Important Procedural Changes in Civil Litigation

4 November 2021

Practitioners and parties to High Court litigation should be aware that from 13 November 2021, certain rules of the Superior Courts are due to change.1

Pursuant to S.I. 490/2021, the High Court will enforce new procedures and timelines in relation to default judgments. The aim of these amendments is to improve the procedures involved in applications for orders in default of Defence, Statement of Claim and Appearance and to standardise time limits for delivery of certain documents.

The amendments to the Rules of the Superior Courts (“RSC”) will apply to High Court proceedings, whether they were issued before or after the Commencement Date and whether the time for delivery of any pleading has expired before or after the Commencement Date. It is therefore crucial that practitioners ensure that the new rules are observed in all matters.

However, there is one exception, provided for in Section 2(3) of the S.I, whereby the old rules will still apply in respect of default Motions issued prior to the Commencement Date.

Most practitioners and parties to litigation will welcome these changes, as they are designed to limit the scope for delay and also to reduce the costs involved. However, it is important that all civil litigation practitioners familiarise themselves with the amendments so as not to fall foul of the new stricter timelines involved.

Key Amendments to the RSC

The key amendments to note are as follows:

1. 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 his / her intention to proceed with an application for Judgment in Default of Appearance. At the same time, the Plaintiff must 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 this time period, the Plaintiff will be entitled to issue a Motion seeking Judgment in default of Appearance, provided that an Affidavit of Service in respect of the Summons and the letter referred to above, or a “Notice in lieu of service”, as the case may be, 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 passing and perfection of the Order.

2. Order 20 – Statement of Claim

  • In actions commenced by either Summary Summons or Special Summons, a Statement of Claim is not required, unless ordered by the Court.
  • In actions commenced by Plenary Summons, a Defendant must serve a Notice calling on 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, the Defendant may apply to the High Court to dismiss the action, with costs, for want of prosecution (Order 27 of SI 490/2021).
  • If a Defendant does not serve such a Notice, the Defendant loses the right to do so.

3. 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.

4. 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 drawn to the other party’s attention when serving the Motion papers.

Conclusion

The amendments to the RSC introduced by SI 490/2021 will bring about significant changes to both the timeline for delivery of pleadings and the consequences for non-delivery. It is anticipated that the amendments will significantly reduce the scope for parties to delay proceedings, therefore reducing the costs incurred by the parties to the proceedings, and hopefully encourage a more pro-active approach by all parties involved.

For further information regarding the above, please contact Paul Dempsey (Partner), Niamh O’Brien (Solicitor) (nobrien@efc.ie), or another member of the dispute resolution department at Eugene F Collins.

1 Statutory Instrument Number 490 of 2021 (“S.I. 490/2021”), which will be effective as of 13 November 2021 (the “Commencement Date”), will make important amendments to the Rules of the Superior Courts (“RSC”) by the substitution of Orders 13, 20, 21 and 27, and the amendment of Order 23 rule 6 and Order 63 rule 1.
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