S.I. No. 490/2021 - Rules of the Superior Courts (Procedure on Default) 2021

1. If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, subject to the provisions of rule 2, at the expiration of that time, apply to the Court to dismiss the action, with costs, for want of prosecution; and on the hearing of such application, the Court shall, where it is satisfied that the plaintiff has been served with notice of the application order the action to be dismissed accordingly, unless the Court is satisfied, for reasons to be recited in the order, that it is necessary in the interests of justice that the time for delivery of the statement of claim should be extended and, where it is so satisfied, the Court shall make an order

(a) extending the time for delivery of a statement of claim for such period as the Court considers necessary in all of the circumstances, and

(b) providing that, unless the statement of claim is delivered and a copy of such statement of claim is filed in the Central Office within that extended period, the action shall stand dismissed without any further application to the Court and the proper officer may on request at any time thereafter certify such dismissal in writing.

2.(1) No notice of motion to dismiss the action for want of prosecution in actions claiming unliquidated damages in tort or contract may be served, unless the defendant has at least 28 days prior to the service of such notice, written to the plaintiff giving him notice of his intention to serve a notice of motion to dismiss the plaintiff’s claim and at the same time consenting to the late delivery of statement of claim within 28 days of the date of the letter.

(2) If no statement of claim is delivered within the said period the defendant shall be at liberty to serve a notice of motion to dismiss the action, with costs, for want of prosecution.

(3) The notice of motion shall be served on the plaintiff not later than ten days from the date on which it was issued, together with a letter specifically drawing the defendant’s attention to the provisions of sub-rule (4).

(4) If the plaintiff

(a) delivers a statement of claim to the defendant not later than 21 days after the service of such notice of motion to dismiss for want of prosecution, and

(b) lodges a copy of the statement of claim in the Central Office with a certified copy of the notice of motion attached thereto not later than ten days before the return date,

the said motion to dismiss shall not be put in the judges’ list but shall stand struck out and the plaintiff shall pay to the defendant the sum of €750 for his costs of the said motion to dismiss.

2. Where leave has been given to a defendant to defend under Order 37, he shall deliver his defence (if any) within such time as shall be limited by the order giving leave to defend or, if no time is thereby limited, within fourteen days from the order.

3. Subject to the provisions of rules 16 and 17, if the plaintiff’s claim be only for a debt or liquidated demand, or for the recovery of land, or for the delivery of specific goods, and the defendant does not within the time allowed for that purpose deliver a defence, the plaintiff may at the expiration of such time enter final judgment in the Central Office for the amount of such debt or liquidated demand, or that the person whose title is asserted in the statement of claim shall recover possession of the land, or for the delivery of the specific goods without giving the defendant the option of retaining such goods upon paying the value thereof, as the case may be, with costs.

4. If the plaintiff’s claim be for a debt or liquidated demand, or for the recovery of land, or for the delivery of specific goods, and also for pecuniary damages or any other relief, and the defendant does not within the time allowed for that purpose deliver a defence, the plaintiff may enter final judgment as in rule 3 provided and may also apply as in rule 9 provided in respect of the said claim for pecuniary damages or other relief.

5. When in any such action as in rules 3 and 4 mentioned there are several defendants, if one of them make default as mentioned in the said rules, the plaintiff may enter final judgment against the defendant so making default, and issue execution upon such judgment without prejudice to his right to proceed with his action against the other defendants or against the said defendant under rule 4.

6. If the action be for recovery of land for non-payment of rent, no judgment shall be entered under this Order until an affidavit has been filed, made by the landlord, his agent, receiver, or clerk, stating that there was, at the commencement of the action, at last one year’s rent due above all just and fair allowances.

7. In an action for the recovery of a holding or of lands including a holding agricultural or pastoral, or partly agricultural and partly pastoral, in its character, for non-payment of rent no judgment shall be entered under this Order until an affidavit has been filed made by the landlord, his agent, receiver, or clerk, verifying the special indorsement on the summons. Such affidavit may be in the Form No 6 in Appendix A, Part 1.

8. In probate actions, if any defendant make default in delivering a defence, the action may proceed, notwithstanding such default.

9.(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 10, set down the action on motion for judgment; and on the hearing of such application the Court shall, where it is satisfied that the defendant has been served with notice of the application, 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, for reasons to be recited in the order, that that it is necessary in the interests of justice that the time for delivery of the defence should be extended and, where it is so satisfied, the Court shall make an order

(a) extending the time for delivery of a defence for such period as the Court considers necessary in all of the circumstances, and

(b) providing that, unless the defence is delivered and a copy of such defence is filed in the Central Office within that extended period, judgment shall be entered for the plaintiff in the Central Office without any further application to the Court.

