53. In these Rules the following expressions have the meanings hereby assigned to them:—
“debt proceedings” or “ejectment proceedings”, where necessary, include proceedings for the enforcement of orders made in such proceedings;
“formal order” refers to the document issued by the court and includes a decree, a dismiss, an order under Article 107 of the Judgments Enforcement (Northern Ireland) Order 1981(1) and an attachment of earnings order under Article 99 of the said Order;
“process” includes an application for a duplicate of an order, and (save as expressly excepted by Rules 58 and 60) art enforcement or committal process under Articles 106 to 110 of the said Order of 1981.
54. A process shall be deemed to have been issued when it has been stamped, signed, and handed or sent by post to a summons server or to such other person as may be authorised to serve it, or to the clerk of petty sessions of the petty sessions district in which a proceeding is brought for delivery to a summons server or when service is effected in accordance with Rule 60.
55. Every process and every copy thereof for service shall be signed by the plaintiff or by his solicitor or firm of solicitors, or in the name of such solicitor by some person duly authorised to sign.
56. Processes shall be issued for hearing at such sittings of the court of summary jurisdiction as may from time to time be directed by the resident magistrate acting for the petty sessions district for which the court in which a proceeding is brought acts.
57.—(1) The amount of the costs of a process payable by the defendant if the claim is paid or, if possession of the premises the recovery of which is sought is surrendered before entry day as provided by Rule 66, shall be stated on the face of the process. If the amount of the claim is paid or if possession is surrendered and such costs are so paid before entry day the proceeding shall be stayed.
(2) The amount of the costs payable where the claim is paid or possession is surrendered or both, as the case may be, before entry day in accordance with this Rule shall be either fifty per centum of the solicitor's costs in column (2) in Table 1 of Schedule 2 or of the solicitor's costs in column (1) in Table 1 of Schedule 3, as appropriate, together with the plaintiff's outlay properly incurred to date of settlement.
(3) Where proceedings for arrears of rent or for sums due under Article 69 of the Order are joined with a claim for the recovery of the premises, the appropriate Table is that applicable to ejectment proceedings.
58.—(1) Except where otherwise provided by these Rules service of a process shall be effected—
(a)by delivering to the defendant personally a true copy thereof; or
(b)subject to paragraph (2), by leaving a true copy thereof for the defendant at his usual or last known place of abode or at his place of business with some person apparently over the age of sixteen years.
(2) Sub-paragraph (b) of paragraph (1) shall not apply to the service of an enforcement process or a committal process.
(3) Without prejudice to paragraph (1), a process in ejectment proceedings may be served on the tenant and on any person in actual possession or occupation of the land or premises.
(4) If for any reason service of a process issued in ejectment proceedings cannot be effected in accordance with paragraph (1) or (3), such process may be deemed to be served, if a true copy thereof is affixed to some conspicuous part of the premises.
(5) The provisions of this Rule shall be in addition to and not in derogation of the provisions of any enactment authorising the service of documents in any proceedings upon any person or body.
59.—(1) Subject to paragraph (2) and to Rules 60 and 130(2) no person other than a summons server for the petty sessions district in which proceedings are brought or in which the defendant resides shall have authority to serve a process.
(2) Where in any such district a summons server is absent or unable to carry out his duties through illness or other cause, or when the office of summons server is vacant, a process may be served by some other person, if permission for such other person to serve the process has been given by a resident magistrate or by the clerk of petty sessions and has been endorsed or signed by him on the original process.
(3) Nothing in this Rule shall affect the provisions of section 60 of the Miscellaneous Transferred Excise Duties Act (Northern Ireland) 1972(2).
60.—(1) Notwithstanding anything in Rules 58 and 59 where—
(a)it is made to appear to a resident magistrate or clerk of petty sessions that a process cannot be served because the defendant is evading service or admission cannot be gained to his residence or business premises or it is not reasonably practicable to serve the process otherwise, he may give permission by an endorsement signed by him on the original process for service to be effected by registered post or by the recorded delivery service or in such other manner as may seem to him appropriate or sufficient and such service shall be deemed to be sufficient service; or
(b)a solicitor represents that he is authorised to accept service of a process on behalf of any defendant, such service may be effected by the delivery by any person of a copy of the process to that solicitor provided that the solicitor endorses and signs on the original a memorandum stating that he is so authorised as aforesaid and that he accepts service accordingly.
(2) This Rule shall not apply to the service of an enforcement process or a committal process.
