days after entering the appearance, unless the notice has been served outside the jurisdiction, in which case Rule 13 (6) applies mutatis mutandis. (New.)

Reply

(8) The defendant shall file and deliver any reply to a third party's statement of defence within 7 days after delivery of that statement. (New.)

Default by Third Party

(9) Where the third party defaults in filing a statement of defence to a third-party notice,

(a) he shall be deemed to admit the validity of any judgment given, whether by consent or otherwise, against the party issuing the third-party notice, and

(b) where the party issuing the third-party notice has satisfied the judgment against him, he may enter judgment against the third party to the extent of the contribution or indemnity claimed in the notice and with the leave of the Court in respect of any other relief or remedy claimed therein, or

(c) where the party issuing the third-party notice has not satisfied the judgment, he or the judgment-holder may apply to the Court for such judgment as the nature of the case requires, including judgment for the judgment-holder against the third party. (MR 170d, 170dd, 303; ER 16/5.)

Statement of Defence to Statement of Claim

(10) Where the third party has entered an appearance, he may file and deliver a statement of defence to the plaintiff's statement of claim, raising any defence open to the defendant, and then he shall be in the same position with respect to the conduct of the action as though he were a defendant. (MR 170ee; ER 16/4.)

Application for Directions

(11) A party affected by third-party proceedings may apply to the Court for directions. (MR 170e; ER 16/4.)

Third-party Proceedings Not to Prejudice Plaintiff

(12) A plaintiff should not be prejudiced or unnecessarily delayed by third-party proceedings, and the Court may impose terms to prevent prejudice or delay. (New.)

Trial

(13) The issue between the defendant and the third party may be tried at such time as the Court may direct. (MR 170f; ER 16/6.)

RULE 23

Reply and Subsequent Pleadings

Form

(1) A reply shall be in Form 16. (New.)

Delivery of Reply

(2) A plaintiff shall file and deliver any reply within 7 days after the statement of defence has been delivered. (MR 276; ER 18/3.)

Pleading Subsequent to Reply

(3) No pleading subsequent to reply shall be filed or delivered without leave of the Court. (MR 277; ER 18/4.)

Statement of Defence to Counterclaim

(4) Where a counterclaim is pleaded, the statement of defence thereto shall be in Form 17 and shall be subject to the rules applicable to statements of defence. (MR 277b; ER 18/18.)

Close of Pleadings

(5) Where no reply to a statement of defence, to a statement of defence to a counterclaim, or to a subsequent pleading, is delivered within the time allowed, the pleadings shall be deemed to be closed and material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue. (MR 277c, 302; ER 18/14, 18/20.)

Failure to Reply

(6) Where no reply to a statement of defence is delivered, a joinder of issue on that defence is implied. (MR 214; ER 18/14.)

No Joinder of lssue

(7) No reply that is a simple joinder of issue shall be filed or delivered. (MR 214; ER 18/14.)

RULE 24

Amendment

When Amendment May Be Made

(1) A party may amend an originating process or pleading issued or filed by him

(a) once without leave of the Court, at any time prior to delivery of the notice of trial or hearing,

(b) at any time with the written consent of all the parties, and

(c) at any time with leave of the Court. (MR 305, 306, 307, 310, 316; ER 20/1, 20/3, 20/5, 20/8, 20/11.)

How Amendments Made

(2) Where an amendment is made, a new document, being a copy of the original document but amended and bearing the date of the original, shall be filed and delivered to the other parties of record. (MR 312; ER 20/10.)

Idem

(3) An amendment to a document shall be dated, underlined, and designated as such. (MR 313.)

Service of Amended Pleading

(4) Unless the Court otherwise orders, service on a party of an amended originating process or pleading shall be required if the original has been served on that party and no appearance has been entered or, in the case of a third-party notice, no statement of defence has been filed. (New.)

Amendment at Trial

(5) Unless the Court otherwise orders, where an amendment is granted during a trial or hearing, an order need not be taken out and the amended document need not be filed, delivered, or served. (MR 312, 313; ER 20/10.)

Service or Delivery of Amended Document

(6) Unless the Court otherwise orders, where a party amends a document pursuant to subrule (1), he shall deliver copies of the amended document to all the parties of record within 7 days after its amendment and, where service is required under subrule (4), he shall serve copies on the persons required to be served as soon as reasonably possible and before taking any further step in the proceeding. (MR 314.)

Time for Appearance to Amended Writ or Petition

(7) Where a party is served with an amended writ of summons or petition pursuant to subrule (4), he has the same period of time for entering an appearance to which he was entitled with respect to the original document. (MR 309, 314; ER 20/3.)

Amendments Consequent Upon Amendment

(8) Where an amended statement of claim, counterclaim, or third-party notice is served on or delivered to an opposing party,

(a) the opposing party, if he has already delivered his statement of defence, may amend his statement of defence, and

(b) the period for filing and delivering his statement of defence or amended statement of defence is 14 days after the amended pleading is delivered to him. (MR 309; ER 20/3.)

Failure to Deliver Amended Statement of Defence

(9) Where a party does not deliver an amended statement of defence as provided in subrule (a), he shall be deemed to rely upon his original statement of defence. (MR 309; ER 20/3, 20/9.)

