Part 21 – Representative Parties

Representative claimants and defendants – general

21.1

1. This rule applies to any proceedings, other than proceedings falling within rule 21.4, in which 5 or more persons have the same or a similar interest.
2. The court may appoint –
   1. a body having a sufficient interest in the proceedings; or
   2. one or more of those persons; to represent all or some of the persons with the same or similar interest.
3. A representative under this rule may be either a claimant or a defendant.

Appointment of representative claimant or defendant – procedure

21.2

1. An application for an order appointing a representative party may be made at any time, including a time before proceedings have been started.
2. An application for such an order may be made by any –
   1. party;
   2. person or body who wishes to be appointed as a representative party; or
   3. person who is likely to be a party to proceedings.
3. An application for such an order must –
   1. be supported by affidavit evidence; and
   2. identify every person to be represented, either
      1. individually; or
      2. by description, if it is not practicable to identify a person individually.
4. An application to appoint a representative defendant must be on notice to the claimant.
5. An application to appoint a representative claimant may be made without notice.
6. The court may direct that notice of an application be given to such other persons as it thinks fit.
7. If the court directs that a person not already a party is to be a representative defendant, it must make an order adding that person as a defendant.

Consequence of order appointing representative party

21.3

1. If there is a representative claimant or defendant, an order of the court binds everyone whom that party represents.
2. It may not however be enforced against a person not a party to the proceedings unless the person wishing to enforce it obtains permission from the court.
3. An application for permission must be supported by evidence on affidavit and must be served on the person against whom it is wished to enforce the judgment.

Representation of persons who cannot be ascertained, etc. in proceedings about estates, trusts and construction of written instruments

21.4

1. This rule applies only to proceedings about –
   1. the construction of a written instrument;
   2. the estate of someone who is deceased; or
   3. property subject to a trust.
2. The court may appoint one or more persons to represent any person or class of persons (including an unborn person or persons) who is or may be interested in or affected by the proceedings (whether presently or for any future, contingent or unascertained interest) where –
   1. the person, or the class or some member of it, cannot be ascer­tained or cannot readily be ascertained;
   2. the person, or the class or some member of it, though ascertained cannot be found; or
   3. it is expedient to do so for any other reason.
3. An application for an order to appoint a representative party under this rule may be made by any –
   1. party; or
   2. person who wishes to be appointed as a representative party.
4. A representative appointed under this rule may be either a claimant or a defendant.
5. A decision of the court binds everyone whom a representative claimant or representative defendant represents.

Compromise in proceedings to which rule 21.4 applies

21.5

1. If –
   1. a compromise is proposed in proceedings to which rule 21.4 applies;
   2. some of the persons who are interested in, or who may be affected by the compromise are not parties to the proceedings;
   3. those persons are represented by a representative appointed un­der rule 21.4 when the court considers the proposed compromise; and
   4. the court is satisfied that the compromise will be for the benefit of the absent persons; the court may approve the compromise.
2. The persons for whose benefit the court may approve a compromise may be unborn or unascertained.
3. The court’s order approving the compromise binds the absent persons unless it has been obtained by fraud or non-disclosure of material facts.

Representation of beneficiaries by trustees

21.6

1. A claim may be made by or against a person in that person’s capacity as a trustee, executor or administrator.
2. If a claim is so made, there is no need for a beneficiary also to be a party.
3. The court may direct that notice of the proceedings be given to any beneficiary.
4. A decision of the court in such proceedings binds a beneficiary unless the court otherwise orders.
5. The only grounds for an order that a decision is not binding on a beneficiary is that the trustee, executor or administrator –
   1. could not or did not in fact, represent the interest of the benefici­ary; or
   2. has acted fraudulently.

Proceedings against estate of deceased person

21.7

1. If in any proceedings it appears that a deceased person was interested in the proceedings but the deceased person has no personal repre­sentatives, the court may make an order appointing someone to represent the deceased person’s estate for the purpose of the proceedings
2. A person may be appointed as a representative if that person –
   1. can fairly and competently conduct proceedings on behalf of the estate; and
   2. has no interest adverse to that of the estate; of the deceased
3. The court may make such an order on or without an application.
4. Until the court has appointed someone to represent the deceased person’s estate, the claimant may take no step in the proceedings apart from applying for an order to have a representative appointed under this rule.
5. A decision in proceedings in which the court has appointed a repre­sentative under this rule binds the estate to the same extent as if the person appointed were an executor or administrator of the deceased person’s estate.

Power of court to give directions to enable proceedings to be carried on after party’s death

21.8

1. If a party to proceedings dies, the court may give directions to enable the proceedings to be carried on.
2. An order under this rule may be made on or without an application.

Power of court to strike out claim after death of claimant

21.9

1. If a claimant dies and the claimant’s personal representatives do not apply for an order under rule 19.3 to be substituted as claimants, the defendant may apply for the claim to be struck out.
2. Notice of the application must be given to the personal representatives of the claimant (if any) and such other persons as the court directs.
3. The general rule is that if the court makes an order on an application under this rule it will be that unless the personal representatives or some other persons on behalf of the estate apply to be substituted under rule 19.3 or for directions under rule 21.8 by a specified date, the claim is to be struck out.
4. The court may give directions under rule 21.8 at the hearing of an application under this rule.