Evidence in Civil Legal Actions-What You Need to Know

evidence-civil-actions

Evidence comprises facts in issue which are relevant and admissible in a Court or tribunal which tend to strengthen or weakens a party’s ability to discharge his burden of proof.

The standard of proof in a civil case is on the balance of probability; in a criminal case it is beyond all reasonable doubt.

Types of evidence

  • Direct evidence-sworn testimony of a witness
  • Primary evidence-for example, an original document
  • Secondary evidence-for example, a copy of an original document
  • Real evidence-material object produced in court for inspection
  • Circumstantial evidence-evidence of relevant facts from which the existence or non-existence of a fact may be inferred.

Burden of proof

There are 2 types of burden of proof:

  1. Legal burden. This burden is borne by the person asserting a fact and in a civil case the standard is on the balance of probability.
  2. Evidential burden of proof. This is the burden to show sufficient facts to persuade a judge to make a favourable finding.

How is evidence adduced?

Normally orally, and on oath, in open court. (See Order 39, Rules of the Superior Courts or Order 23 of the Circuit Court rules or Order 8 of the District Court rules).

Proceedings by special or summary summons may be heard on affidavit, however. A Court may also allow this in certain limited circumstances.

Facts must be admissible and relevant

Not all facts are admissible and Hearsay evidence is excluded. A witness can only prove a fact on the basis of what they saw or did, not what they were told by someone else.

The same rule applies to a written assertion.

Also, the Best evidence rule means that the best evidence-for example, an original of a document-should be produced.

Certain facts may also be excluded on the basis of privilege, for example

  • solicitor/client privilege,
  • the privilege against self incrimination
  • without prejudice communications
  • opinion evidence
  • leading questions

Presumption in civil actions

A presumption is an assumption which must be made until evidence to the contrary is adduced.

Common presumptions in civil legal cases are

  • res ipsa loquitur (the facts speaks for themselves). This doctrine is rebuttable.
  • Judicial notice-certain facts are so notorious as to not require evidence to prove them eg Dublin is the capital of Ireland, the sun sets in the west.

Formal admissions in a civil trial need not be proved eg where the parties agree on the special damages in the case.

Statutory change to the law of evidence

You will see from the personal injuries article that disclosure in personal injury actions is provided for in statutory instrument 391/98. This makes a slight change to the law of evidence as it makes rules for the admission of evidence, exchange of reports, documents etc.,

But the burden of proof has not been changed in any way and each party must prove its case.

Section 26 of the Civil Liability and Courts act 2004 provides for penalties for anyone giving false or misleading evidence in personal injuries actions.

Notice to Admit

The expense of running a trial is reduced somewhat by the Notice to Admit procedure. This provides for 2 types of notice: notice to admit facts and notice to admit documents.

Either party may call on the other to admit facts or documents, and a refusal to do so will mean the cost of proving any such document will be borne by the party refusing, unless the Court later rules that it was reasonable to do so.

Affidavit evidence

Affidavit evidence is a witness’s sworn evidence in writing. It must comply with the rules of evidence, that is the facts sworn must be relevant and admissible. The deponent of the affidavit can be called to give evidence in open court by the other side. When the affidavit refers to a document the document must be exhibited. Also, direct speech must be used and hearsay and opinion evidence (except in certain exceptional circumstances) is not permissible.

Evidence at trial

Evidence at trial must normally be given orally, and the witness must be competent and compellable. To be competent a witness must understand the nature of giving an oath and giving evidence.

Evidence given by a witness can be examined under 3 headings:

  1. examination in chief. This is evidence from a witness whose evidence will support your case, from a helpful witness who you have called. Leading questions may not be used, except in relation to facts which are not in dispute. A witness may refresh their memory in Court by referring to a document that the witness has made, provided certain conditions are met. A witness that you call to support your case cannot be cross-examined unless they become a hostile witness, that is give evidence contrary to that expected. If the Judge agrees that they are now a hostile witness, they can be cross examined.
  2. Cross examination. Any party can cross examine a witness not called by them.

