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S.I. No. 17 of 2014 - provisions overview

1 Claimant may apply for judgment in default of appearance or defence

1. If a respondent who has been served with a claim notice in a debt claim does not serve and file an appearance or serve a defence within the time prescribed by Order 42, or within any other time fixed by the Court for serving and filing his or her appearance or for serving his or her defence, the claimant may apply for an order of judgment in default.

2 Application to be filed with Clerk

2. (1) An application under rule 1 must be filed with the Clerk and must be accompanied—

(i) by an affidavit or statutory declaration (Form 41.01, 41.02 or 41.03, Schedule C, as appropriate) of service of the claim notice; and

(ii) by a certificate (Form 47.01, Schedule C), which may be endorsed on the affidavit of debt signed by the claimant’s solicitor or by the claimant (if acting in person) that no appearance, notice requiring particulars or defence has been received from the respondent; and

(iii) by an affidavit of debt verifying the claimant’s claim (Form 47.02 or 47.03, Schedule C, as appropriate); and

(iv) by a form of judgment (decree) (Form 47.04 or 47.05, Schedule C, as appropriate).

(2) Where an application under rule 1 is by a Minister of a Government Department or the Commissioners of Public Works or another body or person entitled by statute to verify a claim for a sum due by a certificate under seal which is by statute made evidence of the matters certified instead of by affidavit, the applicant may file such a certificate instead of an affidavit verifying the claim.

(3) Where a respondent has executed a consent to judgment which has been duly witnessed, the applicant may file an affidavit (Form 47.06, Schedule C) verifying the consent instead of an affidavit of debt; and where the consent is to judgment by instalments, the form of judgment (decree) in Form 47.07, Schedule C must be used.

(4) The affidavit verifying the claimant's claim must be sworn (or the certificate specified in sub-rule (2) must be given) within one month before the date of the application for judgment. Judgment may not be given where the affidavit verifying the claimant's claim was not sworn (or the certificate specified in sub-rule (2) was not given) within one month before the date of the application for judgment.

(5) Where the application for judgment includes a claim in respect of value-added tax, the affidavit (or certificate) must verify whether or not value-added tax is payable by the claimant on his or her legal costs, and if payable whether or not the sum payable is recoverable by the claimant from the Revenue Commissioners.

3 Additional requirements where the claim notice was served outside the State

3. (1) Where the claim notice (or notice of the issue of the claim notice) was sent abroad for service under the provisions of the Service Regulation and the respondent has not served or filed an appearance and defence or given notice of his or her intention to defend, judgment in default may not be given until the Court is satisfied that the provisions of Article 19 of the Service Regulation have been complied with, and the provisions of Order 41A or, as appropriate, Order 41B apply to any such application.

(2) Where the claim notice (or notice of the issue of the claim notice) was sent abroad for service under the provisions of the Hague Convention and the respondent has not served or filed an appearance and defence or given notice of his or her intention to defend, judgment in default of appearance may not be given until the Court is satisfied that the provisions of Article 15 of the Hague Convention have been complied with.

(3) Evidence of compliance with the provisions of Article 19 of the Service Regulation or the provisions of Article 15 of the Hague Convention may be given by affidavit.

4 A Judge may issue a default judgment or refer to the Court

4. (1) If an application has been made to which rule 2(1) applies and a Judge is satisfied that an order should be made, the Judge may make such an order otherwise than at a sitting of the Court, and may fix the amount of costs and interest as is appropriate in the circumstances in accordance with the Schedule of Costs.

(2) If an application has been made to which rule 2(1) applies and a Judge is not satisfied that an order should be made, the Judge may, or if the claimant so requests, the Judge must, refer the matter to the Court for decision.

(3) An application to which rule 3 applies must be assigned a return date for hearing before the Court.

(4) If the Judge refers an application to the Court or an application is assigned a return date, the Court may on hearing the application, and any evidence the Court considers appropriate—

(a) make the order sought in the application;

(b) direct that a further affidavit or affidavits be filed;

(c) give directions as to the application;

(d) refuse to make the order sought in the application;

(e) make any other order it considers appropriate.

(5) If the Court, under sub-rule (4)(b), directs a further affidavit or affidavits to be filed, the Court may make a peremptory order which is effective on the filing of such affidavit or affidavits, without the application being heard again before the Court.

(6) The Clerk must notify the claimant of any order made by the Judge or (if the application has been referred to the Court) any decision or order of the Court.

5 Proceeding continued against other respondents

5. A claimant who obtains an order for judgment in default against a respondent in accordance with this Order may enforce the order and continue the proceeding against any other respondent. In the event that the claimant recovers by enforcement or otherwise the full amount of his claim including costs against any respondent, further proceedings against any remaining respondent must be stayed save in respect of any further costs as may be claimed against any other respondent.

6 Default of appearance and defence to counterclaim

6. If a respondent serves a counterclaim which is a debt claim, rule 1 applies as if—

(a) the respondent were the claimant;

(b) a reference to the appearance in that rule were a reference to the appearance to the counterclaim; and

(c) the claimant were the respondent.

7 Setting aside judgment by default

7. (1) A party against whom a judgment in default has been obtained under this Order may apply by notice of motion (Form 44.02 Schedule C with the necessary modifications) to the Court in the Court area in which the judgment was obtained for an order to vary or set aside the judgment on the ground that the same was obtained by fraud, misrepresentation, surprise, mistake or other sufficient ground.

(2) Service of the notice of motion does not operate as a stay of proceedings unless the respondent lodges with the Clerk the amount for which judgment was given and the amount fixed for costs.

8 Default of compliance

8. If a party fails to comply with an order made by the Court in civil proceedings, the Court may, where it considers it just to do so, dismiss the civil proceedings or strike out any defence or counterclaim and proceed to give judgment or make any order (including any order for costs) as is then appropriate as if the party in default had not pleaded.