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

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

1. If a respondent who has been served with a claim notice in a claim other than a debt claim does not serve and file and 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 by motion on notice

2. (1) In any case in which this Order applies, the claimant may, subject to the provisions of this rule, at any time after the respondent’s default in serving and filing an appearance or serving a defence, by motion on notice to the respondent served on the respondent not less than four clear days before the return date of the motion, apply to the Court for judgment.

(2) Before issuing and serving a notice of motion for judgment under sub-rule (1), the claimant must at least 14 days before issuing the notice of motion write to the respondent giving the respondent notice of the claimant’s intention to serve a notice of motion for judgment and at the same time consenting to the late service of an appearance and defence within 14 days from the date of that letter.

(3) If an appearance and defence is not served within 14 days from the date of that letter, the claimant may issue (by filing with the Clerk to obtain a return date) and serve a notice of motion for judgment in default which must be returnable to a return date not less than 14 days from the date of the service of the notice of motion.

(4) An application under this rule must be supported—

(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 verifying affidavit 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 verifying the claim notice (provided that in a personal injuries action, a further affidavit is not required if the personal injuries summons has previously been verified); and

(iv) by a form of judgment (decree) (Form 49.03, Schedule C, with any necessary modifications).

(5) A copy of the affidavit verifying the claim notice must (unless previously served) be served on the respondent with the notice of motion. The remaining documents mentioned in sub-rule (4) must be produced on the hearing of the motion but, where permitted by the Court, the form of judgment (decree) may be filed with the Clerk subsequently.

(6) If the claimant can establish special reasons making it necessary to serve a notice of motion for judgment under this rule with greater urgency than in accordance with the notice periods provided, he or she may apply ex parte to the Court for an order giving the claimant permission to serve a notice of motion for judgment in default giving not less than four clear days’ notice to the respondent, or in the alternative the Court may deem good the service of a notice of motion actually served giving not less than four clear days’ notice to the respondent.

3 Motion struck out with costs if defence filed not less than 6 days before return date

3. If, after the service of a notice of motion for judgment, the respondent delivers a defence to the claimant and not less than six days before the return date files a copy of the defence with the Clerk, with a certified copy of the notice of motion attached, the motion for judgment will stand struck out and the respondent will be liable to pay to the claimant the costs of the motion for judgment in accordance with the Schedule of Costs.

4 Affidavit verifying claim

4. (1) The affidavit verifying the claimant's claim must be sworn within one month before the date of the application for judgment.

(2) Sub-rule (1) does not apply where the claimant relies on an affidavit of verification of a personal injuries summons made more than one month before the date of the application.

(3) 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.

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

5. (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 and may be included in the affidavit verifying the claim notice.

6 Return date

6. (1) All applications by motion for judgment under this Order must be assigned a return date for hearing before the Court.

(2) The Court may on hearing the application, and any evidence the Court considers appropriate—

(a) give judgment on the claimant’s claim contained in the claim notice in such amount as the Court is satisfied is just;

(b) give permission to the respondent to defend the whole or part of the claim on such terms as the Court considers just;

(c) direct that a further affidavit or affidavits be filed, or adjourn the application for the hearing of further evidence;

(d) refuse to make the order sought in the application; (e) make any other order it considers appropriate.

(3) If the Court, under sub-rule (2)(c), 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.

(4) 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) On the hearing of an application for judgment under this Order, the Court may make an Order for costs in accordance with the Schedule of Costs.

7 Proceeding continued against other respondents

7. 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.

8 Default of appearance and defence to counterclaim

8. If a respondent serves a counterclaim, rules 1 to 6 apply as if—

(a) the respondent were the claimant;

(b) a reference to the appearance in those rules were a reference to the appearance to the counterclaim; and

(c) the claimant were the respondent.

9 Setting aside judgment by default

9. (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.

10 Default of compliance

10. 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.