The objectives of cross examination are

  1. to impugn the credibility of the witness
  2. to challenge every part of the witness’s statement that is in conflict with your case. If you fail to challenge the evidence, then you will be held to have accepted it and not be able to call a witness later to contradict it.

Leading questions are a vital part of cross examination, and you must put your version of events to the witness.

Any prior inconsistent statements to the oral evidence given at the hearing should also be put to a witness in cross examination.

  1. Re-examination

This is where you will re-examine your own witness after he/she has been cross-examined. Questions should be confined to matters arising from the cross examination, and new matters should not be introduced or attempts to remedy defects from examination in chief.

Destructive cross examination

When you are using destructive cross examination to challenge the evidence of a witness against your case you need to be aware of the rules of evidence. You can use these rules to impeach a witness by looking at the following 2 categories, and dividing them down into sub categories:

  1. competence
  2. credibility

Competence-is the witness eligible to take the stand?

a) can he take the oath-does he understand what it means?

b) perception-the witness must have perception-he must have been capable of perceiving and noticing things

c) memory-does he have memory/recollection?

d) communication-can he communicate what he saw?

 Credibility

a) does the witness have bias/prejudice/corruption?

b) has he a previous conviction?

c) has he engaged in prior bad acts, short of convictions?

d)has he given prior inconsistent statements?

Execution and Enforcement of Judgments in the District Court

execution of judgments

Have you obtained a Court judgment but don’t know what to do next?

How to execute and enforce a judgment is set out in Order 51 and 51A of the District Court Rules.

Judgments remain in full force and effect for twelve years from the date on which they were given or made. However, no judgment may be executed after six years from the date on which it was given or made without permission of the Court.

An application for permission to execute after six years must be made by notice of motion, which must be served on the person sought to be made liable.

If, at any time during the period of twelve years for which a judgment remains in force, a change takes place, by death, or otherwise, in the parties, you may apply to the Court on notice served on the other party to have the judgment amended accordingly.

If a judgment is given or made against two or more respondents jointly, the judgment or order may be enforced by warrant or otherwise against any of the respondents as if the order had been made against that respondent separately.

Execution against partners

Where a judgment or order is against a firm, execution may issue:

(a) against any property of the partnership within the State;

(b) against any person who has appeared as a party and has failed to deliver a defence, or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner.

If you have obtained judgment and claim to be entitled to issue execution against any other person as being a member of the firm, you may apply to the Court on notice to that other person for permission to do so.

The Court may give permission to issue execution if the liability is not disputed. If the liability is disputed, the Court may order that the liability be tried and determined in any manner in which any issue or question in any action may be tried and determined.

A warrant addressed to a County Registrar may be executed by another County Registrar if the person against whom the warrant has been issued has goods within the county for which that other County Registrar acts.

SEIZURE OF GOODS IN SATISFACTION OF JUDGMENT FOR MONEY OR COSTS

Execution by County Registrar

Judgments for the recovery of money or judgments or orders for costs require all Sheriffs and County Registrars to take in execution the goods of the respondent or of the claimant, as appropriate, to satisfy the debt, costs, value-added tax, expenses, and interest on the debt, as the case may be.

A warrant for signature by the County Registrar authorising execution may be added to every judgment for the recovery of money or judgment.

Warrants authorising execution of judgments for the recovery of money or judgments or orders for costs and warrants for the recovery of rates must be addressed for execution to:

(a) the County Registrar for the county in which the Court area is situated; or

(b) where the Court area comprises portion of two or more counties, to the County Registrar of that county comprising the portion of the Court area in which the person against whom the judgment or order was made resides or carries on any profession, business, or occupation.

Execution of warrants

Where a warrant is for the payment of money and goods are seized under the warrant the person to whom the warrant is addressed may sell the goods by auction within the period fixed by the warrant or, if no period is so fixed, within one month from the day on which the goods were seized, unless the sum for which the warrant was issued and the expenses of taking and keeping the goods are paid before the goods are sold.

However, the Court may from time to time extend the period fixed by the warrant for sale by auction of goods seized.