(2) Where the Court gives judgment to the plaintiff in accordance with sub-rule (1), it may

(a) in any case in which it considers it appropriate to do so, grant such of the relief claimed in the statement of claim as appears to be just and proper on the hearing of the motion and/or

(b) set the matter down for

(i) the determination of any relief other than damages, and

(ii) the assessment of any damages to which the plaintiff may be entitled, to be ascertained by a 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 a Judge or by the Master or by the Examiner, as the Judge may direct, on evidence by affidavit or otherwise.

(3) Where judgment is entered for the plaintiff in the Central Office pursuant to an order made in accordance with sub-rule (1), the plaintiff may

(a) apply by notice of motion to the Court for any relief other than damages claimed in the statement of claim, and the Court may, on the hearing of the motion, where it considers it appropriate to do so, grant such of the relief claimed in the statement of claim as appears to be just and proper on the hearing of the motion and/or

(b) set the matter down for

(i) the determination of any relief other than damages, and

(ii) the assessment of any damages to which the plaintiff may be entitled, to be ascertained by a 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 a Judge or by the Master or by the Examiner, as the Judge may direct, on evidence by affidavit or otherwise.

10.(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 28 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 28 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.

(3) The notice of motion shall be served on the defendant not later than ten days from the date on which it was issued, together with a letter specifically drawing the defendant’s attention to the provisions of sub-rule (4).

(4) If the defendant

(a) delivers a defence to the plaintiff not later than 21 days after the service of such notice of motion for judgment, and

(b) lodges a copy of the defence in the Central Office with a certified copy of the notice of motion attached thereto not later than ten days before the return date,

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 €750 for his costs of the said motion for judgment.

9. Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall in his defence, state specifically that he does so by way of counterclaim.

10. Where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff along with any other persons, he shall add to the title of his defence a further title similar to the title in a statement of claim setting forth the names of all the persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver his defence to such of them as are parties to the action within the period within which he is required to deliver it to the plaintiff.

11. Where, in any such action as mentioned in rule 9, there are several defendants, then, if one of such defendants make such default as aforesaid, the plaintiff may either (if the cause of action is severable) set down the action at once on motion for judgment against the defendant so making default, or may set it down against him at the time when it is entered for trial or set down on motion for judgment against the other defendants.

12. If the plaintiff does not deliver a reply, or any party does not deliver any subsequent pleading, within the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue.

13. In any case in which issues arise in an action other than between plaintiff and defendant, if any party to any such issue makes default in delivering any pleading, the opposite party may apply to the Court for such judgment, if any, as upon the pleadings he may appear to be entitled to, and the Court may order judgment to be entered accordingly, or may make such other order as may be necessary to do complete justice between the parties.

14. Before judgment by default shall be entered for any debt or liquidated demand under this Order, an affidavit shall be filed specifying the sum then actually due.

15.(1) Any order dismissing the plaintiff’s action for want of prosecution, whether under this Order or any other Order of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the failure special circumstances (to be recited in the order) existed which explain and justify the failure.

(2) Any judgment by default, whether under this Order or any other Order of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the default special circumstances (to be recited in the order) existed which explain and justify the failure, and where an action has been set down under rule 9, such setting down may be dealt with by the Court in the same way as if a judgment by default had been signed when the case was set down.

15. If, in any case in which the defendant sets up a counterclaim, the action of the plaintiff is stayed, discontinued, or dismissed, the counterclaim may nevertheless be proceeded with.

16. In proceedings brought by a moneylender or the assignee or legal personal representative of a moneylender for the recovery of money lent by the moneylender or any interest thereon, judgment in default of defence shall not be entered until after the expiration of 12 months from the date of issue of the summons by which the proceedings were instituted unless the leave of the Court shall have been first obtained. An application for such leave may be made by motion on notice served not less than four clear days before the hearing; and the provisions of Order 13, rule 16(2) and (3) shall apply to such application.

17. In actions to recover a debt or liquidated demand arising under a hire-purchase agreement or credit-sale agreement (as defined by the

Consumer Credit Act 1995

) or any contract of guarantee relating to such an agreement, judgment in default of defence shall not be entered until after the expiration of 12 months from the date of issue of the summons by which the proceedings were instituted unless the leave of the Court shall have been first obtained. An application for such leave may be made by motion on notice served, not less than four clear days before the hearing, personally or by registered post addressed to the defendant at his last known address; and judgment shall not be entered until an affidavit shall have been filed stating that the requirements specified in section 32 or (as the case may be)

section 58

of the

Consumer Credit Act 1995

have been complied with.

