Order 5B

Actions for Possession and Well-charging Reliefs : S.I. No. 264 of 2009

PROCEDURE IN CERTAIN ACTIONS FOR POSSESSION OR SALE OF LAND AND ACTIONS FOR WELL-CHARGING RELIEF[2]

1.[3] This Order applies to any proceedings in which the plaintiff claims any of the following reliefs.

(a) recovery of possession of any land on foot of a legal mortgage or charge;

(b) an order declaring the amount due on foot of a mortgage to be well charged on land;

(c) an order under section 100(3) of the Land and Conveyancing Law Reform Act 2009 authorising the exercise by a mortgagee of a power of sale.

2. Save where otherwise expressly provided by this Order, in the event that any conflict shall arise between the provision of any rule of this Order and any other provision of these Rules, the provision of the rule of this Order shall, in respect of any proceedings to which this Order applies, prevail.

3. [4] (1) Proceedings to which this Order applies shall be commenced by a Civil Bill in Form 2R of the Schedule of Forms. The special indorsement of claim in such Civil Bill shall state specifically and with all necessary particulars the relief claimed and the grounds thereof.

(2) In proceedings to which this Order applies, the Civil Bill shall include a statement immediately following the Special Indorsement of Claim as to whether:

(a) the proceedings are commenced in the Court under the jurisdiction conferred by section 101(5) of the Land and Conveyancing Law Reform Act 2009, and in such case, whether section 2 of the Act of 2013 applies to the proceedings, or

(b) the proceedings are commenced in the Court under the jurisdiction conferred by section 3 of the Land and Conveyancing Law Reform Act 2013.

(3) A Civil Bill to which this Order applies shall be served, together with a copy of the affidavit mentioned in rule 5, on each defendant not later than 21 days before the return date mentioned in rule 4.

4. Every Civil Bill to which this Order applies shall, upon being issued, be assigned a return date before the County Registrar, which date shall be entered in the Civil Bill.

5.[5] [6] (1) There shall be served with the Civil Bill a copy of an affidavit which shall conform to the requirements of Form 54 in the Schedule of Forms (and copies of any exhibits to that affidavit) sworn by or on behalf of the plaintiff, verifying and supporting the claim indorsed on the Civil Bill.

(2) Where the agreement for a mortgage on foot of which proceedings to which this Order relates have been commenced is or was at the material time or times one to which a code drawn up by the Central Bank of Ireland in accordance with section 117 of the Central Bank Act 1989 applies, the affidavit shall identify the code concerned.

(3) A defendant intending to defend proceedings to which this Order applies shall enter an Appearance in the Office in Form 5 in the Schedule of Forms within ten days of the service upon him of the Civil Bill and shall defend the plaintiff’s claim by filing a replying affidavit to the plaintiff’s affidavit setting out the defendant’s defence and serving a copy of that affidavit (and copies of any exhibits to that affidavit) on the plaintiff not later than four days before the return date.

6. (1) No party shall have the right in proceedings to which this Order applies to adduce any evidence otherwise than by affidavit, except—

(a) by leave of the Judge,

(b) where permitted in accordance with rule 7(4) or rule 8(1), or

(2) Any party desiring to cross-examine a deponent who has sworn an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a notice in writing requiring the production of the deponent for cross-examination, and unless such deponent is produced accordingly his affidavit shall not be used as evidence unless by the special leave of the Court.

7.[7] (1) On the return date of the Civil Bill (or on any adjournment from such date), the County Registrar may, in addition to any other order which the County Registrar has power to make:

(a) order service of the Civil Bill on any other person;

(b) make an order enlarging the time for entry of an appearance;

(d) give any other directions for the preparation of the proceedings for trial;

(e) where an appearance has not been entered or an affidavit in accordance with rule 5(2) setting out a defence has not been filed and delivered, make an order for possession in accordance with paragraph (xxxiii) or (xxxiv) of the Second Schedule to the Courts and Courts Officers Act 1995;

(f) where the parties are sui juris, make an order to receive a consent and make the same a rule of court.