Where goods are sold the surplus, if any, after retaining:

(a) the amount to be levied; and

(b) all reasonable expenses actually incurred in auctioning the goods; and

(c) the expenses of taking and keeping the goods,

must be paid to the person from whom the goods were seized.

Where the person against whom a warrant is issued pays the amount to be levied by the warrant, the person responsible for the execution of the warrant must refrain from executing the warrant.

Warrant to seize goods

Where the Court has given judgment for a sum of money or made an order for the payment of a sum of money for costs, a Clerk may release a warrant to seize goods of the person against who the judgment or order has been made for the purpose of satisfying the judgment debt where:

(a) any Act under which the judgment was given or order was made either specifies no method of enforcement of the order or provides for enforcement by distress, and

(b) either—

(i) the time for appealing against the judgment or order has expired and no appeal has been brought, or

(ii) an appeal has been dismissed and the Circuit Court has not issued execution.

Issue of a warrant

A warrant is issued when the warrant is signed by the Judge and issued by the Clerk to the person requesting its issue.

A warrant is valid for the purpose of execution for one year after the day it is issued.

However, the Court may from time to time extend the period of the validity of the warrant for the purpose of execution. This extension, though, cannot be made after the time period of the warrant has expired.

WARRANTS OF DELIVERY

If an order is made by the Court—

(a) for delivery of goods; or

(b) for delivery of goods or recovery of their assessed value—

a Clerk may issue a warrant of delivery.

ENFORCEMENT UNDER THE ENFORCEMENT OF COURT ORDERS ACTS 1926 TO 2009

Proceedings for the enforcement of a judgment under the Enforcement of Court Orders Acts 1926 to 2009 may be brought, heard and determined at any sitting of the Court for the Court area in which the debtor is ordinarily resident.

Summons for attendance of debtor and statutory declaration

When a debt is due on foot of a judgment of a competent court and the creditor requires the attendance of the debtor before the Court for examination as to the debtor’s means you proceed as follows.

You  lodge with the Clerk in duplicate for issue a summons in the Form 51A.01 Schedule C and the statutory declaration (in the Form 51A.03 Schedule C, modified as appropriate) required by section 15(2) of the 1926 Act.

The Clerk must enter a return date on the summons and list the matter for hearing.

You must serve the summons on the debtor at least 14 days or, if service is by registered post, at least 21 days, before the return date.

File the original of the summons, and a statutory declaration of service of the summons, with the Clerk at least four days before the return date.

Statement of means

The summons, in addition to requiring the attendance of the debtor in Court on the return date for examination as to his or her means, also requires the debtor to complete and file with the Clerk not less than one week before the return date a statement of means (Form 51A.02 Schedule C) attached to the summons.

Creditor’s proofs

At the examination the creditor or creditor’s solicitor must produce to the Court:

(a) the judgment on which the creditor relies or other evidence of the original debt due to the creditor under the judgment,

(b) a certificate in the Form 51A.04 Schedule C signed by the creditor or creditor’s solicitor setting out the amount outstanding at the date of the certificate, and

(c) evidence that the debtor is ordinarily resident in the Court area in which the examination is taking place.

Instalment order

An instalment order may be served on the debtor.

An instalment order continues in force until the expiration of 12 years from the date of the judgment to which it relates, unless the debt and costs payable have been duly paid in full.

Variation of an instalment order

Where a person wishes to apply to the Court under section 5 of the 1940 Act to vary the terms of an instalment order, that person must apply to the Clerk for the issue of a summons in the Form 51A.05, Schedule C, modified as appropriate.

 Failure to comply with an instalment order

If the debtor fails to comply with an instalment order the creditor can apply for a summons  in the Form 51A.06, Schedule C, modified as appropriate and a statutory declaration (in the Form 51A.03 Schedule C, modified as appropriate).

The Clerk must enter a return date on the summons and list the matter for hearing.

The creditor must serve the summons on the debtor.

This summons must be served personally on the debtor (unless the Court directs service otherwise) at least 14 days before the return date of the summons.

The original of the summons, and a statutory declaration of service of the summons, must be filed with the Clerk at least four days before the return date.

Where the Court requests the creditor and the debtor to seek resolution by mediation within such period as the Court may specify, the Court must adjourn the proceeding generally with liberty to re-enter it.

