ORDER 76
DISABILITY
1. In this Order, unless the context otherwise requires —
“Act” means the Mental Capacity Act (Cap. 177A);
“person lacking capacity” means a person who lacks capacity within the meaning of the Mental Capacity Act in relation to matters concerning his property and affairs;
“person under disability” means, subject to Order 1, Rule 4(3) —
(a)
a person who is a minor; or
(b)
a person lacking capacity.
[S 32/2010 wef 01/03/2010]
1A.
—(1) The jurisdiction of the Court to grant leave under section 25(2) of the Mental Health (Care and Treatment) Act 2008 (Act 21 of 2008) to bring proceedings against a person may be exercised only by a Judge in person.
[S 32/2010 wef 01/03/2010]
(2) The application must be supported by an affidavit setting out the grounds on which such leave is sought and any facts necessary to substantiate those grounds.
2.
—(1) A person under disability may not bring, make a claim in, defend, make a counterclaim in, 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 litigation representative3.
(2) Subject to these Rules, anything which in the ordinary conduct of any proceedings is required or authorised by a provision of these Rules to be done by a party to the proceedings shall or may, if the party is a person under disability, be done by his litigation representative3.
(3) A litigation representative3 of a person under disability must act by a solicitor.
3.
—(1) This Rule shall not apply in relation to a probate action.
(2) Except as provided by paragraph (4) or (5) or by Rule 6, an order appointing a person litigation representative3 of a person under disability is not necessary.
(3) Where a person is authorised under the Act to conduct legal proceedings in the name of a person lacking capacity or on his behalf, that person shall be entitled to be litigation representative3 of the person lacking capacity in any proceedings to which his authority extends unless, in a case to which paragraph (4) or (5) or Rule 6 applies, some other person is appointed by the Court under that paragraph or Rule to be litigation representative3 of the person lacking capacity in those proceedings.
[S 32/2010 wef 01/03/2010]
(4) Where a person has been or is litigation representative3 of a person under disability in any proceedings, no other person shall be entitled to act as such litigation representative3 of the person under disability in those proceedings unless the Court makes an order appointing him such litigation representive3 in substitution for the person previously acting in that capacity.
(5) Where, after any proceedings have been begun, a party to the proceedings becomes a person lacking capacity, an application must be made to the Court for the appointment of a person to be litigation representative3 of that party.
[S 32/2010 wef 01/03/2010]
(6) Except where the litigation representative3 of a person under disability has been appointed by the Court —
(a)
the name of any person shall not be used in a cause or matter as litigation representative3 of a person under disability;
(b)
an appearance shall not be entered in a cause or matter for a person under disability; and
(c)
a person under disability shall not be entitled to appear by his litigation representative3 on the hearing of a summons which has been served on him,
until the documents listed in paragraph (7) have been filed in the Registry.
(7) The documents referred to in paragraph (6) are the following:
(a)
a written consent in Form 202 to be litigation representative3 of the person under disability in the cause or matter in question given by the person proposing to be such litigation representative3;
(b)
where the person proposing to be such litigation representative3 of the person under disability, being a person lacking capacity, is authorised under the Act to conduct the proceedings in the cause or matter in question in the name of the person lacking capacity or on his behalf, a copy, sealed with the seal of the Court, of the order or other authorisation made or given under the Act by virtue of which he is so authorised; and
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(c)
except where the person proposing to be such litigation representative3 of the person under disability, being a person lacking capacity, is authorised as mentioned in sub-paragraph (b), a certificate in Form 203 made by the solicitor for the person under disability certifying —
(i)
that he knows or believes, as the case may be, that the person to whom the certificate relates is a minor or a person lacking capacity, giving (in the case of a person lacking capacity) the grounds of his knowledge or belief;
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(ii)
where the person under disability is a person lacking capacity, that there is no person authorised as aforesaid; and
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(iii)
that the person so named has no interest in the cause or matter in question adverse to that of the person under disability.
4.
—(1) This Rule applies in relation to a probate action to which a person under disability is a party or in which he intervenes or is cited under Order 72, Rule 5.
(2) Where the person under disability is a person lacking capacity and a person is authorised under the Act to conduct legal proceedings in the name of the person lacking capacity or on his behalf, the person so authorised shall be entitled to be litigation representative3 of the person lacking capacity in any probate action to which his authority extends, provided that he shall not be entitled by virtue of this paragraph to be litigation representative3 of a person lacking capacity in a probate action if some other person has been appointed by the Court under Rule 6 to be litigation representative3 of the person lacking capacity in that action.