61. In all cases service of a process shall be effected at least ten days before the date of hearing.
62.—(1) A summons server shall keep a book (called a Process Book) in which he shall enter the names of the parties to any process handed to him for service, with the date on which he receives it and the date and place of service and the manner in which he has served it.
(2) In any case in which a process has not been duly served, the summons server shall enter the cause of non-service in the Process Book.
(3) The summons server shall endorse upon the original of each process he has served the date, place and manner of service, and sign the endorsement.
(4) The summons server shall lodge his Process Book with the clerk of petty sessions and, except where the court allows proof of the service of a process by affidavit in accordance with Article 126 of the Order or where a resident magistrate otherwise directs, shall attend at each sitting of a court of summary jurisdiction for the hearing of processes served by him and produce his Process Book or give evidence as to service, as may be directed by the court.
(5) In the case of the death, illness, or unavoidable absence of a summons server from a sitting of a court at which he would otherwise be required to attend, his Process Book, if produced to the court and verified on oath as to his handwriting by some credible person, shall be prima facie evidence of any matter entered therein.
63. In any case where a process is served by a person other than a summons server, except as provided by Rule 60(1)(b), that person shall endorse upon the original the date, place and manner of service and affix his signature thereto, and shall also, unless proof of service is given by affidavit in accordance with Article 126 of the Order, attend the sitting of the court at which the process is to be heard, and give such evidence as to the date, place and manner of service as the court may require.
64. A resident magistrate may in any case declare the service of a process however effected sufficient.
65.—(1) The clerk of petty sessions shall keep a register (to be called the Process Register) in which he shall make the entries relating to each proceeding as specified by the headings to the columns in the register.
(2) Separate Process Registers shall be kept for debt and ejectment proceedings and are referred to in these Rules as “the Debt Process Register” or “the Ejectment Process Register”, respectively.
(3) The Process Register shall be signed at the foot of each page by the resident magistrate who had adjudicated upon the proceedings entered thereon, but in case any page contains records of proceedings heard on more than one date or by more than one resident magistrate, it shall be signed by the appropriate resident magistrate at the last entry on each date, or at the last entry of any proceedings heard by him.
(4) Any person who satisfies a resident magistrate or a clerk of petty sessions that he has a bona fide interest in the matter may obtain from the clerk of petty sessions, upon payment of the prescribed fee, a memorandum of a proceeding entered in the Process Register.
66.—(1) When it is desired to enter or re-enter a process for hearing, the plaintiff or his solicitor shall lodge the original with the clerk of petty sessions on or before the entry day and details of such process shall be entered into the Process Register and where the hearing is adjourned or after the court has made an order in favour of the plaintiff the process shall be returned to the plaintiff or his solicitor.
(2) For the purposes of Rule 57 and of this Rule the entry day shall be the fourth day before the hearing; but when such day is a Saturday, Sunday or a public holiday, the entry shall be made on the previous week-day other than Saturday.
67.—(1) Where the hearing of a debt or ejectment proceeding is adjourned the court shall not continue with the proceeding until the process is re-entered in accordance with Rule 66.
(2) Where the court in the absence of the defendant or his solicitor adjourns the proceedings, the plaintiff or his solicitor shall notify the defendant or his solicitor of the fact that the process has been re-entered and of the time and place of the adjourned hearing.
68. The entry of the words “Struck Out” in the Process Register shall be a sufficient record of the striking out of a proceeding under Article 73(3) of the Order.
69. Where the court acting under Article 73(4) of the Order allows a proceeding to be withdrawn the word “Withdrawn” shall be entered in the appropriate column of the Process Register.
70.—(1) In a proceeding in which a defendant appears and admits that the amount stated in the process is due by him, or agrees to surrender possession of the premises sought to be recovered by the plaintiff and to pay any rent or arrears of rent which may be due to the plaintiff, the court may without hearing evidence make an order against him for the amount or for recovery of possession with costs and in doing so may postpone the issue of the decree in accordance with Article 116 of the Order for such period and upon such terms as it thinks fit.
(2) Where the plaintiff does not appear before the court in person an order shall be made under this Rule only where the plaintiff's solicitor or counsel is present and applies for it to be made.
71. If a defendant in the presence of a solicitor or his apprentice or clerk has signed a document consenting to an order, other than a committal order, being made against him, the court may make such order with costs upon such proof of the defendant's signature to the consent as the court may require.