Where the creditor wishes to re-enter the proceeding, he or she must apply in writing to the Clerk for re-entry, certifying in that application that mediation has failed to achieve a resolution.

The Clerk must re-list the proceeding for hearing and must send notice of the re-listing to the debtor, to any solicitor who appeared for the debtor on the initial hearing of the summons, and to the creditor by ordinary post.

Where the Court, being satisfied that (i) the instalment order was duly served on the debtor and (ii) the debtor has failed to comply with the instalment order, is also satisfied, beyond reasonable doubt, on the evidence presented, that the creditor has established that—

(a) the failure to pay the sum in respect of which the debtor has made default is not due to the debtor’s mere inability to pay but is due to his or her wilful refusal or culpable neglect, and

(b) the debtor has no goods which could be taken in execution under any process of the Court by which the judgment, order or decree for the debt was given,

and the Court makes an order under section 6(7)(c) or section 6(7)(d) of the 1940 Act, that order must be in the Form 51A.07 or 51A.08, Schedule C, as appropriate.

A warrant to enforce an order for arrest and imprisonment pursuant to section 6(7) of the 1940 Act must be in the Form 51A.09 Schedule C and may be added to the form of an order under section 6(7)(c) or section 6(7)(d)of the 1940 Act.

Where:

(a) a notice of appeal against an order for arrest and imprisonment under section 6(7) of the 1940 Act has been lodged; and

(b) a recognisance (if required) has been entered into; and

(c) the warrant to enforce the order has not been issued,

the warrant must not be issued until the appeal has been decided or the appellant has failed to perform the conditions of the recognisance, as the case may be.

Clerk to secure return of warrant where amount due is paid to him or her

Where a warrant to enforce an order for arrest and imprisonment under section 6(7) of the 1940 Act has been issued but not executed and the amount of the arrears of instalments and costs specified in the order is paid to the Clerk, the Clerk must forthwith:

(a) notify the Superintendent of the Garda Síochána to whom the warrant was addressed that payment has been made; and

(b) request the Superintendent to return the warrant for cancellation by the Court.

Registration of judgments of the Court

Any judgment or order for costs issued or made by the Court providing for the payment of a sum of money may be registered (under section 25 of the Courts Act 1981) in the Central Office of the High Court in the like manner as a judgment of the High Court may be registered in that Office.

Enforcement of PIAB orders to pay and judgments of EU courts

The procedures above which relate to the enforcement of any judgment of a court apply to any order to pay issued by the Personal Injuries Assessment Board and to a judgment or other instrument issued by a court in a Member State of the European Union other than the State.

Service of Documents in Civil Proceedings in the District Court

service of documents

The service of your documents in the correct way is an important part of a successful outcome to your legal proceedings.

Service on a person

There are two ways of serving documents on a person: registered post or personal service.

A document in civil proceedings may be served by sending a copy of the document by registered prepaid post in an envelope addressed to the person to be served at his or her last known residence or place of business in the State.

Personal service of a document must be served:

(a) by delivering a copy of the document to the person to be served, or

(b) where it appears by evidence that the person to be served is personally within the jurisdiction and that due and reasonable diligence has been exercised in endeavouring to effect personal service on him or her, by leaving a copy of the document for the person to be served at his or her last or most usual place of residence, or at his or her office, shop, factory, home or place of business with:
(i) the husband or wife of the person to be served; or

(ii) the civil partner of the person to be served; or

(iii) a child or other relative of the person to be served, who apparently resides with the person to be served; or

(iv) a child or other relative of the husband, wife or civil partner of the person to be served, who apparently resides with the person to be served; or

(v) any agent or employee of the person to be served; or

(vi) the person in charge of the house or premises where the person to be served usually resides,

provided that the person with whom the copy is left:

(I) is not under the age of 16 years, and

(II) is not himself or herself the person beginning the civil proceedings.

Service on a company

A document may be served on a company by leaving a copy of the document at or sending a copy of the document by post to the registered office of the company or, if the company has not given notice to the Registrar of Companies of the situation of its registered office, by registering the document at the office of the Registrar of Companies.

