Big changes to Procedure on Default in High Court Proceedings

A summary of key changes to the default procedures


Order 13 – Default of Appearance
 

• Where a Defendant fails to enter an Appearance, the Plaintiff must first serve notice in writing on the Defendant confirming their intention to proceed with an application for Judgment in Default of Appearance. Additionally, the Plaintiff is to also consent to the late entry of an Appearance within 28 days of the date of the letter.
• If an Appearance is not entered within the 28 day limit, the Plaintiff is entitled to issue a Motion seeking Judgment in default of Appearance, providing an Affidavit of Service or “Notice in lieu of service” in respect of the Summons and the 28 day letter is filed.
• If a Plaintiff’s Motion for Judgment in Default of Appearance is successful, a copy of the Court Order must be served on the Defendant within 28 days from the handing down and perfection of the Order.

 
Order 20 – Statement of Claim
 

• Where actions are commenced by either Summary Summons or Special Summons, a Statement of Claim is not required, unless ordered by the Court.
• Where actions are commenced by Plenary Summons, a Defendant must serve a Notice calling the Plaintiff to deliver a Statement of Claim within 8 weeks of entering an Appearance. The Plaintiff will then have 8 weeks to serve a Statement of Claim.
• If the Plaintiff fails to deliver a Statement of Claim in the timeframe, the Defendant may apply to the High Court to dismiss the action, with costs, for want of prosecution.
• If a Defendant does not serve the Notice, the Defendant loses the right to do so.

 
Order 21 – Defence and Counterclaim
 

• In Plenary actions, a Defendant must deliver a Defence and Counterclaim (if any) within 8 weeks of the date of service of the Statement of Claim (if required); or
• Within 8 weeks of the date in which they entered an Appearance, whichever is the later.

 
Order 27 – Default of Pleadings
 

• Where a party is in default with the delivery of either a Statement of Claim or Defence, judgment will be entered in a Motion for Judgment in default of Statement of Claim/Defence, as appropriate, except where justice requires an extension of time.
• In those circumstances, the Court will now make an “Unless Order”. Therefore, if a Statement of Claim or Defence is not delivered or filed in the Central Office within the specified period of time, Judgment in default will be granted, therefore requiring only one Court hearing.
• Of particular note is that the Court can also grant the Plaintiff whatever alternative judgment it considers the Plaintiff is entitled to having regard to the reliefs sought in the Statement of Claim.
• Before a Motion for Judgment in default of Statement of Claim/Defence can be issued, a 28-day warning letter must be sent, together with a letter consenting to the late delivery of Statement of Claim/Defence within 28 days.
• The Motion papers must then be served on the appropriate party no later than 10 days from the date it was filed.
• If the party in default delivers a Statement of Claim/Defence within 21 days after the Motion is served and it is lodged in the High Court Central Office within 10 days of the return date, the Motion will not be put into the Judges List and will be struck out with costs of €750 awarded to the party who issued the Motion. This must be flagged to the other when serving the Motion papers.

 
Conclusion

The Amendments seek to reduce the ability to delay by parties to proceedings. This, with the goal to reaching resolution in a more cost effective and time sensitive manner.  It will be interesting to see if the Courts seek strict compliance with the new rules. Only time will tell!
 
Written by Noreen McGovern and Aaron Kelly.