RULE 25

Default of Pleading

Default in Delivery of Statement of Claim

(1) Where a plaintiff has not filed and delivered a statement of claim within the time allowed, the Court, on the application of the defendant, may order the action to be dismissed or may make such other order as it thinks just. (MR 290; ER 19/1.)

Affidavit Proving Delivery

(2) Where a defendant fails to deliver a statement of defence within the time allowed and the plaintiff wishes to proceed under this rule, he shall file an affidavit proving delivery of the statement of claim and the defendant's failure to deliver a statement of defence. (ER 19/4, 19/5, 19/6, 19/7.)

Affidavit of Search

(3) It is not necessary to file an affidavit of search prior to proceeding as permitted under this rule. (O. 41, r. 2.)

Claim for Debt or Liquidated Demand

(4) Where the plaintiff's claim against a defendant is solely for recovery of a debt or liquidated demand, and that defendant fails to file and deliver a statement of defence within the time allowed, the plaintiff may enter final judgment against that defendant for a sum not exceeding that claimed, interest if entitled and costs and may proceed with the action against any other defendant. (MR 291; ER 19/2.)

Idem

(5) For the purpose of subrule (4), a claim may be treated as a claim for a liquidated demand notwithstanding that part of the claim is for interest accruing after the date of the writ of summons, and the interest shall be computed from the date of the writ to the date of entering judgment. (ER 19/2.)

Claim for Unliquidated Damages

(6) Where the plaintiff's claim against a defendant is solely for unliquidated damages, and that defendant fails to file and deliver a statement of defence within the time allowed, the plaintiff may enter judgment against that defendant for damages to be assessed and costs and may proceed with the action against any other defendant. (MR 293; ER 19/3.)

Claim for Detention of Goods

(7) Where the plaintiff's claim against a defendant relates solely to the detention of goods, and that defendant fails to file and deliver a statement of defence within the time allowed, the plaintiff, at his option, may enter either

(a) judgment against that defendant for the delivery of the goods, or their value to be assessed and costs, or

(b) judgment for the value of the goods to be assessed and costs, and may proceed with the action against any other defendant. (MR 293; ER 19/4.)

Multiple Claims

(8) Where the plaintiff's claim against a defendant is for one or more of the claims referred to in subrule (4) or (7) and another claim, and that defendant fails to file and deliver a statement of defence within the time allowed, the plaintiff may enter against that defendant such judgment in respect of any claim as he would be entitled to enter under those subrules if that were his only claim and may proceed with the action against that defendant and any other defendant. (MR 292, 294, 295; ER 19/6.)

No Defence to Part of Claim

(9) Where a statement of defence answers only part of the claim in the statement of claim, the plaintiff, with leave of the Court, may enter such judgment in respect of the unanswered claim as he would be entitled to enter under subrules (4) to (7) if no statement of defence were filed. (MR 298.)

No Execution on Default Judgment Where There Is a Counterclaim

(10) Unless the Court otherwise orders, where there is a counterclaim the plaintiff shall not issue execution on a judgment obtained under this rule until the entire action has been disposed of. (New.)

Default in Other Claims

(11) In an action for a claim not referred to in subrules (4) to (7), where the defendant fails to file and deliver a statement of defence, the Court, on the application of the plaintiff, may exercise any of its powers under Rule 18 (2). (MR 108, 109, 300; ER 19/7.)

Default by One of Several Defendants

(12) Where in any action mentioned in subrule (11) there are several defendants and one or more defaults in filing and delivering a statement of defence, the Court, on the application of the plaintiff, may proceed as in subrule (11) or direct the matter to stand until the trial of the action. (MR 301; ER 19/7.)

Method of Assessment

(13) Where a plaintiff has obtained judgment for damages or value to be assessed, he may set the matter down for trial but, unless the Court otherwise orders, the trial shall be set down at the same time as the trial of the action or issues against any other defendant. (New.)

Court May Set Aside or Vary Default Judgment

(14) The Court may set aside or vary any judgment entered pursuant to this rule. (MR 304; ER 19/9.)

RULE 26

Discovery and Inspection of Documents

Delivery of and Answer to Demand for Discovery of Documents

(1) A party to an action may deliver to any other party a demand for discovery of the documents which are or have been in his possession or control relating to any matter in question in the action, and the other party shall comply with the demand within 21 days by delivering a list of the documents that are or have been in his possession or control relating to every matter in question in the action. The list shall enumerate the documents in a convenient order with a short description of the documents. (MR 354, 355a; ER 24/1, 24/2, 24/5.)

Claim for Privilege

(2) Where it is claimed that a document is privileged from production, the claim must be made in the list of documents with a statement of the grounds of the privilege. (ER 24/5.)

Affidavit Verifying List of Documents

(3) The Court may order a party to deliver an affidavit verifying a list of documents. (MR 355; ER 24/3.)

Application Respecting a Specific Document

(4) The Court, at any time, on the application of a party, may require any other party to deliver an affidavit stating whether a document or class of documents specified or described in the application is or has been in his possession or control and, if not then in his possession or control, when he parted with it and what has become of it. (MR 361.)

Idem

(5) An application for an order under subrule (4) shall be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought has or at some time had in his possession or control the document or class of documents specified or described in the application and that the document relates to one or more of the matters in question in the action. (MR 361; ER 24/7.)

Cross-examination on Affidavit

(6) The Court may order a party to attend and be cross-examined on an affidavit delivered under this rule. (New.)