Service on a local authority or an unincorporated body

A document may be served on a local authority, statutory board or body, or an unincorporated society or club by leaving a copy of the document with any employee of the authority, board, body, society or club at its principal office or by sending a copy of the document by prepaid registered post to its principal office.

 Service on a partnership

Where persons are sued as partners in the name of their firm, a copy of the document must be served either:

(a) on any one or more of the partners; or

(b) at the principal place within the State at which the business of the partnership is carried on, on any person having at the time of service the control or management of the partnership business there;

and such service must be deemed good service on the firm sued, whether any of the members of the partnership are outside the State or not.

Acceptance of service

Service of a document must be deemed good service if the Court is satisfied that a solicitor acting on behalf of the person to be served has accepted service of the document.

Substituted service

Where the Court is satisfied that, for good cause shown, service of a document cannot be effected in a manner or in any manner prescribed by these Rules, the Court may make an order:

(a) for substituted or other service; or

(b) for the substitution for service of notice by advertisement or otherwise.

An application for an order for substituted or other service may be made ex parte.

Where the Court is satisfied that any particular mode of service prescribed is at any time not then available, the Court may by order in writing direct that the service of documents or of any particular class of documents be effected in such other manner as it thinks proper.

Service deemed good

  1. The Court may, if it considers it just to do so, deem the service of any document actually effected in any civil proceedings to be good and effected service, even though the service was not effected in a manner prescribed by these Rules.

Proof of service

A person who serves a document may prove the service:

(a) by evidence given orally before the Court; or

(b) by statutory declaration as to service made in accordance with the Statutory Declarations Act 1938.

A statutory declaration as to service must be in the Form 41.01, 41.02 or 41.03, Schedule C, as the case may be.

When service of a document on a person has been effected by registered prepaid post, a statutory declaration of service, which must be in the Form 41.01, Schedule C must be made not earlier than ten days after the day on which the envelope containing the copy of the document for service was posted.

A statutory declaration of service by registered post must:

(a) be made by the person who posted the envelope; and

(b) exhibit the certificate of posting; and

(c) state, where appropriate, that the original document was duly stamped at the time of posting, and

(d) state that the envelope has not been returned undelivered to the sender.

Where a statutory declaration is made as to service, and filed with the Clerk:

(a) the statutory declaration is prima facie evidence of the mode, time and place of service as set out in the statutory declaration; and

(b) it is not necessary for the person who effected service to attend in person at the Court to prove service on oral evidence,

but the Court may, if it considers it necessary, require the person who effected service to attend before it and give evidence concerning the service notwithstanding the making of a statutory declaration.

Deemed time of service

  1. Where service of a document is effected by registered prepaid post or by ordinary prepaid post, the document must be deemed to be served on the person to whom it was directed at the time at which the envelope containing the copy of the document for service would be delivered in the ordinary course of post.

Time for service before hearing

Save where otherwise provided by another enactment or by these Rules, a document which must be served before a hearing in the Court must be served at least seven days or, in the case of service by registered prepaid post, at least 21 days, before the date fixed for the hearing concerned.

Time for filing before hearing

Subject to any order or direction of the Court, a document which must be filed with the Clerk before a hearing in the Court, including any statutory declaration of service, must be filed at least four days or, in the case of filing by prepaid post, at least seven days, before the date fixed for the hearing concerned.

Service under Civil Liability and Courts Act 2004

The delivery or service of any notice for the purposes of section 8 or section 17 of the Civil Liability and Courts Act 2004 must be in the manner prescribed in section 4 of that Act.

Debt Claims in the District Court-How to Obtain Judgment in Default

judgment in default district court

Do you need to pursue a debt in the District Court?

Are you being pursued for a debt?

Confused about what’s involved in obtaining a judgment where the debtor just ignores the Claim Notice and does not enter an Appearance or Defence?

Let’s take a look at what happens then.

If a respondent who has been served with a claim notice in a debt claim does not serve and file an appearance or serve a defence within the time prescribed by Order 42, or within any other time fixed by the Court for serving and filing his or her appearance or for serving his or her defence, you may apply for an order of judgment in default. (The time prescribed by Order 42 is 28 days).

