A new Statutory Instrument No 490/2021 published on the 1st of October 2021 and intended to come into operation from the 13th of November 2021 has made changes to the rules of the Superior Courts.
These amended rules are intended to apply to all proceedings whether commenced before or after the commencement date of the Statutory Instrument and whether the time for delivery of any pleading or document in existing proceedings has expired before or after the commencement date of the 13th of November 2021, thus operating retrospectively in all existing proceedings.
Some of the key changes which should be noted are as follows.
1.Statement of Claims and Defence
The time allowed for the delivery of a Statement of Claim and Defence (and counterclaim if relevant) has been set at 8 weeks in all cases.
2. Motions for Judgment in Default of Appearance
Plaintiffs are now required to serve Defendants in all applications with Motions for Judgment in default of Appearance
3.Warning Letters in advance of Motions
The time period for warning letters to allow Plaintiff’s to bring a Motion for Judgment in Default has been extended to 28 days including Motions for Judgments in default of Appearance.
4. Unless Orders
Judgment will be entered in Motions for Judgment in default of Defence or Statement of Claims except where justice requires an extension of time and where an extension is granted, the Court must make an Unless Order. This means that the Court will order that Judgment will be made in default unless the outstanding document is filed/served within a period of time as stipulated by the Court. This will be of assistance to all parties that a Motion for Judgment will only become before the Court once. Currently, parties are often required to issue numerous Motions for Judgment, which incur legal costs on each instance, when the offending party continues to fail and/or refuse to file and serve the outstanding pleading.
By way of clarification, any extension to time periods that comes into being as a result of these amended rules shall be applied retrospectively to all existing cases. Any party alleging default should not proceed with a Motion for Judgment until the longer time period has in fact expired.
Importantly, this can be applied irrespective as to whether or not the warning letter in relation to the default referred to the shorter time period as such it appears that an amended or fresh warning letter will not be required so long as the party applies the correct time period, in practice.
If a motion or application has already been given a date to be heard prior to 13th November 2021 grounded on a shorter time period, same shall be determined by reference to the previous rules applicable on the date the application or motion was issued in the Court Office.
Where a Defendant fails to appear to a Summons, a Plaintiff wishing to proceed with Motion in Default of Appearance must now first serve a notice in writing to the Defendant confirming the intention to proceed, allowing a time period of 28 days from the date of their notice and consenting to the late entry of the Defendant’s Entry of Appearance within that 28 days.
Once the 28 days have passed, if the appearance has not been entered the Plaintiff is at liberty to proceed with an application for the default of the Appearance provided that he has filed an Affidavit of Service of the Summons and of the 28-day warning/consent letter.
The Plaintiff is also required to notify Defendant in writing within 28 days from the date of any judgment which is entered into the Central Office in accordance with any order for default made and the Plaintiff must also serve a copy of the order on the Defendant within 28 days of the perfection of same.
The rules differ slightly in relation to originating Summons which have been issued on foot of a claim for liquidated sums, money lenders or demands under a higher purchase/ credit sale agreement each of which are dealt with under Order 13 Rule 4, paragraphs 1, 2 and 3.
In actions for debt or liquidation demand in money, a mere denial of debt shall no longer be admissible.
These rules will be applied retrospectively to existing proceedings and will be welcomed by many as they will be of assistance in streamlining the default application procedure and may result in lower legal costs for parties who otherwise may have had to issue numerous Motions under the previous rules.
Should you have any queries in relation to personal injuries actions and/or litigation, please do not hesitate to contact Brendan Dillon, Donna Phelan or Conor White here at the office at 01 296 0666.