Inspection of Documents

(7) A party who has delivered a list of documents to any other party shall allow the other party to inspect and copy the documents listed, except those which he objects to produce, and when he delivers the list he shall also deliver a notice stating a place where the documents may be inspected and copied during normal business hours. (MR 357; ER 24/9.)

Production of Document Referred to in Pleadings

(8) At any time a party may deliver a notice to any other party, in whose pleadings or affidavits reference is made to a document, requiring him to produce that document; and within 2 days the other party shall deliver a notice stating a place where the document may be inspected and copied during normal business hours or stating that he objects to produce the document and the grounds of the objection. (MR 357, 359; ER 24/10.)

Copies of Documents

(9) Where a party is entitled to inspect documents in the possession of another party, the other party shall, on request, deliver copies of any of the documents, if reproducible, on payment in advance of the cost of reproduction and delivery. (MR 357; ER 24/9, 24/10.)

Order to Produce Document

(10) The Court may order the production of a document for inspection and copying by any party or by the Court at such time, place, and manner as it thinks just. (MR 356, 360; ER 24/11, 24/12, 24/13.)

Idem

(11) Where a document is in the possession or control of a person who is not a party, the Court, on notice to the person and all other parties, may order production and inspection of the document or preparation of a certified copy that may be used instead of the original. (MR 361, 362a; ER 24/7.)

Inspection of Document by Court

(12) Where, on an application for production of a document, production is objected to, the Court may inspect the document for the purpose of deciding the validity of the objection. (MR 361.)

Supplementary List of Documents

(13) Where, after a list of documents has been delivered under this rule,

(a) it comes to the attention of the party delivering it that the list was inaccurate or incomplete, or

(b) a document relating to a matter in question in the action comes into the party's possession or control after the delivery of the list,

the party shall deliver forthwith a supplementary list specifying the inaccuracy or document. (New.)

Party May Not Use Document

(14) Unless the Court otherwise orders, where a party fails to make discovery of or produce for inspection or copying a document as required by this rule, he may not put the document in evidence in the proceeding. (New.)

Determination of Issue Before Discovery

(15) Where the party from whom discovery or inspection of a document is sought objects to the same, the Court, if satisfied that for any reason it is desirable that any issue or question in dispute in a proceeding should be determined before deciding on the right to discovery or inspection, may order that the issue or question be determined first and reserve the question of discovery or inspection. (MR 362; ER 24/4.)

RULE 27

Examination for Discovery

Leave of the Court Not Required

(1) Subject to this rule an examination for discovery may take place without leave of the Court at any time before the trial of an action. (MR 370c.)

Oral Examination on Oath

(2) An examination for discovery is an oral examination on oath. (MR 370c.)

Of Party Adverse in Interest

(3) A party to an action may examine for discovery any party adverse in interest. (MR 370c.)

Examination of Director, Etc.

(4) A person who is or has been a director, officer, employee, agent, or external auditor of a party may be examined for discovery. (MR 370cc.)

Examination of Second Director, Etc.

(5) No party, after having examined a person referred to in subrule (4), may examine any other person referred to in that subrule without leave of the Court. (MR 370ccc.)

Corporation to Name Person for Examination

(6) Where a corporation is a party it shall disclose the name of a person to be examined who is knowledgeable concerning the matters in question in the action. (New.)

Examination of Partners

(7) Where a partnership is a party, one or more of the partners may be examined for discovery. (MR 370cccc.)

Examination of Party for Whose Benefit Action Brought

(8) Subject to subrule (11), a person for whose immediate benefit an action is brought or defended may be examined for discovery. (MR 370d.)

Examination of Assignor

(9) Where an action is brought by an assignee, the assignor may be examined for discovery. (MR 370dd.)

Examination of Guardian and Infants

(10) Where an infant is a party, the infant, his guardian, and his guardian ad litem may be examined for discovery. (MR 370ddd.)

Examination of Mentally Incompetent Person

(11) Where a mentally incompetent person is a party, his guardian ad litem and his committee may be examined for discovery, but the mentally incompetent person may not be examined without leave of the Court. (New.)

Examination of Bankrupt

(12) Where a trustee in bankruptcy is a party, the bankrupt may be examined for discovery. (New.)

Time

(13) An examination for discovery by a plaintiff may take place after the expiration of time for delivery of the statement of defence of the party to be examined; and an examination by a defendant may take place at any time after he has delivered his statement of defence. (MR 370e.)

Place

(14) Unless the Court otherwise orders, an examination for discovery shall take place in the county where the person to be examined resides. (MR 370ff.)

Before Official Reporter

(15) An examination for discovery shall be taken before an Official Reporter. (MR 370eee, 370jjj.)

Appointment for

(16) Where a party is entitled to examine a person for discovery, he may obtain an appointment from an Official Reporter, and the person to be examined, on being served with a notice in Form 18 and being tendered the proper witness fees at least 2 days before the examination, shall attend and submit to examination. (MR 370f.)

Delivery of Notice

(17) The party examining for discovery shall deliver a copy of the notice to the solicitor for the person to be examined, where he has a solicitor in the action, at least 2 days before the examination. (MR 370fff.)

Delivery of Notice to Solicitor

(18) Instead of service of the notice, delivery thereof and tender of the proper fees to the solicitor for the person to be examined shall be sufficient if made 7 days before the date appointed for the examination. (MR 370g.)