You must file your application with the Clerk and it must be accompanied—

(i) by an affidavit or statutory declaration (Form 41.01, 41.02 or 41.03, Schedule C, as appropriate) of service of the claim notice; and

(ii) by a certificate (Form 47.01, Schedule C), which may be endorsed on the affidavit of debt signed by the claimant’s solicitor or by the claimant (if acting in person) that no appearance, notice requiring particulars or defence has been received from the respondent; and

(iii) by an affidavit of debt verifying the claimant’s claim (Form 47.02 or 47.03, Schedule C, as appropriate); and

(iv) by a form of judgment (decree) (Form 47.04 or 47.05, Schedule C, as appropriate).

Where a respondent has signed a consent to judgment which has been duly witnessed, the applicant may file an affidavit (Form 47.06, Schedule C) verifying the consent instead of an affidavit of debt; and where the consent is to judgment by instalments, the form of judgment (decree) in Form 47.07, Schedule C must be used.

Your affidavit verifying your claim must be sworn (or the certificate referred to above must be given) within one month before the date of the application for judgment. Judgment may not be given where the affidavit verifying the claimant’s claim was not sworn (or the certificate was not given) within one month before the date of the application for judgment.

Where your application for judgment includes a claim in respect of value-added tax, the affidavit (or certificate) must verify whether or not value-added tax is payable by the claimant on his or her legal costs, and if payable whether or not the sum payable is recoverable by the claimant from the Revenue Commissioners.

If you apply for a Judgment as set out above, and a Judge is satisfied that an order should be made, the Judge may make such an order otherwise than at a sitting of the Court, and may fix the amount of costs and interest as is appropriate in the circumstances in accordance with the Schedule of Costs.

If a Judge is not satisfied that an order should be made, the Judge may, or if the claimant so requests, the Judge must, refer the matter to the Court for decision.

If the Judge refers an application to the Court or an application is assigned a return date, the Court may on hearing the application, and any evidence the Court considers appropriate—

(a) make the order sought in the application;

(b) direct that a further affidavit or affidavits be filed;

(c) give directions as to the application;

(d) refuse to make the order sought in the application;

(e) make any other order it considers appropriate.

(6) The Clerk must notify the claimant of any order made by the Judge or (if the application has been referred to the Court) any decision or order of the Court.

Even if you obtain an order for judgment in default against a respondent as set out above you may enforce the order and continue the proceeding against any other respondent. In the event that the claimant recovers by enforcement or otherwise the full amount of his claim including costs against any respondent, further proceedings against any remaining respondent must be stayed save in respect of any further costs as may be claimed against any other respondent.

If a respondent serves a counterclaim which is a debt claim, what’s set out above applies as if—

(a) the respondent were the claimant;

(b) a reference to the appearance in that rule were a reference to the appearance to the counterclaim; and

(c) the claimant were the respondent.

Setting aside judgment by default

A party against whom a judgment in default has been obtained under may apply by notice of motion (Form 44.02 Schedule C with the necessary modifications) to the Court  in which the judgment was obtained for an order to vary or set aside the judgment on the ground that the same was obtained by fraud, misrepresentation, surprise, mistake or other sufficient ground.

Service of the notice of motion does not operate as a stay of proceedings unless the respondent lodges with the Clerk the amount for which judgment was given and the amount fixed for costs.

If a party fails to comply with an order made by the Court in civil proceedings, the Court may, where it considers it just to do so, dismiss the civil proceedings or strike out any defence or counterclaim and proceed to give judgment or make any order (including any order for costs) as is then appropriate as if the party in default had not pleaded.

You might also want to read also about how to commence proceedings in the District Court.

Judgment in Default in Non Debt Claims

Order 47A of the District Court rules sets out how to obtain judgment in default in non debt claims.

How to Begin Civil Proceedings in the District Court

district-court-legal-proceedings

The District Court now has a jurisdictional limit of €15,000.