(2) Where a replying affidavit has been filed in accordance with rule 5(2) which discloses a prima facie defence, the County Registrar shall transfer the Civil Bill, when in order for hearing, to the Judge’s list on the first opportunity.

(3) For the purposes of this rule, or for the purpose of any hearing before himself, the County Registrar may extend the time for filing affidavits and give such directions and adjourn the case before himself as he thinks fit.

(4) Evidence as to failure to enter an appearance within the time permitted by these Rules may be given by production of a certificate of non-appearance issuing from the Office or otherwise as where the County Registrar permits.

8.[8] (1) If at any stage during the course of proceedings instituted by Civil Bill in accordance with this Order it appears to the Judge or the County Registrar that the determination of any issue is necessary for the proper decision or ruling as to the relief to be granted in such proceedings or as to any matter arising therein, the Judge may, or the County Registrar may on consent, settle such issue to be tried, and evidence as to any issue of fact may be given either orally or by affidavit or partly orally and partly by affidavit as the Judge in the circumstances thinks proper.

(2) The Judge may, where he considers it appropriate, adjourn a Civil Bill listed before him under this Order for plenary hearing as if the proceedings had been originated otherwise than in accordance with this Order, with such directions as to pleadings or discovery as may be appropriate.

(3) Without prejudice to the power exercisable by the Court, of its own motion or on an application by the plaintiff, to adjourn proceedings under section 101(1)(a) of the Land and Conveyancing Law Reform Act 2009 or to grant relief in accordance with section 101(1)(b) of that Act, an application by a defendant to the Court for such an adjournment or such relief, shall, unless such evidence has previously been given on affidavit in the proceedings, be grounded on an affidavit, which shall:

(a) where the defendant is seeking time to pay any arrears, including interest, due under the mortgage—

(i) set out and verify the assets and liabilities of the defendant or verify a statement of the assets and liabilities of the defendant which is exhibited to such affidavit and

(ii) set out detailed particulars of the defendant’s proposal to make such payment, or

(b) where the defendant is seeking time to remedy any other breach of obligation arising under the mortgage, set out detailed particulars of the defendant’s proposal to effect such remedy.

9. On the hearing of any Civil Bill to which this Order applies, the Judge may give judgment for the relief to which the plaintiff appears to be entitled.

10. (1) The Judge may give any special directions touching the carriage or execution of any judgment or order, or the service thereof upon persons not parties, as he thinks just.

(2) The Judge or the County Registrar may make such order as to costs as he considers just, including an order measuring any costs awarded

[1] Order 5B inserted by SI 264 of 2009, effective 8 July 2009.
[2] Title amended by SI 171 of 2016, effective 19 May 2016.
[3] Order 5B rule 1 substituted by SI 346 of 2015, effective 17 August 2015.
[4] Order 5B rule 3 substituted by SI 346 of 2015, effective 17 August 2015.
[5] Order 5B rule 5 substituted by SI 346 of 2015, effective 17 August 2015.
[6] Order 5B rule 5(2) substituted by SI 358 of 2012, effective 15 October 2012.
[7] Order 5 rule 7(1)(e), 7(2) and 7(4) substituted by SI 358 of 2012, effective 15 October 2012.
[8] Order 5B rule 8(3) inserted by SI 346 of 2015, effective 17 August 2015.