Idem

(19) Where a solicitor receives a notice under this rule, he shall forthwith inform the person required to attend and shall pay the fees to his client. The fees shall not be attached. (MR 370gg.)

Production of Documents

(20) A person to be examined for discovery shall produce for inspection on the examination all documents in his possession or power, not privileged, relating to the matters in question in the action. (MR 370h; ER 24/2.)

Examination and Re-examination

(21) The examination of a person for discovery shall be in the nature of a cross-examination. The person examined may be re-examined on his own behalf or on behalf of a party not adverse in interest to him in relation to any matter respecting which he has been examined. After the re-examination he may be further examined by the examining party. (MR 370jj.)

Scope of Examination

(22) Unless the Court otherwise orders, a person being examined for discovery shall answer any question within his knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and is compellable to give the names and addresses of witnesses. (New.)

Idem

(23) In order to comply with subrule (22), a person being examined for discovery may be required to inform himself and the examination may be adjourned for that purpose. (New.)

Objections

(24) Where a person under examination, or his solicitor, objects to answer a question put to him, the question and the objection shall be taken down by the Official Reporter and the validity of the objection may be decided by the Court, which may order the person to submit to further examination. (MR 370l.)

How Recorded

(25) An examination for discovery shall be taken down in the form of question and answer, and copies of the transcript may be obtained by any person on payment of the proper fee. (MR 370jjj, 370 nnn.)

Application to Persons Outside British Columbia

(26) So far as is practical, this rule applies to a person residing out of British Columbia, and the Court, on application on notice to the person, may order the examination for discovery of the person at such place and in such manner as it thinks just and convenient. Unless the Court otherwise orders, delivery of the order and the notice may be made on, and payment of the proper fee may be made to, the solicitor for the person. (MR 370t, 370u.)

RULE 28

Pre-trial Examination of Witness

Order for

(1) Where a person, not a party to an action, may have material evidence relating to a matter in question in the action, the Court may order that he be examined on oath on the matters in question in the action and may, either before or after the examination, order that the examining party pay the costs of the person relating to the application and the examination on a solicitor and client basis. (New.)

Expert

(2) An expert retained or specially employed by another party in anticipation of litigation or preparation for trial may not be examined under this rule unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means. (New.)

Affidavit in Support of Application

(3) An application for an order under subrule (1) shall be supported by affidavit setting out

(a) the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material,

(b) where the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness has refused or neglected upon request by the applicant to give a responsive statement, either orally or in writing, relating to his knowledge of the matters in question, or that he has given conflicting statements. (New.)

Notice of Application

(4) Notice of an application under this rule shall be served on the proposed witness at least 7 days before the hearing of the application. (New.)

Subpoena

(5) Where a party is entitled to examine a person pursuant to this rule, by serving on that person a subpoena in Form 19, he may require him to bring to the examination

(a) any document in his possession or power relating to the matters in question in the action, without the necessity of identifying the document, and

(b) any physical object in his possession or power which the party contemplates tendering at the trial as an exhibit, but the subpoena shall identify the object. (MR 489; ER 39/4.)

Notice of Examination

(6) Notice of examination of a person under this rule shall be given by the examining party delivering copies of the subpoena to all parties of record not less than 7 days before the day appointed for the examination. (ER 38/9.)

Mode of Examination

(7) The proposed witness shall be cross-examined by the party who obtained the order, then may be cross-examined by any other party, and then may be further cross-examined by the party who obtained the order. (New.)

Application of Examination for Discovery Rules

(8) Rules 27 (15), 27 (20), and 27 (22) to (26) apply mutatis mutandis to an examination under this rule. (New.)

RULE 29

Discovery by Interrogatories

Service of and Answer to Interrogatories

(1) A party to an action may serve on any other party, or on a director, officer, partner, agent, employee, or external auditor of a party, interrogatories in Form 20 relating to a matter in question in the action, and the person to whom the interrogatories are directed shall, within 21 days, deliver an answer on affidavit to the interrogatories. (MR 343, 346, 350; ER 26/1.)

Where a Party Is a Body of Persons

(2) Where a party to an action is a body of persons, corporate or unincorporate, empowered to sue or to be sued, in its own name or in the name of an officer or other person, the Court, on the application of any other party, may make an order allowing him to serve interrogatories on the officer or member of the body specified in the order. (MR 347; ER 26/2.)

Time for Service

(3) Interrogatories may be served by a plaintiff after the expiration of time for delivery of the statement of defence of the party to be examined; and may be served by a defendant after he has delivered his statement of defence. (New.)

Where More Than One Person to Answer Interrogatories

(4) Where interrogatories are required to be answered by more than one person who is an officer, director, partner, agent, or employee of a party, the interrogatories shall state which of the interrogatories each person is required to answer. (ER 26/3.)

Objection to Answer Interrogatory

(5) Where a person objects to answering an interrogatory on the ground of privilege or on the ground that it does not relate to a matter in question in the action, he may make the objection in his affidavit in answer. (MR 348; ER 26/4.)

Insufficient Answer to Interrogatory

(6) Where a person to whom interrogatories have been directed answers any of them insufficiently, the Court may require him to make a further answer either by affidavit or on oral examination. (MR 363; ER 26/5.)

