Defendant’s beware of SI 490/2021: Unless Orders

Defendant’s beware of SI 490/2021: Unless Orders

Statutory Instrument 490 of 2021 is due to commence on the 13th November 2021 and will introduce significant changes to the practice and procedure of High Court litigation.  It is anticipated that these reforms will significantly reduce delay in proceedings thereby reducing costs and standardise time limits for delivery of certain documents.

The amendments to the rules of the Superior Courts will apply to High Court proceedings whether they were issued before or after the commencement date.  They will not however apply to Motions issued in advance of the commencement date.  Section 2 (3) of the SI states that the old rules will still apply in respect of default Motions issued prior to the commencement date.

Key Amendments:

In particular the new rules provide for the following: –

Order 13 – Default of Appearance:          Order 13 requires the Plaintiff to serve notice in writing to the Defendant who has failed to enter an Appearance confirming their intention to proceed with an application for Judgment in Default of Appearance while also consenting to the late entry of an Appearance within 28 days of the date of the letter.  The Plaintiff can then issue a Motion provided that an Affidavit of Service in respect of the Summons and the letter is filed in the Central Office.  The Plaintiff will be required to serve the Motion on the Defendant in all applications for Judgment in Default of Appearance.  If the Plaintiff’s Motion is successful, the Court Order must be served within 28 days of the perfection of the Order.

Order 27 – Default of Defence:                  Where a party is in default with a delivery of a Defence, Judgment will be entered in a Motion for Judgment in Default except where justice requires an extension of time.  The current position is that it is extremely rare for Judgment to be granted on hearing of the First Motion.  Generally, it is only on the Second Motion that a Court shall grant Judgment unless it is satisfied that special circumstances exist which explain and justify the failure to deliver the Pleading.  Once the new rules, come into play, these matters will no longer be at the Courts discretion.  Where a party is in default with the delivery of a Defence, judgment will be entered in a Motion for Judgment in Default of Defence except where justice requires an extension of time.  In those circumstances the Court will make an “unless Order”.  Therefore, if the Defence is not delivered within the specified time period Judgment in Default will be granted,  requiring only one Court hearing.  Before Judgment for Default can be issued, a 28 day warning letter must be sent together with a letter consenting to the late delivery of the Defence within 28 days.  The Motion papers must then be served on the appropriate party no later than 10 days from the date it is filed.  If the party in default delivers a Defence within 21 days after the Motion is served and is lodged in the High Court Central Office within 10 days of the return date, the Motion will not be put into the Judge’s list and will be struck out with costs of €750 awarded to the party who issued the Motion.

Conclusion:

This Statutory Instrument introduces very significant and radical changes particularly for Practitioners representing Defendants who going forward will not be able to rely on judicial discretion allowing Motions for Judgment to be struck out with an Order extending time for delivery of a Defence.  The Court must now order Judgment in favour of the Plaintiff unless it is necessary in the interests of justice that an Order can be made extending the time for delivery of the Defence.  The amendments introduced by this Statutory Instrument intends to reduce the delay in proceedings which will have a knock on effect in relation to costs and to standardise time limits for the delivery of certain documents to encourage a more pro-active approach by all parties involved in addition to trying to reduce the Motion and Courts lists.

 

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