72. For the purposes of these Rules a claim in debt or ejectment proceedings shall be treated as undefended where—
(a)the defendant fails to appear and the court, after proof of service of the process, makes an order against him; or
(b)where an order is made on the consent of the defendant; or
(c)the court so directs.
73.—(1) In a proceeding in which two or more persons are named as defendants in a process, the court may make an order for payment of the amount claimed or for the recovery of possession of premises sought to be recovered against one or more of these persons, and strike out, dismiss, or allow to be withdrawn the proceeding against the remainder.
(2) Where a proceeding is dismissed under this Rule, the court may order that any costs awarded on the dismiss, and which the plaintiff is liable to pay, shall be recovered by way of recoupment by the plaintiff from the defendant or defendants against whom an order is made, in addition to the plaintiff's costs of the order.
74. Where the court dismisses a claim upon the merits or without prejudice to a further claim in the same matter, the court shall so state by its formal order and the entry of the words “Dismissed on the Merits” or, as the case may be, “Dismissed Without Prejudice” in the appropriate Process Register shall be a sufficient record of the order.
75. Where in a proceeding a defendant produces a dismiss without prejudice obtained by him against the plaintiff for the same cause of action, the plaintiff shall not be at liberty to proceed until he has paid to, or satisfied the defendant for the amount for costs shown in such dismiss.
76.—(1) Where a process which has been duly served has not been entered or re-entered for hearing by the plaintiff or his solicitor, the defendant or his solicitor may, on the day of the hearing, lodge in court the copy served on the defendant and apply to have it entered or re-entered as the case may be.
(2) Upon such an application the court may order the process to be entered or re-entered and dismiss the claim without prejudice to a further claim in the same matter, with costs.
77.—(1) The party who brings the proceedings, or his solicitor, shall be responsible for the preparation of the process and all copies required for service.
(2) The party in whose favour an order is made in a proceeding, or his solicitor, shall be responsible for the preparation of the formal order to be issued by the court.
(3) The proper officer for the purposes of Article 116(3) of the Judgments Enforcement (Northern Ireland) Order 1981 shall be the clerk of petty sessions and, when an attachment of earnings order under Article 99 or an enforcement order or a committal order under Article 107 of that Order is lodged with the clerk, a duplicate of the formal order shall be attached thereto which, when signed in accordance with Rule 79(1), shall be transmitted to the Enforcement of Judgments Office in accordance with the said Article 116(3).
78.—(1) A plaintiff in whose favour an order has been made shall lodge the original process with the clerk of petty sessions when the form of the formal order is handed to the clerk who shall return the process to the plaintiff or his solicitor together with the formal order.
(2) Where a process has been entered or re-entered by the plaintiff for hearing and upon the hearing the court orders a dismiss, the defendant or his solicitor shall lodge the copy of the process served on him with the clerk of petty sessions when the form of the formal order is handed to the clerk who shall return it to the defendant or his solicitor together with the formal order.
(3) A copy process entered or re-entered by the defendant or his solicitor in accordance with Rule 76 and in respect of which a dismiss without prejudice with costs has been obtained, may be returned to the defendant or his solicitor for the purpose of preparing the formal order and shall otherwise be dealt with as an original process under paragraph (1).
79.—(1) A formal order issued by the court shall be signed by the resident magistrate who made the order or by some other resident magistrate or by the clerk of petty sessions.
(2) A formal order shall be deemed to be issued on the earliest day it may lawfully be issued whether or not in fact it is actually issued on that day and such day shall be entered on the formal order as the date of issue.
80. Where the court orders proceedings to be transferred to the county court under Article 75 of the Order it shall cause the clerk of petty sessions to transmit forthwith the original process and any notice of set-off or counterclaim or other document lodged in court in relation to the matter, together with a statement of the reasons for the transfer, to the county court, and, at the same time, to send all parties to the proceeding notice in writing of the transfer.
81. The court may, upon such terms as it thinks fit, enlarge or abridge any of the times fixed by these Rules for taking any step or doing an act in debt or ejectment proceedings, or declare any step taken or act done to be sufficient even though not taken or done within the time or manner prescribed by the Rules.
82.—(1) Non-compliance with any of the Rules in this Part shall not render any proceeding void, but, in case of such non-compliance, the court may direct that the proceeding be treated as void, or that it may be set aside in part as irregular, or that it be amended or otherwise dealt with in such manner or upon such terms as the court thinks fit.
(2) The clerk of petty sessions shall make a note of any ruling under paragraph (1) in the appropriate Process Register.