Application to Strike Out Interrogatory

(7) Where a party objects to an interrogatory on the grounds that it is not necessary for disposing fairly of the action or that the costs of answering would be unreasonable, he may apply to the Court to strike out the interrogatory, and the Court shall take into account any offer by him to make admissions, to produce documents, or to give oral discovery. (New.)

Delivery of Interrogatories to Solicitor

(8) Instead of service of the interrogatories, delivery of the interrogatories to the solicitor for the person to whom the interrogatories are directed shall be sufficient. (New.)

Idem

(9) Where a solicitor receives interrogatories under this rule, he shall forthwith inform the person to whom the interrogatories are directed. (New.)

RULE 30

Physical Examination and Inspection

Order for Medical Examination

(1) Where the physical or mental condition of a person is in issue in a proceeding, the Court may order that the person submit to examination by a medical practitioner. The Court may make such order respecting the examination and any expenses connected therewith as it thinks just, including an order that the result of the examination be put in writing and that copies be made available to interested parties. (MR 370v.)

Subsequent Examinations

(2) The Court may order further examination under this rule. (MR 370w.)

Questions by Examiner

(3) A medical practitioner who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined. (New.)

Order for Inspection and Preservation of Property

(4) Where the Court considers it necessary or expedient for the purpose of obtaining full information or evidence, it may order the production, inspection, and preservation of any property and authorize samples to be taken or observations to be made or experiments to be conducted on or with the property. (MR 659; ER 29/2.)

Entry Upon Land or Buildings

(5) For the purpose of enabling an order under this rule to be carried out, the Court may authorize a person to enter upon any land or building. (MR 659; ER 29/2.)

Application to Persons Outside British Columbia

(6) Rule 27 (26) applies mutatis mutandis to examinations and inspections ordered under this rule. (New.)

RULE 31

Admissions

Notice to Admit

(1) By delivery of a notice to admit in Form 21, a party may request any other party to admit, for the purposes of a proceeding only, the truth of a fact or the authenticity of a document specified in the notice. (MR 372, 373, 374, 375; ER 27/2, 27/5.)

Effect of Notice to Admit

(2) Unless the Court otherwise orders, the truth of a fact or the authenticity of a document specified in the notice to admit shall be deemed to be admitted, for the purposes of the proceeding only, unless within 7 days the party receiving the notice delivers to the party giving the notice, a written statement that

(a) specifically denies the truth of that fact or the authenticity of that document, or

(b) sets forth in detail the reasons why he cannot make the admission, or

(c) states that the refusal to admit the truth of that fact or the authenticity of that document is made on the grounds of privilege or irrelevancy or that the request is otherwise improper, and sets forth in detail the reasons for the refusal. (MR 372, 374; ER 27/4, 27/5.)

Copy of Document to Be Attached

(3) Unless the Court otherwise orders, a copy of a document specified in a notice to admit shall be attached to the notice when delivered. (New.)

Withdrawal of Admission

(4) At any time the Court may allow a party to withdraw an admission or denial. (MR 374; ER 27/2.)

Application for Order on Admission

(5) Where an admission of the truth of a fact or the authenticity of a document is made by a party, any other party may apply to the Court for such order as he may be entitled to on the admission, without the determination of any other question between the parties, and the Court may make such order as it thinks just. (MR 376; ER 27/3.)

Unreasonable Refusal to Admit

(6) Where any party unreasonably denies or refuses to admit the truth of a fact or the authenticity of a document, the Court may order the party to pay the costs of proving the truth of the fact or the authenticity of the document and may award as a penalty such additional costs, or deprive a party of such costs, as the Court thinks just. (MR 242, 372, 374.)

RULE 32

Inquiries, Assessments, and Accounts

Direction for Inquiries, Assessments, or Accounts

(1) At any stage of a proceeding the Court may direct an inquiry, assessment, or accounting to be held by a Master, Registrar, or Special Referee. (MR 121, 122, 381, 780.)

Certificate as to Result

(2) The Court may direct that the result of an inquiry, assessment, or accounting held by a Master, Registrar, or Special Referee be certified by that person, and the certificate, when filed, shall be binding on the parties to the proceeding and judgment may be entered accordingly. (MR 565, 576, 827, 832.)

Report and Recommendation

(3) Where the Court does not direct that the result of an inquiry, assessment, or accounting be certified, then the result of the inquiry, assessment, or accounting shall be stated in the form of a report and recommendation to the Court. (New.)

Application to Vary or Confirm Recommendation

(4) On application by a party the Court may vary or confirm the recommendation or remit the matter. (MR 478.)

Time and Place of Hearing

(5) A Master, Registrar, or Special Referee may hold a hearing at a convenient time and place, may adjourn it from time to time, may administer oaths, take evidence, direct production of documents, and give general directions for the conduct of the hearing. (MR 479.)

Appointment

(6) A party proceeding with an inquiry, assessment, or accounting shall take out an appointment in Form 22 and shall serve notice thereof upon all parties of record or as directed by the Court. (New.)

Witnesses

(7) A party to a proceeding in which an inquiry, assessment, or accounting is held may subpoena any person, including a party, to give evidence at the hearing and to produce documents. (MR 779.)

