Supreme Court dismisses appeal where High Court correctly struck out default judgment motion after defense was delivered.

THE SUPREME COURT

[Record No: 77/2010]

MacMenamin J.

O’Malley J.

Finlay Geoghegan J.

Between/

Kevin Tracey and Karen Tracey

Plaintiffs/Appellants

and

Ireland, The Attorney General, Minister for Justice, Equality and Law Reform, The Commissioner of an Garda Síochána, The

Garda Complaints Board, Anthony Duggan, Malachy Mulligan, Martin Griffin, Liam Mulgrew, Declan Murray, Edward

Finucane, Deirdre Ryan, Feidhlim McKenna, Paul Fanning, Kevin Grogan, The Director of Public Prosecutions, Clare Loftus,

Ronan O’Neill, Declan Keating, The Courts Service, Frieda McElhinney, Cormac Dunne, Yvonne Bambury, Mary McKeon,

Olive Boyle and Brigid O’Dowda

Defendants/Appellants

Judgment of Ms. Justice Finlay Geoghegan delivered on the 7th day of February, 2018.

1. This appeal is from an order of the High Court (Lavan J.) of the 22nd February, 2010 made on a notice of motion issued by the

plaintiffs for judgment in default of defence against the defendants on the 14th December, 2009. The order made was that the motion

be struck out and the defendants pay to the plaintiffs the costs of the motion.

2. The plaintiffs appealed the order by notice of appeal dated the 20th March, 2010 and the matter appears to have lain dormant for

a number of years until recently re-activated at the instigation of the Court.

3. The motion for judgment in default of defence heard and determined by Lavan J. on the 22nd February, 2010 was the second

motion for judgment in default of defence issued by the plaintiffs in these proceedings. In those circumstances the plaintiffs contend

that the High Court judge was in error in striking out the motion as they submit that he was bound by the terms of O.27, r.8(1) of the

Rules of the Superior Courts then applicable to grant judgment in favour of the plaintiffs against the defendants.

4. The first to 23rd named defendants and the 25th named defendant (“the State Defendants”) were at the time of the making of the

High Court order and of the hearing of the appeal represented by the Chief State Solicitor. They appear to have been the only

defendants served with, and participating in, the motion. Counsel on their behalf submits that as the defence was delivered in

advance of the hearing of the plaintiffs’ motion on the 22nd February 2010, the trial judge did not have jurisdiction to grant judgment

in default of defence pursuant to O.27, rules 8 and 9 of the Superior Courts Rules, and correctly struck out the motion and awarded

the costs thereof to the plaintiffs.

Factual and Procedural Background

5. The plaintiffs issued the plenary summons in person on the 5th March, 2008 against 26 defendants arising out of alleged wrongs

connected with a District Court hearing in May 2006. The proceedings were served on the Chief State Solicitor’s office in February,

2009. Three statements of claim dated 28th April, 2009, 13th May, 2009 and 26th November, 2009 were delivered against all 24 State

defendants. The plaintiffs, on the 10th June, 2009, issued a 21 day warning letter pursuant to O.27 r. 9 of the Rules in relation to a

proposed application for judgment in default of defence. Not having received a defence within the 21 days, on the 2nd July 2009,

they issued a motion seeking judgment in default of defence returnable for the 2nd November, 2009.

6. On the 2nd November 2009, the High Court (Lavan J.) made an order by consent that the defendants have “four weeks from the

date hereof for delivery of a Defence (or such further time as may be agreed upon by the plaintiff in writing) and pay the plaintiffs’

costs”. No defence was delivered within the four week period.

7. On the 14th December, 2009 the plaintiffs, without serving a 21 day warning letter, issued a second motion seeking judgment in

default of defence against the State defendants which was returnable for the 22nd February, 2010. That motion was not served on

the State defendants until 8th February 2010.

8. Meanwhile, prior to the service of the said notice of motion, the defence of all the 24 State defendants was delivered to the

plaintiffs on the 18th January, 2010.