(3) When the court directs that the proceeding be treated as void, it shall have power to award, if it thinks fit, such costs as it could have awarded if it had dismissed the proceeding.
83. In a proceeding in which a claim for rent or sums due under Article 69 of the Order is joined to a claim for the recovery of premises in accordance with Article 72(3) of the Order so much of Rules 85 to 90 as is applicable shall have effect in relation to the proceeding.
84.—(1) A process issued in debt proceedings shall set forth the full name and address of the plaintiff and of the defendant, the nature and amount of the claim and reasonable particulars thereof.
(2) Where an amount is abandoned under Article 64 of the Order in order to bring the sum claimed within the jurisdiction of a court of summary jurisdiction, there shall be inserted in the process a statement of the fact of such abandonment after the particulars of claim.
(3) Two or more causes of action may be joined in the same process, provided that the amount claimed in respect of each such cause be stated in the particulars of claim and, except in cases to which Article 62(2) of the Order applies; the total amount does not exceed £100.
(4) In a proceeding brought for a sum exceeding £100 the process shall state the enactment declaring such sum to be a debt or civil debt recoverable summarily.
(5) In a proceeding on a bill of exchange, promissory note, or other security for money, the process shall state the date of such security, the sum for which it was given, the parties thereto, the sums claimed to be due thereon for principal and interest respectively, and the times at which such sums respectively became due and payable.
(6) In a proceeding for rent, or for use and occupation, the process shall state the amount claimed, the time up to which the amount is alleged to be due and the situation of the lands or premises in respect of which the claim is made, and when brought upon a lease or other instrument, the date thereof and the parties thereto respectively.
(7) In a proceeding brought by an assignee of a debt, the process shall state the name and the description of the assignor, and the nature and date of the assignment.
(8) In a proceeding brought upon any written document not mentioned before in this Rule, the process shall state the date and nature of the document, and the parties thereto.
85.—(1) Where a defendant desires to set-off any sum, or to make any counterclaim, he shall give to the plaintiff notice in writing specifying the amount of the set-off or counterclaim and giving reasonable particulars thereof at least six days before the hearing, and shall also at least two days before the hearing lodge a copy of such notice with the clerk of petty sessions.
(2) Where an amount is abandoned under Article 64 of the Order in order to bring the sum specified in the notice of set-off or counterclaim within the jurisdiction of a court of summary jurisdiction there shall be inserted in the said notice a statement of the fact of such abandonment after the particulars of the set-off or counterclaim.
86.—(1) A defendant who desires to be supplied with further or detailed particulars of a claim made against him in a process or a plaintiff who desires similar particulars of a set-off or counterclaim may give written notice demanding such particulars.
(2) A notice under this Rule shall be given at least four days before the date of hearing.
(3) Where particulars have not been furnished in compliance with this Rule the court may either proceed with the hearing or may, upon such terms as it thinks fit, adjourn the case and order such particulars to be delivered.
87.—(1) Where a defendant has paid the amount claimed in a process before the date of hearing, but has not paid the appropriate costs up till the date of payment, the court may make an order for the payment of the amount in the process with the costs, and direct that credit be given to the defendant for the amount paid.
(2) Where a claim in debt proceedings is not defended, evidence by the solicitor for the plaintiff that the full amount claimed has been received from the defendant after the issue of the process may be accepted as evidence that the amount claimed was due from the defendant at the time the process was issued.
88. Where a defendant, subsequent to the issue of a process but before the hearing, makes any payment on account of the amount claimed which would have the effect of reducing it to an amount which would carry a smaller sum for costs than the amount claimed, the court may, upon proof of the date of such payment, make an order for the payment of the amount proved to be due at the issue of the process, with the appropriate costs, and direct that credit be given to the defendant for any sum paid.
89. Where a dismiss is given by reason of the defendant establishing a set-off or counterclaim, that reason shall be stated on the dismiss.
90.—(1) Where the defence is a tender before action brought, such defence shall not be available unless the defendant lodges with the clerk of petty sessions, at least two days before the hearing, the amount alleged to have been tendered and serves notice of such lodgment on the plaintiff.
(2) At the time of the making of an order in a proceeding where the amount of the tender has been lodged with the clerk, the court shall in addition order that the amount lodged be paid out to the parties upon such conditions and in such manner as it may think fit.