Certificate or Recommendation to Be Filed and Served

(8) A Master, Registrar, or Special Referee shall state the result of an inquiry, assessment, or accounting in the form of a certificate or report and recommendation as directed, with or without reasons, and shall provide the party who took out the appointment with the certificate or report and recommendation and the party shall file it and deliver a copy to all persons served with notice under subrule (6). (MR 828.)

Opinion of the Court

(9) Before the Master, Registrar, or Special Referee has concluded a hearing he may, in a summary or other manner, ask the opinion of the Court on any matter arising in the hearing. (MR 831.)

Accounts of Executor, Trustee, Etc.

(10) A person may apply by petition for the furnishing of accounts by the executor or administrator of an estate, a trustee, a receiver, a liquidator, guardian, or partner. (MR 675, 765; ER 30/4, 43/9, 85/2.)

Special Directions

(11) The Court may give special directions as to the manner in which an inquiry, assessment, or accounting is to be taken or made, and the directions may include

(a) the manner in which the inquiry, assessment, or accounting is to be prosecuted,

(b) the evidence to be adduced in support thereof,

(c) the parties required to attend all or any part of the proceedings,

(d) the time within which each proceeding is to be taken, and

(e) a direction that persons whose interest can be classified shall constitute a class and be represented by the same solicitor and, where the persons cannot agree on the solicitor to represent them, the Court may appoint the solicitor to represent them;

and the Court may fix a time for the further attendance of the parties. (MR 382, 794, 803; ER 43/3, 44/4, 44/5.)

Varying Directions

(12) The Court may revoke or vary a direction given under subrule (11). (ER 44/4.)

Form of Account

(13) Where an account is directed to be taken, unless the Court otherwise orders, the accounting party shall make out his account and verify it by an affidavit to which the account shall be exhibited. The items on each side of the account shall be numbered consecutively. The accounting party shall file the affidavit and the account and deliver copies to all parties of record. (MR 383, 386, 675, 676, 679, 679a; ER 43/4.)

Particulars of Errors in Account

(14) A party who alleges that there are errors or omissions in an account shall file and deliver to all parties of record a notice thereof with brief particulars. (MR 384; ER 43/5.)

Recommendation on Accounting

(15) Where an accounting is directed, the certificate or report and recommendation shall state the result of the accounting and shall specify which of the items have been disallowed or varied and what additions or deletions have been made by way of surcharge or otherwise. (MR 830.)

Notice of Order

(16) (a) Where in a proceeding relating to

(i) the administration of the estate of a deceased person, or

(ii) the execution of a trust, or

(iii) the sale of any property,

the Court makes an order which directs any inquiry, assessment, or accounting to be taken or made, the Court may direct notice of the order in Form 23 to be served on any person interested in the estate or under the trust or in the property; and any person served with notice of an order in accordance with this rule shall, subject to paragraph (c), be bound by the order to the same extent as he would have been if he had originally been made a party to the action.

(b) The Court may dispense with service on a person in any case where it appears it is impractical for any reason to serve him and may also order that that person shall be bound by any order made to the same extent as if he had been served with notice thereof, and he shall be bound accordingly except where the order was obtained by fraud or non-disclosure of material facts.

(c) A person served with notice, within 28 days after service of the notice on him, without entering an appearance, may apply to the Court to discharge, vary, or add to the order.

(d) A person served with notice may, after entering an appearance in Form 7, take part in the proceeding. (MR 795, 797, 797a.)

RULE 33

Special Case

Statement of Special Case

(1) The parties to a proceeding may concur in stating a question of law or fact, or partly of law and partly of fact, in the form of a special case for the opinion of the Court. (MR 389.)

Court May Order Special Case

(2) The Court may order a question or issue arising in a proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be stated in the form of a special case. (MR 380, 390; ER 33/3.)

Form of Special Case

(3) A special case shall

(a) be divided into paragraphs numbered consecutively,

(b) state concisely such facts and set out or refer to such documents as may be necessary to enable the Court to decide the questions stated, and

(c) be signed by the parties or their solicitors. (MR 389, 391.)

Hearing of Special Case

(4) On the hearing of a special case, the Court and the parties may refer to any document mentioned in the special case, and the Court may draw from the stated facts and documents any inference, whether of fact or law, that might have been drawn therefrom if proved at a trial or hearing. (MR 389.)

Order After Hearing of Special Case

(5) With the consent of the parties, on any question in a special case being answered, the Court may grant specific relief or order judgment to be entered. (MR 394.)

RULE 34

Proceedings on a Point of Law

Point of Law May Be Set Down for Hearing

(1) A point of law arising from the pleadings, by consent of the parties or by order of the Court, may be set down by praecipe for hearing and disposed of at any time before the trial. (MR 282; ER 18/11.)

Court May Dispose of Whole Action

(2) Where in the opinion of the Court the decision on the point of law substantially disposes of the whole action or of any distinct claim, ground of defence, set-off, counterclaim, or reply, the Court may dismiss the action or make such order as it thinks just. (MR 282, 283; ER 18/11.)

RULE 35

Pre-trial Conference

Request for Pre-trial Conference

(1) A party, having delivered or received a notice of trial, may request the holding of a pre-trial conference at a time and place to be fixed by the Registrar. (New.)

Order for Pre-trial Conference

(2) On a request being received, or on its own initiative at any stage of an action, the Court may direct that a pre-trial conference be held. (MR 401.)

