by Mary Hough October-22-2021 in Litigation & Dispute Resolution

The Superior Courts Rules Committee has introduced far reaching changes to the manner and pace at which civil litigation is conducted through the introduction of Statutory Instrument 490 of 2021, recently signed by Minister for Justice Heather Humphreys and due to commence on 13 November 2021.  Behind the apparently innocuous title ‘Rules of the Superior Courts (Procedure on Default) 2021’ lie some very significant and radical changes which are likely to have an impact on all parties to civil litigation.

The Statutory Instrument introduces changes to the Rules of the Superior Courts with the stated intention of improving the procedure 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.

In particular, the rules provide for the following:

  • that judgment be entered in a motion for judgment in default of defence or default of statement of claim except where justice requires an extension of time and that where such an extension is granted, the court shall make an ‘Unless Order’, thus requiring one court hearing only;
  • 8 weeks for delivery of a statement of claim and delivery of a defence in all cases;
  • the requirement of a 28 day warning letter prior to the bringing of an application for judgment in default including judgment in default of appearance and;
  • that a plaintiff be required to serve the motion on the defendant in all applications for judgment in default of appearance.

 

The change to the procedure for dealing with motions seeking judgment in default of defence is radical and brings about very significant change for legal practitioners and their clients.  Judicial discretion in relation to striking out motions with an order extending time for delivery of a defence has been removed. Instead, the changes introduced by the Statutory Instrument mandate that the court must order judgment in favour of the plaintiff unless it is satisfied, for reasons to be recited in the order, that it is necessary in the interests of justice, that an order is made extending the time for the delivery of the defence. Where it is so satisfied and makes an order extending time for delivery of the defence, unless the defence is delivered and a copy filed in the Central Office within the extended period, judgment shall be entered for the plaintiff without any further application to the court. 

For the motion to be valid, it must be served on the defendant within 10 days of the date of its issue, following the mandatory service on the defendant of a 28 day warning letter consenting to the late delivery of the defence.

Provision is made for a judgment to 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” existed which explain and justify the failure. It remains to be seen what the court will consider to be “special circumstances” and whether this could extend to include an error or oversight on the part of a legal practitioner or whether the court will interpret “special circumstances” more narrowly.  Where the court is satisfied that there are “special circumstances”, provision is made that these must be recited in any order made setting aside the judgment.   

 

Conclusion

With the commencement of Statutory Instrument 490 of 2021, ‘Unless Orders’ will become a frequent feature of civil litigation in the High Court and are destined to soon become the ‘new normal’. Legal practitioners, particularly those representing defendants in civil litigation, will need to be on their toes to avoid falling foul of this new regime, given the very serious implications for their clients of judgment being ordered against them in default.

Hayes solicitors are very familiar with all aspects of civil litigation and the specifics of this new Statutory Instrument. If you would like further information please reach out to Mary Hough mhough@hayes-solicitors.ie or a member of our Litigation and Dispute Resolution team.

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About the Author

Mary Hough
Mary Hough

Mary is a partner and Head of the Healthcare team at Hayes solicitors. She specialises in professional indemnity defence litigation and in particular dealing with high value clinical negligence claims. Mary has extensive experience in civil litigation, acting for insurance companies, indemnifiers and plaintiffs.