91. Where the court has postponed the issue of a decree subject to terms imposed under Article 116 of the Order, whether as to payment of sums periodically or otherwise, the decree shall not issue until there has been default in compliance with such terms (which includes in relation to such payment, default in payment of an instalment) and an affidavit or statutory declaration setting out particulars of the default has been lodged with the clerk of petty sessions.
92.—(1) Costs of the amount set forth in the appropriate scale in Schedule 2 shall be recovered by a successful party in debt proceedings who has been represented by a solicitor or by a solicitor who is a successful party.
(2) An amount corresponding to the fixed value of stamps upon documents issued on behalf of a successful party in debt proceedings, together with any witnesses' expenses and any fixed fee paid by him to a summons server or other person for the service of a process shall be added to the costs awarded to him under paragraph (i) and shall form part of his costs in the proceedings.
(3) The court shall award by way of costs to a successful party who has not been represented by a solicitor, in addition to any witnesses' expenses, any fee paid or to be paid by him, but no other costs.
(4) Subject to paragraph (6) in addition to the costs, fees and expenses referred to in this Rule, a successful party may recover a sum equivalent to the value added tax at the appropriate rate on so much of the amount of those costs, fees and expenses as were incurred in respect of any taxable supply of goods or services within the meaning of the Value Added Tax Act 1983(3); but only in so far as the tax is not deductible as input tax by the successful party.
(5) Subject to paragraph (6), in a decree there shall be added after the words "witnesses' expenses“the words ”and, in addition, any sum for value added tax recoverable by the plaintiff [or (in the case of a dismiss) defendant]".
(6) Paragraph (5) shall not apply to a decree in undefended proceedings within the meaning of Rule 72 or where value added tax is not recoverable by the successful party under paragraph (4).
(7) In this Rule “fixed” means fixed by an order made under section 116 of the Judicature (Northern Ireland) Act 1978.
93. The amount awarded by a decree (including any interest and costs thereby awarded) or the amount of costs ordered to be paid by a dismiss shall, subject to any direction by the court, carry interest at seven per cent per annum.
94.—(1) Postponement of the issue of a decree subject to payment by instalments shall be treated as a stay of enforcement on the ground of the debtor's inability to pay for the purposes of Article 116(3) of the Judgments Enforcement (Northern Ireland) Order 1981.
(2) Where the court makes such an order the clerk of petty sessions shall enter the order in the Debt Process Register in the column headed “Minute of Adjudication” and shall transmit a memorandum thereof to the Enforcement of Judgments Office.
95.—(1) Every process issued in ejectment proceedings shall set forth the statement identifying the premises possession of which is sought to be recovered in the proceedings and the grounds on which possession is claimed.
(2) In a case to which sub-paragraph (a) of Article 67(1) of the Order applies the period and rent for which the premises were let, the date on which the interest of the tenant in the premises ended or, as the case may be, the date on which the notice to quit which determined the tenancy expired and the date on which such notice was served shall be stated in the process.
(3) In a case to which sub-paragraph (b) of Article 67(1) of the Order applies the capacity in which the defendant was put into possession and the date on which the demand for possession was made shall be stated in the process.
(4) In a case to which sub-paragraph (c) of Article 67(1) of the Order applies the process shall refer to the enactment under the provisions of which possession of the premises is obtainable or recoverable summarily and, if relevant, contain the particulars specified in paragraph (2).
(5) Where a claim for the recovery of rent or for any sum for which the defendant is liable under Article 69 of the Order in respect of the period during which he has overheld the premises is joined in the same process as a claim for recovery of possession of those premises the provisions of paragraph (6) of Rule 84 shall apply to such process.
96.—(1) Costs of the amount set forth in the appropriate scale in Schedule 3 shall be recovered by a successful party in ejectment proceedings who has been represented by a solicitor or by a solicitor who is a successful party.
(2) An amount corresponding to the fixed value of stamps upon documents issued on behalf of a successful party in ejectment proceedings, together with any witnesses' expenses and any fixed fee paid by him to a summons server or other person for the service of a process shall be added to the costs awarded to him under paragraph (1) and shall form part of his costs in the proceedings.
(3) The court shall award by way of costs to a successful party who has not been represented by a solicitor, in addition to any witnesses' expenses, any fees paid or to be paid by him, but no other costs.
(4) Paragraphs (4) to (6) of Rule 92 apply to ejectment proceedings as they apply to debt proceedings.
(5) In this Rule “fixed” means fixed by an order made under section 116 of the Judicature (Northern Ireland) Act 1978.