Agenda of Pre-trial Conference

(3) A pre-trial conference shall be attended by the solicitors for the parties, or the parties themselves, and shall consider

(a) the simplification of the issues,

(b) the necessity or desirability of amendments to pleadings,

(c) the possibility of obtaining admissions which might facilitate the trial,

(d) the quantum of damages,

(e) fixing a date for the trial, and

(f) any other matters that may aid in the disposition of the action or the attainment of justice. (MR 401.)

Order Following Pre-trial Conference

(4) Following a conference, the Court may make an order reciting the results of the conference and giving such directions as the Court thinks just, including, to the extent that it might make an order under Rule 39 (20), a direction that the trial or part of it be heard by the Court without a jury. The order shall control the subsequent course of the action unless modified at the trial or hearing to prevent injustice. (MR 402.)

Judge Presiding Not Seized

(5) A judge who presides at a pre-trial conference is not seized of the action, and a trial of the action may be heard by him or any other judge. (MR 403.)

RULE 36

Discontinuance and Withdrawal

Discontinuance by Plaintiff

(1) At any time before an action is set down for trial, a plaintiff may discontinue it in whole or in part against a defendant by filing and delivering a notice of discontinuance in Form 24 to each party of record. (MR 286; ER 21/1.)

Idem

(2) After an action has been set down for trial, a plaintiff may discontinue it in whole or in part against a defendant with leave of the Court. (MR 286; ER 21/2, 21/3.)

Withdrawal by Defendant

(3) A defendant may withdraw his statement of defence or any part thereof with respect to any plaintiff at any time by filing a notice of withdrawal in Form 25 and delivering a copy thereof to each party of record. (MR 286; ER 21/2.)

Costs and Default Procedure on Discontinuance or Withdrawal

(4) Subject to subrule (2), a person wholly discontinuing an action or wholly withdrawing his statement of defence against a party shall pay the costs of that party to the date of delivery of the notice of discontinuance or withdrawal. Where a plaintiff liable for costs under this rule subsequently brings a proceeding for the same or substantially the same claim before paying those costs, the Court may order the proceeding to be stayed until the costs are paid. (MR 286, 288, 289; ER 21/5, 62/3.)

Idem

(5) Where a plaintiff discontinues the whole or any part of an action in which a person has been joined as a third party, the third party, if the discontinuance disposes of the claim against him, is entitled to his costs and may apply to the Court for a direction as to who should pay them. (MR 286, 288.)

Idem

(6) A plaintiff's right to recover costs from a defendant under subrule (4) does not preclude him from recovering other costs properly incurred. (New.)

Idem

(7) Where a defendant wholly or partly withdraws his statement of defence under this rule, the plaintiff may proceed under Rule 25 as though the defendant had delivered no statement of defence or only a partial statement of defence. (ER 21/2, 62/3, 21/10.)

Discontinuance Not a Defence

(8) Unless otherwise ordered, the discontinuance of an action in whole or in part is not a defence to a subsequent proceeding for the same or substantially the same cause of action. (ER 21/4.)

Application to Counterclaim, Etc.

(9) This rule applies mutatis mutandis to a counterclaim, a third-party proceeding, and a petition. (New.)

RULE 37

Payment Into and Out of Court

Payment Into Court by Defendant

(1) At any time before the commencement of the trial a defendant may pay into Court a sum of money in satisfaction of the whole or part of a claim for which the plaintiff sues. (MR 255; ER 22/1.)

Allocation of Money in Court

(2) Where money belonging to a defendant is paid into Court pursuant to a garnishing order or other order of the Court, the defendant may allocate all or part of it as a payment into Court under this rule. (MR 265.)

Money to Remain in Court

(3) Money paid into Court shall remain in Court subject to further order unless the plaintiff elects to accept it pursuant to this rule. (MR 255aa; ER 22/1.)

Payment Into Court by Third Party

(4) At any time before the commencement of the trial a third party may pay into Court a sum of money in satisfaction of the whole or part of the defendant's claim against him. (ER 22/6.)

Payment Into Court Not an Admission

(5) Payment of money into Court shall not be deemed an admission of liability. (ER 22/1.)

Where Tender Before Action Pleaded

(6) Where a tender before action is pleaded, the sum alleged to have been tendered shall be paid forthwith into Court. (MR 255; ER 18/16, 22/1, 22/6.)

Notice of Payment In

(7) When a party pays moneys into Court he shall file a notice of payment in in Form 26 and shall forthwith deliver a copy to each party of record. Unless otherwise ordered by the Court, the notice shall specify the party for whom and the claim in respect of which payment in is made, and may specify the sum paid in respect of each claim. (MR 255; ER 22/1, 22/9.)

Acceptance of Money Paid In

(8) Subject to subrules (9) and (10), where money is paid into Court under this rule, except under subrule (6), a party, at any time before the commencement of the trial, may accept and take out of Court the whole sum or any one or more of the specified sums paid in, in satisfaction of his claim or claims, by filing and delivering to each party of record a notice in Form 27. (ER 22/3.)

Acceptance of Money Paid In by Third Party

(9) Money paid into Court by a third party shall not be taken out of Court by a defendant without leave of the Court. (New.)

Acceptance by Party Not Personally Entitled

(10) If a party is not personally entitled to the money, the money may only be accepted and paid out by leave of the Court. (New.)