9. There was no dispute in the appeal in relation to the above procedural steps taken by each party. The dispute relates to the

proper interpretation of O.27, r.8 of the Rules of the Superior Courts. This must be considered in the context of rule 9. Rules 8 and 9

of O.27 were inserted by Rules of the Superior Courts (Order 27 (Amendment) Rules), 2004 (S.I. No. 63 of 2004) and provide:

“8. (1) In all other actions than those in the preceding rules of this Order mentioned, if a defendant being bound to

deliver a defence, does not do so within the time allowed, the plaintiff may, subject to the provisions of rule 9, set down

the action on motion for judgment; and on the hearing of the first such application the Court may give to the plaintiff

such judgment as upon the statement of claim it considers the plaintiff to be entitled to, or may make such other order

on such terms as the Court shall think just; and on the hearing of any subsequent application, the Court shall give to the

plaintiff such judgment as upon the statement of claim it considers the plaintiff to be entitled to, unless the court is

satisfied that special circumstances (to be recited in the order) exist which explain and justify the failure and, where it is

so satisfied, the Court shall make an order—

(a) extending the time for delivery of a defence;

(b) adjourning the motion for such period as is necessary to enable a defence to be delivered within the extended

time,

(i) if a defence has been delivered within the extended time, the Court shall allow the plaintiff the costs

of and in relation to the motion at such sum as it may measure in respect thereof,

(ii) if a defence has not been delivered within the extended time the Court shall give to the plaintiff

such judgment as upon the statement of claim it considers the plaintiff to be entitled to.

(2) In the event of the Court giving judgment to the plaintiff as aforesaid, any damages to which the plaintiff may

be entitled shall be ascertained by the Judge with a jury, in case any party requires and is entitled to one, but

otherwise without a jury, and, if without a jury, either by the Judge or by the Master or by the Examiner, as the

Judge may direct, on evidence by affidavit or otherwise.

9. (1) No notice of motion for judgment in default of defence in actions claiming unliquidated damages in tort or contract

may be served, unless the plaintiff has at least 21 days prior to the service of such notice, written to the defendant

giving him notice of his intention to serve a notice of motion for judgment and at the same time consenting to the late

delivery of defence within 21 days of the date of the letter.

(2) If no defence is delivered within the said period the plaintiff shall be at liberty to serve a notice of motion for

judgment in default of defence, which shall be returnable to a date not less than 14 clear days from the date of the

service of the notice; such notice of motion to be filed not later than 6 days before the return date.

(3) If, not later than 7 days after the service of such notice of motion for judgment, the defendant delivers a defence to

the plaintiff and not later than 6 days before the return dated lodges a copy thereof in the Central Office with a certified

copy of the said notice of motion attached thereto, the said motion for judgment shall not be put in the judges’ list but

shall stand struck out and the defendant shall pay to the plaintiff the sum of Euro 750 for his costs of the said motion

for judgment”

10. It is common case that the plaintiffs’ proceedings are not an action referred to in the preceding rules of O.27 and hence rule 8

applies. The plaintiffs’ claim is a claim for unliquidated damages in tort and hence rule 9 also applies.

11. Rules 8 and 9 are concerned with the position where a defendant fails to deliver a defence. As appears from r.8, if a defendant

being bound to deliver a defence does not do so within the time allowed, then the plaintiff may “subject to the provisions of rule 9”

set down the action on motion for judgment. In accordance with r. 9, a motion for judgment in default of defence in certain actions

(including the plaintiffs), may not be served unless the warning letter with consent to the late delivery of defence within 21 days from

the date of the letter is served.

12. An issue arose in the course of submissions on the appeal as to whether r.9 applies to a second motion for judgment in default of

defence. In my view it does so. The wording of r.9(1) is that “no notice of motion for judgment in default of defence…” may be served

unless the 21 day warning letter is sent. Rule 9, unlike r.8, does not distinguish between a first application by notice of motion for

judgment in default of defence and a second application. No point was taken by the defendants in the High Court that no warning

letter pursuant to r.9 had been sent in advance of the second motion issued on the 14th December, 2009. Further it was not the

basis upon which the High Court judge struck out the notice of motion and therefore this Court is not basing its decision in any way

upon the failure of the plaintiffs to serve a 21 day warning letter in accordance with O.27 r.9(1) prior to the issue of the second

motion for judgment in default of defence. However the applicability of r.9 to a second motion for judgment in default of defence is

relevant to the interpretation of rule 8.

Interpretation of Order 27 rule 8.

