[O. 77, rr. 1-3

ORDER 77

DISABILITY

1. In this Order:-

2. (1) A person under disability may not bring, or make a claim in, any proceedings except by his next friend, and may not defend, make a counterclaim or intervene in any proceedings or appear in any proceedings under a judgment or order, notice of which has been served on him, except by his guardian ad litem.

(2) Subject to the provisions of these Rules, anything which in the ordinary conduct of the proceedings is required or authorised to be done by a party to the proceedings shall, or may, if the party is a person under disability, be done by his next friend or guardian ad litem.

A next friend or guardian ad litem of a person under disability must act by a solicitor.

3. (1) Except as provided by paragraph (3) or (4), or by rule 4, an order appointing a person next friend or guardian ad litem of a person under disability is not necessary.

(2) Where a person is authorised under Part VII of the Act to conduct legal proceedings in the name of a patient or on his behalf, that person shall be entitled to be next friend or guardian ad litem, as the case may be, of the patient in any proceedings to which his authority extends unless, in a case to which paragraph (3) or (4) or rule 4 applies, some other person is appointed by the Court under that paragraph or rule to be next friend or guardian ad litem, as the case may be, of the patient in those proceedings.

(3) Where a person has been or is next friend or guardian ad litem of a person under disability in any proceedings, no other person shall be entitled to act as such friend or guardian, as the case may be, of the person under disability in those proceedings, unless the Court makes an order appointing him such friend or guardian in substitution for the person previously acting in that capacity.

(4) Where, after any proceedings have been begun, a party to the proceedings becomes a patient, an application must be made to the Court for the appointment of a person to be next friend or guardian ad litem, as the case may be, of that party.

(5) Except where the next friend or guardian ad litem as the case may be, of a person under disability has been appointed by the Court:-

unless and until the documents listed in paragraph (6) have been filed in the appropriate Registry.

(6) The documents referred to in paragraph (5) are the following:-

Appointment of Guardian where Person under disability does not appear

4. (1) Where-

an application for the appointment by the Court of a guardian ad litem of that person must be made by the plaintiff or defendant, as the case may be, after the time limited (as respects that person) for appearing and before proceeding further with the action or counterclaim.

(2) Where a party to an action has served on a person under disability who is not already a party a third party notice within the meaning of Order 16 and no appearance is entered for that person to the notice, an application for the appointment by the Court of a guardian ad litem of that person must be made by that party to the action after the time limited (as respects that person) for appearing and before proceeding after with the third party proceedings.

(3) Where in any proceedings against a person under disability begun by petition or motion, or by originating summons to which no appearance need be entered, that person does not appear by a guardian ad litem at the hearing of the petition, motion, or summons, as the case may be, the Court hearing it may appoint a guardian ad litem of that person in the proceedings or direct that an application be made by the petitioner or applicant, as the case may be, for the appointment of such a guardian.

(4) At any stage in the proceedings under any judgment or order, notice of which has been served on a person under disability, the Court may, if no appearance is entered for that person, appoint a guardian ad litem of that person in the proceedings or direct that an application be made for the appointment of such a guardian.

(5) An application under paragraph (1) or (2) must be supported by evidence proving-

(6) If the Court so directs, notice of an application under paragraph (1) or (2) need not be served a person under disability.

(7) An application for the appointment of a guardian ad litem made in compliance with a direction of the Court given under paragraph (3) or (4) must be supported by evidence proving the matters referred to in paragraph (5)(b).

6. Notwithstanding anything in Order 18, rule 13(1), a person under disability shall not be taken to admit the truth of any allegation of fact made in the pleading of the opposite party by reason only that he has not traversed it in his pleadings.

7. Order 24 and 26 shall apply to a person under disability and to his next friend or guardian ad litem.

8. Where in any proceedings money is claimed by or on behalf of a person under disability, no settlement, compromise or payment and no acceptance of money paid into court, whenever entered into or made, shall so far as it relates to that person’s claim be valid without the approval of the Court.