Gaeilge

Order 42	Appeals to the Court of Criminal Appeal
General Amendment 2	S.I. No. 188 of 2008: Circuit Court Rules (Jurisdiction, Recognition, Enforcement and Service of Proceedings) 2008
General Amendment 3	S.I. No. 251 of 2009: Circuit Court Rules (Miscellaneous) 2009
General Amendment 4	S.I. No. 276 of 2014: Circuit Court Rules (Registered Post) 2014
General Amendment 5	S.I. No. 317 of 2013: Circuit Court Rules (Personal Insolvency) 2013
General Amendment 6	S.I. No. 379 of 2018: Circuit Court Rules (Fines (Payment and Recovery)) 2018
General Amendment 7	S.I. No. 445 of 2010: Circuit Court Rules (Miscellaneous) 2010
General Amendment 8	S.I. No. 583 of 2009: Circuit Court Rules (Combined Court Offices) 2009
General Amendment 9	S.I. No. 597 of 2014: Circuit Court Rules (Lugano Convention and Maintenance Regulation) 2014
Order 1	Sittings, language and office hours
Order 2	Venue
Order 2A	Jurisdiction and the Recognition and Enforcement of Judgments in Civil or Commercial Matters : S.I. No. 882 of 2004
Order 3	Judges' robes and mode of address to the judges
Order 4	Court Seal and Authentication of Court documents
Order 5	Commencement of proceedings
Order 5A	Procedure by personal injuries summons : S.I. No. 526 of 2005
Order 5B	Actions for Possession and Well-charging Reliefs : S.I. No. 264 of 2009
Order 6	Parties
Order 5C	Defamation Act 2009 : S.I. No. 486 of 2009
Order 7	Third Party Procedure
Order 8	Actions by and against firms and persons carrying on business in names other than their own
Order 9	Joinder of Claims
Order 10	Indorsement of claim
Order 11	Issue of civil bills - service of documents : S.I. No. 132 of 2009
Order 12	Renewal of Civil Bill
Order 13	Service out of the jurisdiction
Order 14	Service out of the Jurisdiction under the 1998 Act, Regulation No. 1215/2012 or the Lugano Convention : S.I. No. 618 of 2015
Order 14A	Service out of the Jurisdiction under: Council Regulation (EC) No 2201/2003 (Matrimonial Matters and Matters of Parental Responsibility) Council Regulation (EC) No 4/2009 (Maintenance Obligations) : S.I. No. 597 of 2014
Order 14B	Service in EU Member States (including the State) of judicial and extra-judicial documents : S.I. No. 883 of 2004 (as amended by S.I. No. 597 of 2014)
Order 15	Appearance, defence, lodgment, offer of payment in lieu of lodgment and counterclaim
Order 16	Security for costs
Order 17	Particulars and further particulars in claim or defence
Order 18	County Registrar
Order 19	Side-bar applications
Order 19A	Case Progression (General) : S.I. No. 539 of 2009
Order 20	Sittings in chambers and interlocutory applications
Order 21	Discontinuance
Order 22	Change of parties
Order 23	Evidence
Order 23A	Taking of evidence for EU Courts : S.I. No. 302 of 2013
Order 24	Attendance of witnesses
Order 25	Affidavits
Order 26	Judgment by default in cases of liquidated demands and claims for delivery of goods and chattels
Order 27	Judgment by default in cases not coming within the preceding order
Order 28	Summary judgment
Order 29	Judgment by consent in the office
Order 30	Review of judgments
Order 31	Admissions
Order 32	Discovery and inspection of documents and interrogatories
Order 33	Trial
Order 33A	Mediation and other alternative dispute resolution processes : S.I. No. 11 of 2018
Order 34	Order as to trial of separate issues
Order 35	Transfer of Actions
Order 35A	European Enforcement Orders : S.I. No. 1 of 2006
Order 35B	European Account Preservation Order : S.I. No. 2012 of 2017
Order 36	Execution
Order 37	Attachment and committal