So, if you need to pursue a debt or a claim for damages for breach of contract, negligence, or on any ground for less than €15,000 you will commence proceedings in the District Court.

To do this, you file, for issue and service, a claim notice in the District Court.

What Must You Put in the Claim Notice?

A claim notice must—

(a) state the full name and address of the claimant and an address for service of documents on the claimant; and

(b) if the claimant sues in person, state an address for service of documents on the claimant; and

(c) if the claimant sues or the respondent is sued in a representative capacity, state the capacity in which the claimant sues or the respondent is sued in a representative capacity; and

(d) state the name and address of the respondent; and

(e) if the claimant sues by a solicitor, state the name or firm and business address of the solicitor and also, if the solicitor is the agent of another, the name or firm and business address of the principal.

A claim notice must contain a statement of claim which must—

(a) contain, in a summary form, a statement of all material facts on which the claimant relies, but not evidence by which those facts are to be proved;

(b) contain the necessary particulars of every fact;

(c) if the claim arises by or under any enactment, identify the specific provision of the enactment that is relied on;

(d) state specifically the amount or other relief or remedy sought; (e) state the place where and the date when the claim arose.

A statement of claim in a debt claim must state that the claim is for debt or liquidated damages, must specify the amount claimed by way of debt or liquidated damages and must include particulars of the claimant’s demand for payment.

Where the claim is founded on any written document, the statement of claim must state the date of the document and the parties to the document and:

(a) if the claim is for the payment of money, the amount claimed, or

(b) if the claim is for breach of contract, the alleged breach or breaches of the contract.

A statement of claim must contain a list of all correspondence and other documents on which the claimant will rely at the trial including the date if any and a brief description of each document.

In a debt claim, the claim notice must be indorsed with a statement as follows—

“If you pay the amount of €…… and costs of €……. to the claimant or the claimant’s solicitor within ten days and without filing and serving an appearance and defence you may avoid further costs.”.

If a claim notice is indorsed  as set out in the preceding paragraph, and the respondent pays the amounts claimed within the time limited for filing and serving an appearance and defence, then the civil proceeding is concluded.

Any claim by a consumer for damages under section 74 of the Consumer Protection Act 2007 (No. 19 of 2007) must be commenced by the issue and service in accordance with this Order of a claim notice, entitled in the matter of section 74 of the Consumer Protection Act 2007 and otherwise in the Form 40.01, Schedule C with such modifications as are appropriate.

 

Where Do You Commence Proceedings?

A claim notice must be filed with and issued by the Clerk for the Court area:

(a) in which the respondent or one of the respondents ordinarily resides or carries on any profession, business or occupation,

or at the election of the claimant,

(b) in proceedings founded on contract, (except proceedings arising from an agreement under the Consumer Credit Act 1995 or the European Communities (Consumer Credit Agreements) Regulations 2010 (S.I. 281 of 2010)) in which the contract is alleged to have been made, or

(c) in proceedings founded on tort, in which the tort is alleged to have been committed, or

(d) in ejectment proceedings, in which the lands the subject of the proceedings are situated.

Unless the Claim Notice is to be served outside the State a claim notice must be in Form 40.01, Schedule C, or in Form 40.02, Schedule C in a debt claim.

Appearance and defence

A respondent who intends to defend civil proceedings must give, or send by post, to the claimant or solicitor for the claimant an appearance and defence, in the Form 42.01, Schedule C, not later than 28 days after the service on him or her of the claim notice, and must at the same time file a copy of his or her appearance with the Clerk.

A defence must—

(a) contain a statement that the respondent intends to defend the claim notice; and

(b) state the name and address of the respondent and an address for service in the European Union at which documents required to be served on the respondent may be left; and

(c) if the respondent defends by a solicitor, state the name or firm and business address within the European Union of the solicitor and also, if the solicitor is an agent of another, the name or firm and business address of the principal.

Appearance and defence to debt claim

An appearance and defence in a debt claim must be in Form 42.03, Schedule C. A respondent who intends to defend a debt claim must give, or send by post, to the claimant or solicitor for the claimant his or her appearance and defence not later than 28 days after the service on him or her of the claim notice, and must at the same time file a copy of his or her appearance with the Clerk.