9. (1) Where, before proceedings in which a claim for money is made by or on behalf of a person under disability (whether alone or in conjunction with any other person) are begun, an agreement is reached for the settlement of the claim, and it is desired to obtain the Court’s approval to the settlement, then, notwithstanding anything in Order 5, rule 2, the claim may be made in proceedings begun by originating summons and in the summons an application may also be made for-

(2) Where in proceedings under this rule a claim is made in respect of a death under the Compensation for Injuries Ordinance Ch. 5 No. 5, the originating summons must particularise in full the

[O. 77, rr. 9-11

persons for whom and on whose behalf such action is brought and the nature of the claim in respect of which damages are sought to be recovered.

(3) No appearance need be entered to an originating summons under this rule.

(4) In this rule "settlement" includes a compromise.

10. (1) Where in any proceedings-

the money shall subject to order 22, rule 12, be dealt with in accordance with directions given by the Court under this rule, and not otherwise.

(2) Directions given under this rule may provide that the money shall, as to the whole or any part thereof, be paid into the High Court and invested or otherwise dealt with there.

(3) Without prejudice to the foregoing provisions of this rule, directions given under this rule may include any general or special directions that the Court thinks fit to give and, in particular, directions as to how the money is to be applied or dealt with as to any payment to be made, either directly or out of the amount paid into court to the plaintiff, or to the next friend in respect of moneys paid or expenses incurred for or on behalf or for the benefit of the person under disability or for his maintenance or otherwise for his benefit or to the plaintiff’s solicitor in respect of costs.

(4) Where in pursuance of directions given under this rule money is paid into the High Court to be invested or otherwise dealt with there, the money (including any interest thereon) shall not be paid out, nor shall any securities in which the money is invested, or the dividends thereon, be sold, transferred or paid out of court, except in accordance with an order of the Court.

(5) The foregoing provisions of this rule shall apply in relation to a counterclaim by or on behalf of a person under disability, and a claim made by or on behalf of such a person in an action by any other person for relief under section 504 of the Merchant Shipping Act, 1894, as if for references to a plaintiff and a next friend there were substituted references to a defendant and to a guardian ad litem respectively.

11. (1) Where a single sum of money is paid into court under Order 22, rule 1, in satisfaction of causes of action arising under the Compensation for Injuries Ordinance Ch. 5 No. 5 and section 28 of the Act, and that sum is accepted, the money shall be apportioned between the different causes of action by the Court either when giving directions for dealing with it under rule 10 (if that rule applies) or when authorising its payment out of court.

(2) Where, in an action in which a claim under the Compensation for Injuries Ordinance Ch. 5 No. 5 is made by or on behalf of more than one person, a sum in respect of damages is adjudged or ordered or agreed to be paid in satisfaction of the claim, or a sum of money paid into court under Order 22, rule 1, is accepted in satisfaction of the cause of action under the said Ordinance, then it shall be apportioned between those person by the Court.

The reference in this paragraph to a sum of money paid into court shall be construed as including a reference to part of a sum so paid, being the part apportioned, by the Court under paragraph (1) to the cause of action under the said enactments.

12. (1) Where in any proceedings a document is required to be served personally on any person and that person is a person under disability this rule shall apply.

(2) Subject to the following provisions of this rule and to Order 24, rule 16(3), and Order 26, rule 6(3) the document must be served-

and must be served in the manner required by these Rules with respect to the document in question.

(3) Notwithstanding anything in paragraph (2), the Court may order that a document which has been, or is to be, served on the person under disability or on a person other than a person mentioned in that paragraph shall be deemed to be duly served on the person under disability.

(4) A judgment or order requiring a person to do, or refrain from doing, any act, a notice of motion or summons for the committal of any person, and a writ of subpoena against any person, must, if that person is a person under disability, be served personally on him unless the Court otherwise orders.

This paragraph shall not apply to an order for interrogatories or for discovery or inspection of documents.

(5) In this rule references to the Court shall be construed as including references to the Court of Appeal or a single Judge thereof.