[S 32/2010 wef 01/03/2010]
(3) Where the person under disability is a minor who is not a person lacking capacity and he has a statutory guardian or a testamentary guardian who is qualified to be his litigation representative3 by virtue of paragraph (8), that guardian shall be entitled to be litigation representative3 of the minor in a probate action.
[S 49/2009 wef 01/03/2009]
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(4) Where the person under disability is a minor who has attained the age of 16 years and is not a person lacking capacity, and there is no person qualified by virtue of paragraph (3) to be his litigation representative3, the minor may appoint as his litigation representative3 a person who is qualified to be such litigation representative3 by virtue of paragraph (8) and who is one of his next-of- kin or, where the minor is a married woman, one of her next-of-kin or her husband.
[S 49/2009 wef 01/03/2009]
[S 32/2010 wef 01/03/2010]
(5) Where a minor appoints a person under paragraph (4) to be his litigation representative3 in a probate action, the person so appointed may be litigation representative3 of any other minor in that action provided that the other minor is under 16 years of age, is not a person lacking capacity and his interest in the action is the same as that of the minor making the appointment.
[S 49/2009 wef 01/03/2009]
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(6) Where there is no person qualified by virtue of paragraph (2) or (3), as the case may be, to be litigation representative3 of a person under disability in a probate action and that person is either not entitled under paragraph (4) to appoint a person to be his litigation representative3 or, being so entitled, makes no appointment thereunder, the litigation representative3 of the person under disability in the action shall be such one of his next-of-kin or other person as the Court may appoint.
(7) An application under paragraph (6) for the appointment of a litigation representative3 of a person under disability may be made by ex parte summons and must be supported by an affidavit showing —
(a)
that there is no person entitled to be such litigation representative3 by virtue of paragraph (2) or (3), or appointed as such under paragraph (4), as the circumstances require;
(b)
if such be the case, that the person proposed as litigation representative3 is a next-of-kin of the person under disability; and
(c)
that the person proposed as litigation representative3 is willing and a proper person to act as such and has no interest in the action adverse to that of the person under disability.
(8) A person is qualified to be litigation representative3 of a person under disability if he is competent and willing to act as such and has no interest in the action in question adverse to that of the person under disability.
(9) [Deleted by S 806/2005]
5.
—(1) Where a party to a probate action is a person under disability, then, unless the litigation representative3 of that person has been appointed such litigation representative3 by the Court, the writ beginning the action (where that person is a plaintiff) shall not be issued, and an appearance shall not be entered for him in the action (where he is a defendant, intervener, or person cited under Order 72, Rule 5) without the consent of the Registrar.
(2) On the making of an application for a consent under paragraph (1) in relation to a minor who is not a person lacking capacity, there must be produced to the Registrar —
(a)
where the litigation representative3 of the minor is his statutory guardian or testamentary guardian, an affidavit deposing to the guardianship and age of the minor and showing that the guardian has no interest in the action adverse to that of the minor;
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(b)
where the litigation representative3 of the minor is a person appointed under Rule 4(4) —
(i)
the appointment;
(ii)
a written consent to act as litigation representative3 given by the person so appointed; and
(iii)
an affidavit deposing to the age of the minor and containing the evidence which would be required by Rule 4(7) to be contained in an affidavit in support of an application for the appointment of that person as litigation representative3 by the Court.
[S 49/2009 wef 01/03/2009]
(3) On the making of an application for consent under paragraph (1) in relation to a person lacking capacity, there must be produced to the Registrar a copy, sealed with the seal of the Court, of the order or other authorisation made or given under the Act by virtue of which the litigation representative3 of the person lacking capacity is authorised to conduct legal proceedings in the probate action in question in the name of the person lacking capacity or on his behalf.
[S 32/2010 wef 01/03/2010]
Appointment of litigation representative3 where person under disability does not appear (O. 76, r. 6)
6.