A defence in a debt claim must state whether the claim is:

(a) disputed as to both liability and amount;

(b) disputed only as to amount and if so, what amount is admitted to be due;

(c) admitted in full and if so, whether the respondent proposes to pay immediately or requires time for payment.

Appearance and defence in claims other than debt claims

Unless the respondent requires further particulars of statement of claim, a respondent to a claim other than a debt claim who contests or disputes all or part of a claimant’s claim must serve an appearance and defence in Form 42.01, Schedule C on the claimant at the address for service stated in the claim notice and must file a copy of the appearance with the Clerk.

A defence must state which of the facts stated in statement of claim are—

(a) admitted;

(b) denied;

(c) not admitted.

A respondent who, in the defence, does not state whether a fact stated in statement of claim is—

(a) admitted;

(b) denied;

(c) not admitted—

must be taken to admit the fact.

A respondent who states that a fact stated in statement of claim is denied must—

(a) give reasons for denying the fact; and

(b) if the respondent intends to prove a fact different from that stated in the statement of claim, state, with necessary particulars, the fact that the respondent intends to prove.

The respondent must state specifically, with particulars, any fact or matter which—

(a) makes the claim of the claimant not maintainable; or

(b) if not stated specifically, might take the claimant by surprise; or

(c) raises questions of fact not arising out of the statement of claim. (6) If the defence arises by or under any enactment, the defence must identify the specific provision relied on.

A defence must contain a list of all correspondence and other documents (other than any documents already identified in the statement of claim) on which the respondent will rely at the trial including the date if any and a brief description of each document.

The respondent may not rely on the defence of tender unless, within seven days after filing an appearance and defence, the respondent pays to the Clerk the amount alleged to have been tendered.

A respondent who has entered an appearance and defence in a debt claim which complies with the requirements of the rule above is not required to serve and file a defence which complies with the requirements of this rule unless an order has been made in the application for judgment on affidavit refusing judgment and giving permission to defend, in which case, the respondent must serve and file a defence which complies with the requirements of this rule within 21 days after the order is made.

Late filing and service of appearance and defence

A respondent may serve an appearance and defence and file an appearance at any time after the service of a claim notice with the written consent of the claimant, but an appearance and defence may not be served, except by permission of the Court, if the claimant has obtained judgment in default of appearance.

NOTICE REQUIRING COPY DOCUMENTS OR FURTHER PARTICULARS

This does not apply to debt claims.

A respondent may at any time before or at the time of delivery of a defence apply to the claimant in writing:

(a) for copies of all or any of the documents listed in the statement of claim on which the claimant relies or referred to in the statement of claim (Form 42.06, Schedule C);

(b) requiring the claimant to provide further particulars which the respondent asserts are reasonably necessary as to specified matters in the statement of claim (Form 42.07, Schedule C).

A claimant may within 28 days after delivery of a defence apply to the respondent in writing:

(a) for copies of all or any of the documents listed in the defence on which the respondent relies or referred to in the defence (Form 42.06, Schedule C);

(b) requiring the respondent to provide further particulars which the claimant asserts are reasonably necessary (Form 42.07, Schedule C).

COUNTERCLAIM

A respondent may set off or set up any right or claim the respondent alleges he or she has against the claimant as a counterclaim against the claim of the claimant, whether the respondent’s claim is a claim in damages or not.

A set off or counterclaim has the same effect as a cross action, so as to enable the Court to determine both the claim and the counterclaim at the same trial.

A counterclaim must be in Form 42.08, Schedule C.

STAY OR DISMISSAL OF CLAIM AND STRIKING OUT STATEMENT OF CLAIM OR DEFENCE

The Court may at any stage of the civil proceedings order to be struck out or amended any matter in any pleading which is unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the civil proceedings.

The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the claim or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the claim to be stayed or dismissed, or judgement to be entered accordingly, as the Court considers just.

What to Do Now

Sometimes, especially in debt collection matters, a solicitor’s letter to a debtor may have the desired effect and eliminate the need to bring proceedings in Court.

If you need a solicitor to handle things for you contact us.