Wednesday, July 11, 2007

Parties

It is necessary to determine whether the party suing (the plaintiff) or the party sued (the defendant) :

(a) is sui juris (of the age majority; and
(b) is in compos mentis (in his right mind); and
(c) is acting personally (ie pursuing his own claim) pr in s representative capacity.

If the plaintiff is an infant or a patient as defined in the Mental Disorders Ordinance 1952, he/she is considered to be under disability and can only sue by his/her next friend. If such a person is sued, he can only defend by his guardian ad litem.

If a party acts in a representative character, for example, as the legal personal representative in an administration action, that representative character must be clearly and precisely shown. Any person whether or not he sues as a trustee or personal representative or in any other representative capacity may act in person or by a solicitor. Two or more persons claiming to be partners in respect of a cause of action may sue or be sued in the name of the partnership firm.

If the plaintiff dies, the executor or the administrator of his estate will be the person to apply for the order to carry on with the proceedings. When one or two or more plaintiffs die, if he cause of action is a joint one, the surviving plaintiff or plaintiffs can continue the action without adding the personal representative of the deceased plaintiff. If the action is not a joint one, the personal representative of the deceased plaintiff may obtain an order to carry on with the proceedings.

In the case of the death of the defendant, if he is the sole defendant and the cause of action is one that survives, the plaintiff may apply for an order to continue the proceedings against the executor or administrator of the deceased defendant. Alternatively, the executor or administrator may apply to be substituted for the defendant. Until and unless such executor or administrator is added or substituted, the action cannot be continued.

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