13. I have concluded that that the jurisdiction given the Court in O.27, r.8(1) on a second application for judgment in default of

defence to grant judgment in favour of a plaintiff is only where the defendant at the date of the hearing of the motion has not

delivered a defence. My principal reasons for doing so are as follows.

14. The starting point to the disputed interpretation of O.27, r.8(1) is what it by its words provides the Court should, or may do, on a

second application for judgment. It must be recalled that the application is for judgment in default of defence. As appears from the

words of r.8(1) the Court is to give judgment against the defendant unless “the Court is satisfied that special circumstances… exist

which explain and justify the failure” and where it is so satisfied the Court is then to make an order extending the time and adjourning

the motion. The “failure” being referred to is a failure to deliver a defence. This express jurisdiction is clearly directed to a situation

where there is a continuing failure by a defendant to deliver a defence. The alternatives open to the Court under r.8(1) on a second

application for judgment in default of defence make no sense where a defence has already been delivered. The jurisdiction given to

the Court is to do one of two alternatives and the second by its express words does not apply where a defence has already been

delivered. It follows from the words used that the first of granting judgment also does not apply.

15. This interpretation is further confirmed by r. 8, providing that a plaintiff’s right to apply under that rule is subject to Rule 9. Hence

r.8 must be interpreted in a manner consistent with r.9, which, for the reasons already stated, applies to a second motion for

judgment in default of defence. As appears from r.9(2) it is only where the defence is not delivered within the further 21 days which

must be consented to in the warning letter, that a plaintiff may issue and serve a notice of motion. That notice of motion must be

returnable to a date not less than 14 clear days from the date of service of the notice of motion.

16. Rule 9(3) gives to a defendant a further period even after service of a second motion to deliver a defence and avoid the hearing

of the notice of motion. In accordance with the Rule, if the defendant delivers the defence not later than seven days after service of

the notice of motion and not later than six days before the return date, lodges a copy of the defence in the central office with a

certified copy of the notice of motion, then the motion for judgment is not put in the judge’s list but stands struck out (without any

order of a judge), and the defendant becomes obliged to pay the plaintiff the sum of €750 for his costs of the motion for judgment.

17. The provisions of r.9 evince a clear intention that the primary purpose of rules 8 and 9 of O.27 are to secure the delivery of a

defence and it is only where a defendant, notwithstanding the steps taken by a plaintiff and the effective permission to deliver late a

defence still fails to deliver a defence by the time of the hearing of the second motion for judgment that the Court is given jurisdiction

by O.27, r.8 to grant judgment on the statement of claim in favour of the plaintiff against the defaulting defendant.

18. This interpretation of O.27, rr.8 and 9 is in a context that it is long established that there is nothing in the rules of court which

prevents a defendant delivering a defence before judgment albeit outside of the time permitted by the rules or by an order of the

Court. Such an interpretation of the rules of court is long-standing. See Kennane v. Mackey [1889] 24 L.R.Ir. 495. Thus delivery of a

defence even after service of a second motion but before the hearing of the motion and application for judgment is permissible and

the defendant has no longer failed to deliver a defence or the proceedings be “in default of defence”.

19. Finally the above interpretation of the rule is consistent with the administration of justice in accordance with the constitutional

imperative of fair procedures. Mr. Tracey in making his submissions on the appeal accepted that fair procedures normally require the

Court to hear both parties before reaching a decision. This principle normally requires the Court to permit a defendant seek to defend

or defend the proceedings. Granting judgment in default of defence is an exceptional jurisdiction. It is only done where a defendant

fails to participate in the proceedings by delivering a defence, and justice requires that the plaintiff be granted judgment. The primary

purpose of O.27, rules 8 and 9 is to provide a mechanism whereby a plaintiff can effectively procure the delivery of a defence, be

compensated in costs for any motions and other steps which the plaintiff has to take to procure the defence and ultimately if a

defendant at the time of the hearing of a second motion for judgment in default of defence has still failed to deliver a defence and

has not satisfied the Court that there are special circumstances which justify such failure then obtain judgment in default of defence.

Conclusion

20. Accordingly I have concluded that Lavan J. correctly exercised the High Court jurisdiction on the hearing of the second motion for

judgment in default of defence on the 22nd February, 2010, the State defendants having delivered the defence, by striking out the

plaintiffs’ motion and awarding the costs of the motion to the plaintiffs. I would dismiss the appeal.