—(1) Where —
(a)
in an action against a person under disability begun by writ, or by originating summons, no appearance is entered in the writ action for that person; or
(b)
the defendant to an action serves a defence and counterclaim on a person under disability who is not already a party to the action, and no appearance is entered for that person,
an application for the appointment by the Court of a litigation representative3 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 to the action a third party notice within the meaning of Order 16 and no appearance is entered for that person to that notice, an application for the appointment by the Court of a litigation representative3 of that person must be made by that party after the time limited (as respects that person) for appearing and before proceeding further with the third party proceedings.
(3) Where in any proceedings against a person under disability begun by originating summons, that person does not appear by a litigation representative3, at the hearing of the summons, the Court hearing it may appoint a litigation representative3 of that person in the proceedings or direct that an application be made by the applicant, for the appointment of such a litigation representative3.
(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 in a writ action, or in any other case, appoint a litigation representative3 of that person in the proceedings or direct that an application be made for the appointment of such a litigation representative3.
(5) An application under paragraph (1) or (2) must be supported by evidence proving —
(a)
that the person to whom the application relates is a person under disability;
(b)
that the person proposed as litigation representative3 is willing and a proper person to act as such and has no interest in the proceedings adverse to that of the person under disability;
(c)
that the writ, originating summons, defence and counterclaim or third party notice, as the case may be, was duly served on the person under disability; and
(d)
subject to paragraph (6), that notice of the application was, after the expiration of the time limited for appearing and at least 7 days before the day fixed for hearing, so served on him.
(6) If the Court so directs, notice of an application under paragraph (1) or (2) need not be served on a person under disability.
(7) An application for the appointment of a litigation representative3 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).
7. An application to the Court on behalf of a person under disability served with an order made ex parte under Order 15, Rule 7, for the discharge or variation of the order must be made —
(a)
if a litigation representative3 is acting for that person in the cause or matter in which the order is made, within 14 days after the service of the order on that person;
(b)
if there is no litigation representative3 acting for that person in that cause or matter, within 14 days after the appointment of such a litigation representative3 to act for him.
8. 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.
9. Orders 24, 26 and 26A shall apply to a person under disability and to his litigation representative3.
10. 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.
11.
—(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 —
(a)
the approval of the Court to the settlement and such orders or directions as may be necessary to give effect to it or as may be necessary or expedient under Rule 12; or
(b)
alternatively, directions as to the further prosecution of the claim.
(2) Where in proceedings under this Rule a claim is made under section 20 of the Civil Law Act (Chapter 43), the originating summons must include the particulars required under the Act.
(3) [Deleted by S 806/2005]
(4) In this Rule, “settlement” includes a compromise.
12.
—(1) Where in any proceedings —
(a)
money is recovered by or on behalf of, or adjudged or ordered or agreed to be paid to, or for the benefit of, a person under disability; or
(b)
money paid into Court is accepted by or on behalf of a plaintiff who is a person under disability,
the money shall be dealt with in accordance with directions given by the Court.
(2) Directions given under this Rule may provide that the money shall, as to the whole or any part thereof, be paid into Court and invested or otherwise dealt with.
(3) Without prejudice to paragraphs (1) and (2), 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 and as to any payment to be made, either directly or out of the amount paid into Court, to the plaintiff, or to the litigation representative3 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 Court to be invested or otherwise dealt with, 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) Paragraphs (1) to (4) 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 Order 70, Rule 36, as if for references to a plaintiff there were substituted references to a defendant.
[S 637/2006 wef 01/01/2007]
13.
—(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 Civil Law Act (Chapter 43) 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 12 (if that Rule applies) or when authorising its payment out of Court.
(2) Where, in an action in which a claim under the Civil Law Act, 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 Civil Law Act, it shall be apportioned between those persons 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 Civil Law Act.
14.
—(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 this Rule and to Order 24, Rule 16(3), and Order 26, Rule 6(3), the document must be served —
(a)
in the case of a minor who is not also a person lacking capacity, on his father or guardian or, if he has no father or guardian, on the person with whom he resides or in whose care he is;
[S 49/2009 wef 01/03/2009]
[S 32/2010 wef 01/03/2010]
(b)
in the case of a person lacking capacity, on the person (if any) who is authorised under the Act to conduct in the name of the person lacking capacity or on his behalf the proceedings in connection with which the document is to be served or, if there is no person so authorised, on the person with whom he resides or in whose care he is,
and must be served in the manner required by these Rules with respect to the document in question.
[S 32/2010 wef 01/03/2010]
(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 summons for the committal of any person, and a 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.