Order 38	Attachment of debts by garnishee
Order 39	Receiver by way of equitable execution
Order 40	Interpleader
Order 41	Appeals from the District Court
Order 41A	Fines (Payment and Recovery) : S.I. No. 379 of 2018
Order 43	Sales
Order 44	Security
Order 45	Administrators pendente lite and receivers
Order 46	The County Officers and Courts (Ireland) Act, 1877; the Settled Land Acts; the Trustee Relief Acts; and the Trustee Acts
Order 46A	Land and Conveyancing Law Reform Act 2009 : S.I. No.155 of 2010
Order 46B	Multi-Unit Developments Act 2011 : S.I. No. 153 of 2011
Order 47	Persons of unsound mind
Order 47A	Mental Health : S.I. No. 11 of 2007
Order 47B	Applications under the Assisted Decision-Making (Capacity) Act 2015
Order 48	Accounts
Order 49	Intoxicating liquor licences
Order 50	Probate actions
Order 51	Landlord and tenant
Order 51A	Residential Tenancies Act 2004 : S.I. No. 388 of 2005 Circuit Court Rules (Residential Tenancies Act 2004) 2005
Order 52	Malicious injuries
Order 53	Restoration of Companies to the Register pursuant to Chapter 2 of Part 12 of the Companies Act 2014 : S.I. No. 471 of 2015
Order 53A	Examinership : S.I. No. 471 of 2015 Circuit Court Rules (Companies Act 2014) 2015
Order 53B	Investigation of company’s affairs under Part 13 of the Companies Act 2014 : S.I. No. 471 of 2015
Order 54	Housing Act, 1966
Order 55	Housing (Miscellaneous Provisions) Act, 1979 (No. 27 of 1979)
Order 56	Planning
Order 57	Employment
Order 57A	Equal Status Acts 2000 to 2004 : S.I. No. 349 of 2006
Order 57B	Pension Ombudsman : S.I. No. 588 of 2007 & S.I. No. 446 of 2010
Order 58	Local Elections (Petitions and Disqualifications) Act, 1974 (No. 8 of 1974)
Order 59	Family law : S.I. No. 427 of 2018
Order 59A	Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 : S. I. No. 385 of 2011
Order 60	Data protection : S.I. No. 222 of 2019
Order 61	Provision of documentation pursuant to section 14 of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1998
Order 61A	Jurisdiction and the Recognition and Enforcement of Judgments and Decisions of the Circuit Court in Civil or Commercial Matters : S.I. No. 618 of 2015
Order 62	Cases stated
Order 63	Transfer of trial to the Dublin Circuit Court
Order 64	Motions
Order 64A	Funds in court : S.I. No. 525 of 2005
Order 64B	Procedure in Statutory Applications : S.I. No. 470 of 2009
Order 64C	Procedure in Statutory Appeals : S.I. No. 470 of 2009
Order 66	Costs
Order 65	Amendments
Order 67	General
Order 67A	Recording of Proceedings : S.I. No. 354 of 2008
Amendment to Order 67A	S.I. No. 100 of 2013: Circuit Court Rules (Recording of Proceedings) 2013
Order 68	Sex Offenders Act, 2001
Order 68A	Criminal Justice Act 2006 : S.I. No. 169 of 2007
Order 68B	Criminal Law (Insanity) Act 2006 : S.I. No. 596 of 2007
Order 69	Section 39 Criminal Justice Act, 1994: S.I. No. 448 of 2004
Order 70	European Arrest Warrant Act 2003 : S.I. No. 57 of 2005
Order 71	Taxi Regulation : S.I. No. 350 of 2006
Order 72	Appeals under the Social Welfare Consolidation Act 2005 : S.I. No. 10 of 2007
Order 72A	Health (Repayment Scheme Act 2006) 2007 : S.I. No. 446 of 2007
Order 72B	S.I. No. 585 of 2008: Consumer Protection Act 2007
Order 73	Proceedings under the Personal Insolvency Act 2012 : S.I. No. 317 of 2013
General Amendment 1	S.I. No. 155 of 2010: Circuit Court Rules (Land and Conveyancing Law Reform Act 2009) 2010

Circuit Court Rules

Order 5B

Actions for Possession and Well-charging Reliefs : S.I. No. 264 of 2009

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