Introduction
Procedural amendments to default applications in the High Court are on the horizon with the introduction of a new Statutory Instrument Number 490 of 2021 (“SI 490/2021”). The new rules under SI 490/2021 will amend the Rules of the Superior Courts1 (“RSC”) by the substitution of Orders 13 (Default of Appearance), 20 (Statement of Claim), 21 (Defence and Counterclaim) and 27 (Default of Pleading) and the amendment of Order 23, Rule 62 and Order 63, Rule 13. These changes will come into operation on 13 November 2021 (the “Commencement Date”) and will “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”. 4
The new rules will apply to proceedings commenced both before or after the Commencement Date. However, where an application or appeal is pending in relation to an alleged default of appearance or default of pleading in cases commenced prior to the Commencement Date, or where the periods granted under SI 490/2021 to deliver pleadings are shorter than the current RSC, the current RSC will continue to apply.
The key changes are summarised as follows – this is not an exhaustive list and reference should be made to the specific rule in question as appropriate:
Order 13 – Default of Appearance
- Prior to bringing an application for judgment in default of appearance, a plaintiff is now required to serve a 28 day written notice on the defendant confirming the intention to proceed on default of appearance and also consent to the late entry of appearance within 28 days of the written notice.
- Once judgment is entered in the Central Office, a plaintiff must issue a notification letter to a defendant within 28 days from the date of judgment informing the defendant that judgment has been marked.
- Where a Court Order is made granting judgment in default of appearance, the plaintiff is similarly required to serve a copy of this court order on the defendant within 28 days of that order being perfected.
Order 20 – Statement of Claim
- Where the procedure is by plenary summons, a defendant must serve a notice to the plaintiff to deliver a statement of claim within eight days of entering an appearance. The time for delivery of a statement of claim by a plaintiff is eight weeks from service of the summons.
- Should a defendant fail to serve such a notice within eight days of entering an appearance, the defendant loses his / her right to do so.
Order 21 – Defence and Counterclaim
- In cases involving a plenary summons, the defence and counterclaim shall be delivered within eight weeks from the date of delivery of the statement of claim, or within eight weeks from the entry of appearance where a statement of claim is not required.
Order 27 – Default of Pleading
- Where proceedings are served and the plaintiff fails to deliver a statement of claim within the permitted timeframe, the defendant may apply to the Court to dismiss the action for want of prosecution. The Court may, however, extend the time for delivery of the statement of claim if satisfied that it is in the interests of justice. Should no statement of claim be delivered within the time period set out, an “Unless Order” shall take effect and the matter will be dismissed.
- The same scenario arises in relation to delivery of a defence by a defendant. A plaintiff may set the motion down for judgment if the defendant fails to deliver a defence within the time allowed, with the Court extending the time for delivery of a defence if satisfied it is appropriate to do so. An “Unless Order” will also then be made with judgment to be entered for the plaintiff should the defendant fail to comply.
- In either the case of the plaintiff or defendant issuing a motion which is rendered unnecessary by delivery of the outstanding pleading following service of the motion, the motion will not be put in the judges’ list, shall stand struck out and there shall be a costs penalty of €750 to the opposing party.
- 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.
Comment
The procedural rules introduced by SI 490/2021 will be a welcome development by practitioners and clients. The new rules aim to standardise and streamline default applications, setting stricter timeframes for litigants and thereby reducing delays to default proceedings. Given the retrospective nature of SI 490/2021, practitioners and clients should be cognisant of the immediate effect of the amendments.
For further information please contact Gráinne Dever, Mairéad Ní Ghabháin, Natalie Coen or any member of our Commercial Litigation and Dispute Resolution and Debt and Enforcement teams.
1 1986, as amended.
2 By the substitution for 6 of Order 23 of the following rule: “6. As soon as any party has joined issue upon the preceding pleading of the opposite party simply without adding any further or other pleading thereto, or has made default as mentioned in Order 27, rule 12, the pleadings as between such parties shall be deemed to be closed.”
3 By the substitution for paragraph (8) of rule 1 of Order 63 of the following paragraph: “(8) An order to dismiss an action with costs for failure to make an affidavit of discovery or to answer interrogatories.”
4 SI 490/2021, Explanatory Note.