Unless Orders have been in operation now since being formally introduced by Statutory Instrument 490 of 2021, which was commenced on 13th November 2021. This Statutory Instrument amended the Rules of the Superior Courts with the intention of expediting proceedings and limiting the number of Motions, and the repetition of Motions, in the Court lists where parties would be seeking orders for judgment in in default of appearance/defence or to strike out an action for want of prosecution for failure to deliver a statement of claim. The process is applicable to both Plaintiffs and Defendants and the Orders made set out strict time limits for delivery and filing of such documents.
Where a party was not able to comply with the Order, or failed to do so, and had their case dismissed or judgment in default was obtained Order 27 Rule 15 provides the following:
“(1) Any order dismissing the plaintiff’s action for want of prosecution, whether under this Order or any other Order of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the failure special circumstances (to be recited in the order) existed which explain and justify the failure.
(2) Any judgment by default, whether under this Order or any other Order of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the default special circumstances (to be recited in the order) existed which explain and justify the failure, and where an action has been set down under rule 9, such setting down may be dealt with by the Court in the same way as if a judgment by default had been signed when the case was set down.“
SPECIAL CIRCUMSTANCES
The reliance upon special circumstances was discussed in the judgement of Mr Justice Ferriter in Da Souza -v- Liffey Meats [2023 IEHC 402] dated 11th July 2023 . In this case, the Defence solicitor had been taking instructions from his client, had raised further and better particulars, was in the course of obtaining an expert report, and had written to the Plaintiff’s solicitor to express some surprise that a motion had been issued for judgment in default defence where there had been on delay to that point. On consent an unless Order was obtained allowing a period of 10 weeks for the delivery of the Defence. Critically, the Defence solicitor was not aware that the Order made was an “unless order”. To compound matters, the barrister instructed to draft the Defence had personal difficulties of a tragic nature. The Court considered whether ”special circumstances” existed which would explain and justify the failure, but also questioned whether “special circumstances” under the rule is to be treated not just at the date the Court made the order, but also at the date of the judgment by default. This was an approach adopted by a majority in the Supreme Court in McGuinn v. Commissioner of An Garda Síochána [2011] IESC 33. Judge Ferriter took the view that Supreme Court case supported the view he had taken in this case that the question of special circumstances arose, on the facts of this case, at the date of the judgment by default.
The Judge stated, “a more demanding set of reasons or circumstances is required than under the old regime, as part of a general tightening of approach to compliance with deadlines and expedition of litigation in light of the constitutional and Convention imperatives of ensuring that justice is administered efficiently and expeditiously.” He went on to note that “the general point remains that to treat a mistake or inadvertence by a solicitor as to the period ordered by a court for delivering a defence, failing which judgment will follow, would risk undermining the rationale for the rule being that of ensuring greater compliance with deadlines and court orders and ending the old culture of lax approaches to court-imposed deadlines and indulgence of disregard for court orders on procedural matters…. generally speaking, a solicitor mistake or inadvertence as to the terms or existence of an order for judgment in default (including an unless order) will not amount to special circumstances within the meaning of the rule. ”
The Court ultimately did find that the tragic circumstances which befell the Barrister, within the period issue, meant that he was not able to attend to this practice, and therefore explained and justified the default. The fact that the case had been fully defended up to that point, and a Motion to set aside the order had issued quickly indicated that it was also in the interest of justice that the Order be set aside.
RECENT CASE LAW AND COMMENT
In an unreported (and unapproved) Judgment of Ms Justice Brett delivered on the 11th July 2024 we have become aware of, similar matters fell for her consideration where a Plaintiff had obtained judgment in default of appearance against a Defendant. The case concerned an incident at the All Ireland Hurling final in August 2018. It was noted that the solicitors for the Plaintiff had not only progressed the proceedings on the Plaintiff’s behalf, but also in their warnings to the Defendant in connection with the impending motion, and interacting with who the solicitor believed to have been the Defendant’s insurers/broker at the time. To compound matters the Defendant had changed its registered address and only notified the CRO after the Plenary Summons had issued. The Defendant was aware of the proceedings and had passed same for the attention of their insurance broker. The Plaintiff’s solicitor continued to engage in correspondence with the Defendant’s insurance broker, and the Plaintiff ultimately obtained an unless order against the Defendant. A copy of the Order with proof of service occurred after the judgment had come into effect. A Motion to set the order aside was issued approximately 8 months after the order was perfected.
The Judge noted that this is a case in which inadvertence of a solicitor was not in issue, but rather an intermediary between the Defendant and a solicitor, and that the failure to nominate solicitors for such service resulted in no Appearance being entered on behalf of the Defendant. She accepted that there was a qualitative difference between a solicitor and others involved in the litigation process, but noted in so far as insurers cannot be said to be unfamiliar with the litigation process, they are not solicitors. The Judge noted a series of errors had occurred over a period of time; the receipt of the proceedings due to a change of registered address, confusion over which insurer covered the incident, a change in brokers occurring after the incident, and the Defendant’s belief that they had fulfilled their obligations under the policy of insurance by notifying its insurers of the communications received from the Plaintiff’s solicitor.
The Judge found that there were “special circumstances” in that the Defendant had notified its broker but also because the omission to enter an Appearance on behalf of the Defendant was not an omission made by legal advisors. She went on to state that the circumstances of this case included confusion in respect of the precise insurer cover relevant to the date of the Plaintiff’s claim, and a change in both insurance broker and insurer at different times between the incident and the receipt of the proceedings. The Defendant had demonstrated on Affidavit that it had a good defence to the Plaintiff’s claim and in the interests of justice the judgment obtained in default of Appearance should be set aside.
There was of course a cautionary passage in the judgment directed at insurers and insurance brokers, which might become unwittingly involved in the litigation process by not instructing solicitors. While Judge Brett noted the qualitative difference between a solicitor and others, this should not be considered a ‘get out of jail free card’ for insurers or insurance brokers but rather ‘an opportunity to give a timely warning… that proper attention must be given’.
