ORDER 43

ACCOUNTS AND INQUIRIES

Summary order for account (O. 43, r. 1)
1. —(1) Where a writ is endorsed with a claim for an account or a claim which necessarily involves taking an account, the plaintiff may, at any time after the defendant has entered an appearance or after the time limited for appearing, apply for an order under this Rule.

(2) A defendant to an action begun by writ who has served a counterclaim, which includes a claim for an account or a claim which necessarily involves taking an account, on —

(a) the plaintiff;

(b) any other party; or

(c) any person who becomes a party by virtue of such service,

may apply for an order under this Rule.

(3) An application under this Rule must be made by summons and, if the Court so directs, must be supported by affidavit or other evidence.

(4) On the hearing of the application, the Court may, unless satisfied by the defendant by affidavit or otherwise that there is some preliminary question to be tried, order that an account be taken and may also order that any amount certified on taking the account to be due to either party be paid to him within a time specified in the order.

Court may direct taking of accounts, etc. (O. 43, r. 2)
2. —(1) The Court may, on an application made by summons at any stage of the proceedings in a cause or matter, direct any necessary accounts or inquiries to be taken or made in Form 80.

(2) Every direction for the taking of an account or the making of an inquiry shall be numbered in the judgment or order so that, as far as may be, each distinct account and inquiry may be designated by a number.

Directions as to manner of taking account (O. 43, r. 3)
3. —(1) Where the Court orders an account to be taken, it may by the same or a subsequent order give directions with regard to the manner in which the account is to be taken or vouched or the inquiry is to be made.

(2) Without prejudice to the generality of paragraph (1), the Court may direct that in taking the account the relevant books of account shall be evidence of the matters contained therein with liberty to the parties interested to take such objections thereto as they think fit.

(3) Where the Court orders an account to be taken and no provision is made in the order for the manner in which the account is to be taken, the party entitled to the account shall, within one month from the date of the order, apply to the Registrar for directions and the provisions of Order 25, Rule 3 shall, with the necessary modifications, apply.

(4) On the hearing of the application for directions under paragraph (3), the Registrar may, in addition to making such orders as are necessary and appropriate, give directions as to the time by which the account referred to in Rule 4, a notice referred to in Rule 5 or a notice of appointment for the taking of the account shall be filed.

(5) Notwithstanding Order 62, Rule 10, a notice of appointment for the taking of the account referred to in paragraph (4) shall, not later than 7 days after it has been filed, be served on the party making the account.

(6) If the party entitled to the account does not file the application for directions within the period referred to in paragraph (3), any other party may do so or apply for the Court to exercise its powers under Rule 7.

Account to be made, verified, etc. (O. 43, r. 4)
4. —(1) Where an account has been ordered to be taken, the accounting party must make out his account and, unless the Court otherwise directs, verify it by an affidavit to which the account must be exhibited.

(2) The items on each side of the account must be numbered consecutively.

(3) Unless the order for the taking of the account otherwise directs, the accounting party must file the account with the Registry and must at the same time notify the other parties that he has done so and of the filing of any affidavit verifying the account and of any supporting affidavit.

Notice to be given of alleged omissions, etc., in account (O. 43, r. 5)
5. Any party who seeks to charge an accounting party with an amount beyond that which he has by his account admitted to have received or who alleges that any item in his account is erroneous in respect of amount or in any other respect must give him notice thereof stating, so far as he is able, the amount sought to be charged, with brief particulars thereof or, as the case may be, the grounds for alleging that the item is erroneous.

Filing documents prior to the taking of accounts or making of inquiries (O. 43, r. 5A)
5A. —(1) The following documents shall be filed not less than 5 days before the taking of an account or making of an inquiry:

(a) the originals of the affidavits of the evidence-in-chief of all witnesses, including the affidavit verifying the accounts; and

(b) a bundle of all the documents that will be relied on or referred to in the course of the taking of the account or making of the inquiry by any party, including any documents that are exhibited to the affidavits of the evidence-in-chief of all witnesses.

(2) Each party shall file the affidavits of evidence-in-chief of that party’s witnesses.

(3) The contents of the bundle of documents referred to in paragraph (1) (b) shall be agreed on between the parties as far as possible, and this bundle of agreed documents shall be filed by the accounting party lodging the account pursuant to Rule 4 (3).

(4) If the parties are unable to agree on the inclusion of certain documents, those documents on which agreement cannot be reached shall be included in separate bundles, and each such bundle shall be filed by the party that intends to rely on or refer to the documents in that bundle at the same time as the bundle of documents referred to in paragraph (3).

(5) For the purposes of this Rule, all documents contained in bundles shall be arranged chronologically or in some logical order and shall be paginated.

(6) The contents and format of every bundle of documents filed pursuant to this Rule shall comply with the requirements laid down in any practice directions for the time being issued by the Registrar.

Allowances (O. 43, r. 6)
6. In taking any account directed by any judgment or order all just allowances shall be made without any direction to that effect.

Delay in prosecution of accounts, etc. (O. 43, r. 7)
7. —(1) If it appears to the Court that there is undue delay in the prosecution of any accounts or inquiries, or in any other proceedings under any judgment or order, the Court may require the party having the conduct of the proceedings or any other party to explain the delay and may then make such order for staying the proceedings or for expediting them or for the conduct thereof and for costs as the circumstances require.

(2) The Court may direct any party to take over the conduct of the proceedings in question, to carry out any directions made by an order under this Rule and to make such order as to costs as the Court deems fit.

Distribution of fund before all persons entitled are ascertained (O. 43, r. 8)
8. Where some of the persons entitled to share in a fund are ascertained, and difficulty or delay has occurred or is likely to occur in ascertaining the other persons so entitled, the Court may order or allow immediate payment of their shares to the persons ascertained without reserving any part of those shares to meet the subsequent costs of ascertaining those other persons.