Costs on Acceptance

(11) Where the defendant does not allege tender before action and the plaintiff takes the money in satisfaction of all his claims, the plaintiff may tax his costs reasonably incurred up to 7 days after delivery to him of a copy of the notice under subrule (7), and the defendant may tax his costs reasonably incurred after the expiry of 7 days after delivery to the plaintiff of the notice. (MR 255a; ER 62/10.)

Where Successful Defence of Tender

(12) Unless the Court otherwise orders, where the defendant alleges tender before action and at the trial succeeds on that defence, the defendant may tax his costs and the amount allowed him shall be paid out of the money in Court and the balance shall be paid to the plaintiff. (ER 62/5.)

Plaintiff's Election Where Tender Alleged

(13) Unless the Court otherwise orders, where the defendant alleges tender before action and the plaintiff elects to take the money in satisfaction, the defendant may tax his costs and the amount allowed him shall be paid out of the money in Court and the balance shall be paid to the plaintiff. (New.)

Payment In by Joint or Alternative Defendants

(14) Subject to subrule (15), no party sued jointly with another party may pay money into Court except jointly with that other party. (MR 255b; ER 22/1.)

Joint Defendants in Libel or Slander Action

(15) In an action for libel or slander against several defendants sued jointly, a defendant may pay money into Court and the plaintiff, at any time before the commencement of the trial, may elect to accept the sum paid into Court in satisfaction of his claim against that defendant by filing and delivering to each party of record a notice in Form 26. (MR 255b.)

Acceptance as a Stay

(16) Where money has been accepted pursuant to this rule, all further proceedings in the action or in respect of the specified claim, or part of the claim, except for recovery of costs, are stayed. (MR 255a; ER 22/3.)

Plaintiff Proceeding After Payment In

(17) Where the plaintiff proceeds with an action and recovers less than the amount paid into Court,

(a) he may tax his costs reasonably incurred up to delivery to him of a copy of the notice under subrule (7) and, provided the notice was delivered at least 7 days prior to the commencement of the trial, the defendant may tax his costs reasonably incurred after delivery of the notice to the plaintiff; but if the notice was delivered less than 7 days prior to the commencement of the trial, the costs of any steps taken by the parties subsequent to delivery shall be in the discretion of the Court, and

(b) the amount paid in shall be applied in satisfaction of the plaintiff's judgment after set-off of the defendant's costs, if any, and any balance shall be repaid to the defendant. (New.)

Idem

(18) Where the plaintiff proceeds with an action and judgment is given for the defendant in respect of the claim, the whole amount paid in by the defendant shall be repaid to him. (New.)

Defendant Proceeding After Payment In

(19) Where the defendant proceeds with his third-party proceeding and recovers less than the amount paid into Court,

(a) he may tax his costs reasonably incurred up to 7 days after delivery to him of a copy of the notice under subrule (7), and the third party may tax his costs reasonably incurred after the expiry of 7 days after delivery of the notice to the defendant, and

(b) the amount paid in shall be applied in satisfaction of the defendant's judgment after set-off of the third party's costs, if any, and any balance shall be repaid to the third party. (New.)

Idem

(20) Where the defendant proceeds with his third-party proceeding and judgment is given for the third party in respect of the claim, the whole amount paid in by the third party shall be repaid to him. (New.)

Payment In Not to Be Communicated to the Court

(21) Except in an action to which a defence of tender before action is pleaded, no statement of the fact that money has been paid into Court shall be inserted in the pleadings and no communication of that fact shall be made to the Court or a jury until all questions of liability and amount of the debt or damages have been decided. (MR 264; ER 22/7.)

Surrender of Counterclaim as Payment In

(22) Where a counterclaim is asserted, a defendant may offer to surrender his counterclaim, or may pay into Court a sum of money and offer to surrender his counterclaim, in satisfaction of one or more of the plaintiff's claims in settlement of the action and counterclaim. (New.)

Stay on Acceptance

(23) Where a counterclaim is accepted in satisfaction or part satisfaction, the counterclaim is stayed. (ER 22/3, 22/6.)

Application of Rules to Counterclaim

(24) Subrules (1) to (21) apply mutatis mutandis to the offer to surrender a counterclaim as though it were payment of money into Court. (ER 22/3.)

In Libel or Slander Actions

(25) A plaintiff in an action for libel or slander who takes money out of Court may apply to the Court for leave to make in open Court a statement in terms approved by the Court. (MR 255a.)

Payment to Solicitor

(26) Where provision is made in this rule for payment out to a party, the money may with the party's written authorization be paid to his solicitor. (ER 22/4.)

Special Circumstances

(27) In special circumstances the Court may order that payment out of moneys in Court be made to the solicitor for a party entitled to the moneys, rather than to the party. (O. 22, r. 20.)

Payment In for Infant

(28) Where money is paid into Court to the credit of an infant, a copy of the birth certificate of the infant, or other proof to the satisfaction of the Registrar of the name and date of birth of the infant, shall be filed, unless the Registrar dispenses with filing. (O. 22, r. 19.)

Payment Out of Money Held for Infant

(29) In support of an application for payment out of money paid in pursuant to subrule (28), the applicant shall file a declaration in Form 28. (New.)

| Rules 1-16 | Rules 17-37 | Rules 38-42  | Rules 43-59 | Rules 60-64 | Appendices |


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