18.(1) The plaintiff shall notify the defendant in writing within 28 days from the date any judgment is entered in the Central Office in accordance with this Order.

(2) The plaintiff shall serve on the defendant a copy of any order of the Court granting judgment in default of defence within 28 days from the passing and perfection of such order.

(3) The defendant shall notify the plaintiff in writing within 28 days from the date on which any action first stands dismissed pursuant to an order made in accordance with rule 1.

(4) The defendant shall serve on the plaintiff a copy of any order of the Court dismissing an action for want of prosecution within 28 days from the passing and perfection of such order.”

EXPLANATORY NOTE

(

This note is not part of the Instrument and does not purport to be a legal interpretation

)

These rules amend the Rules of the Superior Courts, by the substitution of Orders 13, 20, 21 and 27, and the amendment of Order 23 rule 6 and Order 63 rule 1, to improve the procedures in applications to the High Court for orders in default of defence, statement of claim and appearance and to standardise time limits for delivery of certain documents.

In particular these rules provide for the following -

• that judgment be entered in a motion for judgment in default of defence or default of statement of claim except where justice requires an extension of time and that where such an extension is granted, the court shall make an “Unless Order”, thus requiring one court hearing only;

• 8 weeks for delivery of a statement of claim and delivery of a defence in all cases;

• the requirement of a 28 day warning letter prior to the bringing of an application for judgment in default including judgment in default of appearance and

• that a plaintiff be required to serve the motion on the defendant in all applications for judgment in default of appearance.

18. In every case in which a party shall plead the general issue, intending to give the special matter in evidence by virtue of any statute, he shall insert in the margin of his pleading the words “

by statute

” together with the year in which the statute on which he relies was passed, and also the section of such statute,; otherwise such defence shall be taken not to have been pleaded by virtue of any statute.

19. No plea or defence shall be pleaded in abatement.

20. No defendant in an action for the recovery of land upon the title, who is in possession by himself or his tenant, need plead his title, unless his defence depends on an equitable estate or right or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. Except in the cases herein before mentioned, it shall be sufficient to state by way of defence that he is so in possession and it shall be taken to be implied in such statement that he denies, or does not admit, the allegations of fact contained in the plaintiff’s statement of claim. He may, nevertheless, rely upon any ground of defence which he can prove except as herein before mentioned.

21. In case of such an action being brought by some or one of several persons entitled as joint tenants, tenants in common, or coparceners, any joint tenant, tenant in common, or coparcener in possession may set forth in his defence that he is such joint tenant, tenant in common, or coparcener, and defends as such, and that he admits the right of the plaintiff to an undivided share of the property, stating what share, but denies any actual ouster of him from the property, and upon the trial of such issue the additional question of whether an actual ouster has taken place shall be tried.

22. A person who has appeared in an action for the recovery of a holding, agricultural or pastoral, or partly agricultural and partly pastoral, in its character, for non-payment of rent, and has limited his appearance in accordance with Order 12, rule 22 shall deliver his defence (if any) within eight weeks after his appearance.

23.(1) Where a defendant intends or proposes to offer expert evidence on any matter (including on any matter arising only in connection with a counterclaim) at the trial, the defence (or, as the case may be, the counterclaim) shall disclose that intention or proposal and state succinctly the field of expertise concerned and the matters on which expert evidence is intended or proposed to be offered.

(2) This rule shall not apply to personal injuries actions.”

Schedule 3

“

Order 27

Default of Pleading

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

1

st October,

2021.

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the

Courts of Justice Act 1936

, section 67, and reconstituted pursuant to the provisions of the

Courts of Justice Act 1953

, section 15, by virtue of the powers conferred upon us by the

Courts of Justice Act 1924

, section 36, the

Courts of Justice Act, 1936

, section 68 (as applied by the

Courts (Supplemental Provisions) Act 1961

, section 48), the

Courts (Supplemental Provisions) Act 1961

, the

Interpretation Act 2005

, section 24, and of all other powers enabling us in this behalf, do hereby make the following Rules of Court.

Dated this 7th day of July 2021.

Frank Clarke (Chairperson)

George Birmingham

Mary Irvine

Elizabeth Dunne

John A. Edwards

Brian R. Murray

Richard Humphreys

Conor Dignam

Liam Kennedy

James Finn

Mary Cummins

I concur in the making of the following Rules of Court.

Dated this 24th day of September 2021.

HEATHER HUMPHREYS

Minister for Justice